FMLA obligations for growing employers

Not legal advice: consult employment counsel. This page is general information for an employer approaching or crossing 50 employees. Every statement is attributed to the federal regulation text we read on 14 October 2026, and nothing here is a determination about any employer or employee.

What this page adds

The adjacent pages cover the surrounding picture: how a shared-employer arrangement divides responsibilities in co-employment explained, role classification in the FLSA exemption checklist, and per-hire paperwork in the new hire compliance checklist. This page is the FMLA lookup: who is covered, who is eligible, what notices are due and what records to keep.

Who is a covered employer

The regulation at 29 CFR 825.104 (retrieved 14 Oct 2026) states that a private-sector employer is covered if it employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year. The same section covers public agencies and public and private elementary and secondary schools regardless of headcount, and extends coverage to anyone acting in an employer’s interest and to successors in interest. It also treats separate entities as a single employer under an integrated-employer test that looks at common management, interrelated operations, centralised control of labour relations and common ownership or financial control.

Who is an eligible employee

Coverage of the employer is separate from eligibility of the employee. 29 CFR 825.110 (retrieved 14 Oct 2026) requires all three of the following: employment by the employer for at least 12 months (not necessarily consecutive, with a rule about breaks in service of more than seven years); at least 1,250 hours of service in the 12 months immediately before leave begins; and work at a site where the employer has 50 or more employees within 75 miles, measured when the employee gives notice of the need for leave. The section states that the 12-month and hours-of-service tests are determined as of the date the leave is to start (the 75-mile worksite count is measured when the employee gives notice of the need for leave, as above), and that where an employer’s records are inaccurate the employer bears the burden of showing the employee did not meet the hours requirement. The 75-mile rule means an employer can be covered while particular employees at a small or remote site are not eligible.

Qualifying reasons and the entitlement

29 CFR 825.112 (retrieved 14 Oct 2026) lists six circumstances: birth of a child and bonding; adoption or foster placement; care of a spouse, child or parent with a serious health condition; the employee’s own serious health condition that prevents them from doing the job; a qualifying exigency tied to a spouse, child or parent on covered active duty; and care for a covered servicemember with a serious injury or illness. Under 29 CFR 825.200 (retrieved 14 Oct 2026), an eligible employee may take up to 12 workweeks of leave in a 12-month period for the first five reasons, and up to 26 workweeks in a single 12-month period to care for a covered servicemember; that 26 weeks is a combined total across qualifying reasons within the period, not an extra 26 weeks per reason.

The same section lets the employer choose how the 12-month period is measured: the calendar year; a fixed 12-month year such as a fiscal or anniversary year; a period measured forward from the first leave; or a rolling period measured backward. It states the method must be applied consistently and uniformly to all employees, that changing methods requires at least 60 days’ notice, and that if the employer makes no selection the method most beneficial to the employee applies. 29 CFR 825.202 (retrieved 14 Oct 2026) adds that leave may be taken intermittently or on a reduced leave schedule when medically necessary, and 29 CFR 825.207 (retrieved 14 Oct 2026) states that “FMLA leave is unpaid leave” but that accrued paid leave can be substituted, running concurrently with the unpaid FMLA leave.

The four notices

29 CFR 825.300 (retrieved 14 Oct 2026) sets out four. General notice: a covered employer must post it where employees and applicants can readily see it (electronic posting is sufficient), even if no employee is eligible; an employer with any eligible employees must also distribute it, through a handbook or written leave guidance or by giving it to each new hire. The WHD prototype can be used, and the notice must be provided in a language readable by employees if a significant portion of the workforce is not literate in English.

Eligibility notice: within five business days, absent extenuating circumstances, after an employee requests leave or the employer learns the leave may be FMLA-qualifying, the employer must tell the employee whether they are eligible; if not eligible, it must state at least one reason. Rights and responsibilities notice: a written notice of the employee’s obligations and the consequences of not meeting them, provided each time the eligibility notice is given. Designation notice: once the employer has enough information to decide, it must notify the employee in writing within five business days, absent extenuating circumstances, whether the leave is designated as FMLA leave. The section also states that failing to follow the notice requirements may constitute interference with FMLA rights. We could not read DOL Fact Sheet #77B (HTTP 404), so we cite only the regulation for notice content and timing.

