Frequently Asked Questions

Reviewed by Roan Callister (RC), Editor-in-Chief — Employment Law & FMLA Litigation Practice. Updated May 2026.

Who is eligible for FMLA leave?

FMLA eligibility requires satisfying three conditions simultaneously. First, the employee must work for a covered employer — a private employer with 50 or more employees within 75 miles of the employee’s worksite; federal, state, and local government agencies regardless of size; and public and private elementary and secondary schools regardless of size. Private employers with fewer than 50 employees within 75 miles are not covered by the federal FMLA (though many states have their own family leave laws covering smaller employers).

Second, the employee must have worked for the employer for at least 12 months. The 12 months need not be consecutive — prior periods of employment with the same employer within the past seven years count, with exceptions for service in the uniformed services.

Third, the employee must have worked at least 1,250 hours during the 12-month period immediately before the leave begins. This is approximately 24 hours per week on average, which excludes many part-time workers from FMLA coverage even at covered employers.

All three conditions must be met at the time leave is requested. An employee who meets the employer coverage and tenure requirements but works 20 hours per week would not be FMLA-eligible. State leave laws — California CFRA, New York PFL, New Jersey FMLA, Massachusetts PFML, and others — may cover employees who do not meet federal FMLA eligibility requirements.

What qualifies as a serious health condition under the FMLA?

A serious health condition is defined in the FMLA regulations (29 C.F.R. § 825.113) as an illness, injury, impairment, or physical or mental condition that involves either inpatient care (an overnight stay in a hospital, hospice, or residential medical care facility) or continuing treatment by a health care provider.

Continuing treatment covers conditions requiring three or more consecutive calendar days of incapacity plus two or more treatments by a health care provider; any period of incapacity due to a chronic condition requiring periodic visits to a health care provider; permanent or long-term conditions under continuing supervision; or conditions requiring multiple treatments for restorative surgery or conditions that would require an absence of more than three days without such treatment.

Chronic conditions are a particularly common basis for FMLA leave: asthma, migraine disorder, Crohn’s disease, diabetes, depression, anxiety disorders, epilepsy, and similar conditions qualify if they require at least two visits per year to a health care provider and cause periodic incapacity. The condition does not need to be life-threatening; it needs to meet the regulatory definition of continuing treatment or inpatient care.

Routine minor illnesses — colds, influenza that does not meet the continuing treatment criteria, cosmetic treatments — generally do not qualify. Pregnancy, childbirth, and prenatal care qualify as serious health conditions.

What is the difference between interference and retaliation?

Interference and retaliation are the two primary legal theories under the FMLA, arising from different provisions of the statute and requiring different elements of proof.

Interference (29 U.S.C. § 2615(a)(1)) prohibits employers from restraining, denying, or interfering with the exercise of FMLA rights. An interference claim does not require proof that the employer acted with retaliatory intent — only that the employer denied, delayed, or made more difficult the exercise of FMLA rights. Examples: refusing to approve a qualifying leave request, failing to designate qualifying leave as FMLA, counting FMLA absences in an attendance point system, failing to maintain health benefits during leave, or returning an employee to a position that is not equivalent to their pre-leave position.

Retaliation (29 U.S.C. § 2615(a)(2)) prohibits discrimination against employees who exercise FMLA rights. A retaliation claim requires proof of adverse employment action causally connected to the exercise of FMLA rights — the “but for” or “motivating factor” standard depending on the circuit. Examples: termination shortly after returning from FMLA leave, demotion following an FMLA leave request, negative performance review citing FMLA absences, exclusion from advancement opportunities after using intermittent leave.

The practical difference: retaliation claims tend to produce higher damages because they involve adverse employment action (termination, demotion) rather than administrative interference. Interference claims are broader but may produce lower damages when the interference did not result in job loss. Many FMLA cases plead both theories.

When are liquidated damages not doubled?

Liquidated damages are automatic unless the employer successfully raises the good faith defense. To avoid liquidated damages, the employer must prove two independent elements: (1) the act or omission that constituted the violation was made in good faith; and (2) the employer had reasonable grounds to believe the conduct did not violate the FMLA. Both elements must be proven by a preponderance of the evidence; proving only one is insufficient to avoid doubling.

Courts interpret the good faith defense narrowly. Employers with dedicated HR departments, employment counsel, or established FMLA compliance policies face a high burden showing good faith ignorance of FMLA requirements — the DOL publishes detailed regulations and compliance guides, and ignorance of these publicly available resources is generally not accepted as good faith. The defense is more available to small employers without HR expertise who made a genuine procedural error in unfamiliar circumstances.

Examples where the defense has succeeded: an employer that relied on incorrect legal advice from counsel in an area of genuine legal ambiguity; a small employer that made an administrative error in calculating the 12-month leave entitlement without any retaliatory intent; and situations where the law itself was unsettled in the relevant circuit at the time of the violation. The defense rarely succeeds in retaliation cases, where employer intent is directly at issue, because knowing retaliatory intent is incompatible with good faith.

What is the filing deadline for FMLA claims?

The FMLA statute of limitations is two years from the date of the last event constituting the alleged violation, extended to three years for willful violations. A willful violation is one where the employer knew or showed reckless disregard as to whether its conduct was prohibited by the FMLA — a standard that mirrors the FLSA willfulness standard and requires more than negligence.

Unlike Title VII, the Americans with Disabilities Act, and the Age Discrimination in Employment Act, the FMLA does not require administrative exhaustion — you do not need to file a charge with the EEOC or obtain a right-to-sue letter before filing suit in federal court. FMLA claimants may file directly in federal district court or file a complaint with the Department of Labor’s Wage and Hour Division. The DOL complaint route is free but limits recovery to back pay and reinstatement; federal court allows full damages including liquidated damages and attorney fees.

The statute of limitations begins running at the date of the adverse action, not when the employee learns of its connection to FMLA leave. In cases where the employer concealed the FMLA-related motivation for adverse action, the discovery rule may toll the limitations period in some circuits. Prompt action — documenting the violation, consulting counsel, and filing before the two-year deadline — is essential.

Does the FMLA cover intermittent leave?

Yes. Intermittent leave — leave taken in separate blocks of time rather than a single continuous period — is explicitly authorized by the FMLA and its regulations for qualifying serious health conditions. An employee with a chronic condition (migraines, Crohn’s disease, depression, diabetes) may take intermittent leave as needed for condition-related incapacity without prior notice, subject to calling in according to the employer’s reasonable notification procedures.

Employers cannot count FMLA-designated intermittent absences against an employee’s attendance record, use intermittent leave in performance evaluations in a negative way, or discipline employees for patterns of absence that are attributable to a qualifying condition. If an employer suspects abuse of intermittent leave — for example, because absences cluster around weekends or holidays — it may request recertification of the medical condition and ask the health care provider whether the claimed condition is consistent with the pattern. The employer cannot discipline for the absences themselves while FMLA designation is in place, even during the recertification process.

Intermittent leave is the most frequently litigated FMLA context because it creates ongoing scheduling friction for employers. The tension between an employer’s operational needs and an employee’s right to intermittent leave is real, but the statutory framework strongly favors the employee’s right to take qualifying leave without adverse consequence.

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