Health benefits during leave

29 CFR 825.209 (retrieved 14 Oct 2026) states that during FMLA leave an employer must maintain the employee’s group health plan coverage on the same conditions as if the employee had been continuously employed, and that if family member coverage is provided it must be maintained. 29 CFR 825.215 (retrieved 14 Oct 2026) states that on return, benefits are restored in the same manner and at the same levels as when leave began; that employees cannot be made to requalify for benefits they had before leave; and that the employer may keep paying premiums during unpaid leave or pay and recover the cost from the employee on return. Premium-payment arrangements and the possible effect of non-payment are items the rights and responsibilities notice has to cover (825.300(c)).

Job restoration and the key-employee exception

29 CFR 825.214 (retrieved 14 Oct 2026) states that on return an employee is entitled to the same position or an equivalent position with equivalent benefits, pay and other terms and conditions, and 29 CFR 825.220 states that employers cannot use FMLA leave as a negative factor in employment actions such as hiring, promotions or disciplinary actions, nor count it under no-fault attendance policies. 29 CFR 825.216 (retrieved 14 Oct 2026) limits the right: an employee has no greater restoration right than if they had worked continuously, and the employer bears the burden of showing the employee would not otherwise have been employed. The section also addresses ended terms or projects, inability to perform an essential function, and fraudulently obtained leave. Its key-employee exception allows denial of restoration to a salaried eligible employee who is a key employee under 825.217(c) if denial is necessary to prevent “substantial and grievous economic injury to the operations of the employer.” We did not read 825.217, so we do not state who counts as a key employee or what notice the exception requires.

Records

29 CFR 825.500 (retrieved 14 Oct 2026) requires covered employers to keep FMLA records for no less than three years and make them available to DOL on request. For an employer with eligible employees the list includes basic payroll and identifying data, dates and hours of FMLA leave, written leave notices and the employer’s written notices, documents on paid and unpaid leave policies, records of premium payments, and records of any dispute over designating leave as FMLA. Medical certifications and histories created for FMLA must be kept as confidential medical records in files separate from personnel files, with stated exceptions such as supervisors who need to know about work restrictions.

Joint employment, PEOs and state law

29 CFR 825.106 (retrieved 14 Oct 2026) addresses joint employment. As we read it, it states that a PEO “does not enter into a joint employment relationship with the employees of its client companies when it merely performs such administrative functions” as payroll and benefits, but that if it has the right to hire, fire, assign, or direct and control the client’s employees, or benefits from their work, that may lead to a joint-employer determination depending on all the facts. It states that only the primary employer is responsible for giving required notices, providing FMLA leave and maintaining health benefits, and that where a PEO is a joint employer the client employer most commonly would be the primary employer. It also states that jointly employed workers count toward both employers’ coverage and eligibility thresholds. Which entity holds those roles in a given arrangement is a question for the contract and counsel, not this page. 29 CFR 825.701 states that nothing in the FMLA supersedes a State or local law that provides greater family or medical leave rights; we read no state agency page and state no state rule.

Where this sits

Where this sits: the federal anti-discrimination statutes begin at 15 employees (20 for age), well below the 50-employee FMLA test. Those thresholds, the EEO-1 report and the records rules are in the EEOC obligations guide.

What we could not confirm

We could not retrieve DOL Fact Sheet #77B (HTTP 404) and the DOL Wage and Hour pages refused our requests (HTTP 403), so no statement here relies on them. Regulation wording above is paraphrase except for short quoted phrases; read the eCFR text directly before relying on any detail. We did not read 29 CFR 825.217 (key employee definition), 825.214 and 825.220 (restoration and protections), or any state leave law. Penalty amounts, form numbers and certification timeframes are not stated here because we did not verify them against the current text.