Common FMLA Misconceptions

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

Misunderstandings about the FMLA’s scope and requirements lead employees to either overestimate their protections (and fail to take protective steps because they incorrectly believe the law applies) or underestimate them (and fail to pursue meritorious claims). This guide corrects five of the most commonly held and consequential misconceptions about how the FMLA actually works.

Misconception 1: “The FMLA Applies to All Employers”

The belief: any employer in the United States is covered by the FMLA and must provide job-protected leave to eligible employees.

The reality: the FMLA’s employer coverage threshold significantly limits who is protected. Private employers must have 50 or more employees within 75 miles of the employee’s worksite to be covered. The 50-employee count includes part-time and temporary employees if they are on the payroll for each working day in 20 or more calendar workweeks in the current or preceding calendar year. The 75-mile radius means that an employee at a small satellite office may not be covered even if the employer has hundreds of total employees nationwide, as long as fewer than 50 of them work within 75 miles of that specific worksite.

The practical consequence: approximately 40% of U.S. workers are employed by organizations that do not meet the FMLA’s coverage threshold. Employees of small businesses, part-time workers who have not met the 1,250-hour threshold, and employees at small satellite offices may all be outside federal FMLA coverage. This is why the first question in any FMLA analysis must be eligibility — both employer coverage and employee eligibility requirements must be met.

State law fills some gaps: California’s California Family Rights Act (CFRA) covers employers with 5 or more employees. New York’s Paid Family Leave applies to most private-sector employees. New Jersey’s Family Leave Act covers employers with 30 or more employees. Oregon, Massachusetts, Colorado, Connecticut, Delaware, Washington, and other states have paid family and medical leave programs that cover smaller employers with varying thresholds. If federal FMLA does not apply, state law may still provide leave rights — and these state programs are often more generous in coverage, duration, or wage replacement than the federal statute.

Misconception 2: “FMLA Leave Must Be Paid”

The belief: taking FMLA leave means the employee continues to receive their regular salary during the leave period, just as they would during paid vacation.

The reality: the FMLA provides unpaid, job-protected leave. The Act guarantees the right to take leave without losing your job — it does not require the employer to pay you during that leave. Most employees taking FMLA leave receive no pay from their employer unless they use accrued paid time off concurrently.

Substitution of paid leave: the FMLA allows (and in some cases requires) concurrent use of employer-provided paid leave during the FMLA period. If the employer’s policy requires employees to use accrued sick or vacation time before taking unpaid leave, the employer can mandate that FMLA leave run concurrently with accrued PTO. Some employers require this; others do not. The concurrent use of PTO does not reduce the FMLA entitlement — the employee still gets their full 12 weeks of job-protected leave; the question is only whether those weeks are paid.

State wage replacement programs: many states have established paid family and medical leave programs that run concurrently with FMLA and provide partial wage replacement during the leave period. California’s Paid Family Leave program provides approximately 60–70% of wages for up to eight weeks. New York’s Paid Family Leave provides 67% of the statewide average weekly wage. Washington, Massachusetts, Colorado, Oregon, Connecticut, New Jersey, Rhode Island, and Delaware have similar programs. These state programs are funded by small employee payroll contributions and are administered separately from the FMLA. If you are in one of these states and meet the program’s eligibility requirements, you may receive partial pay during your FMLA leave — but this is a state program benefit, not an FMLA requirement.

Misconception 3: “Intermittent Leave Can’t Be Used for Chronic Conditions”

The belief: FMLA leave is for extended medical events — surgeries, serious illnesses requiring hospitalization — and cannot be used as a basis for taking individual days off for chronic conditions that flare periodically.

The reality: intermittent FMLA leave is explicitly provided in the statute and regulations precisely to protect employees with chronic conditions that cause periodic incapacity. An employee with migraines who has four to six episodes per month that each render them unable to work for a day is exactly the type of employee the intermittent leave provision was designed to protect. The same applies to Crohn’s disease, irritable bowel syndrome, depression, anxiety disorders, epilepsy, diabetes, asthma requiring treatment, and any other chronic condition that meets the regulatory definition.

The regulatory definition of a chronic serious health condition (29 C.F.R. § 825.115) covers conditions that require periodic visits to a health care provider (at least twice per year), continue over an extended period of time (including recurring episodes), and may cause episodic rather than continuing incapacity. The episodic nature is key: a single-day absence due to a migraine flare qualifies as FMLA-protected intermittent leave if the employee has a valid FMLA certification for migraines.

What employers can and cannot do with intermittent leave: employers can require employees to follow the employer’s reasonable call-in notification procedures (calling in at least 30 minutes before a shift is common and permissible). Employers can request recertification of the medical condition when they have reason to believe the certification is no longer accurate. Employers can consult with the health care provider to clarify or authenticate the certification. What employers cannot do is count FMLA-designated absences against attendance records, use intermittent leave patterns as evidence of poor performance, or discipline employees for taking leave that falls within the scope of a valid certification.

Misconception 4: “I Need to File with the EEOC Before Suing”

The belief: like other employment discrimination claims, an FMLA claim requires filing a charge with the Equal Employment Opportunity Commission and obtaining a right-to-sue letter before an employee can file in federal court.

The reality: the FMLA has no administrative exhaustion requirement. Employees can file directly in federal district court without first filing with the EEOC, the Department of Labor, or any other administrative agency. This is a significant procedural distinction from the major employment discrimination statutes — Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, and the Americans with Disabilities Act all require administrative exhaustion through the EEOC before federal court access. The FMLA does not.

The practical significance: employees who believe their FMLA rights have been violated can file suit in federal court at any time within the two-year (or three-year willful) statute of limitations, without needing to file an administrative charge, wait for an investigation, receive a determination letter, or obtain a right-to-sue authorization. This simplifies and accelerates access to federal court remedies compared to other employment claims.

Where administrative filing is useful: even without being required, filing with the DOL Wage and Hour Division can be a useful strategy in some cases — particularly for employees who want the government to investigate and potentially negotiate a resolution on their behalf, or for employees who do not have significant damages that would attract contingency counsel. The DOL investigates and sometimes resolves FMLA complaints. If the DOL investigation does not produce a satisfactory resolution, the employee retains the right to file in federal court (subject to the statute of limitations running during the investigation period).

Interaction with other claims: if you have FMLA claims alongside Title VII, ADEA, or ADA claims — for example, an employee who was terminated for taking FMLA leave and also believes the termination was discriminatory based on sex or disability — the other statutes do require EEOC exhaustion. In that scenario, filing an EEOC charge while simultaneously preserving your FMLA rights under the longer FMLA limitations period requires careful planning and is a reason to consult an employment attorney promptly.

Misconception 5: “Employers Always Owe Liquidated Damages for FMLA Violations”

The belief: because the FMLA provides for liquidated damages equal to the compensatory award, any proven FMLA violation automatically results in the employer paying double — back pay plus an equal amount in liquidated damages.

The reality: while liquidated damages are the default for FMLA violations, the employer can avoid doubling by successfully proving the good faith defense. Under 29 U.S.C. § 2617(a)(1)(A)(iii), liquidated damages do not apply if the employer establishes that the violation was made in good faith and that the employer had reasonable grounds for believing the conduct was not a violation. Both elements — good faith and reasonable grounds — must be established by the employer.

When the defense succeeds: courts have accepted the good faith defense in cases involving genuine legal ambiguity, administrative errors by small employers without HR expertise, and situations where the employer relied on erroneous legal advice from counsel on a genuinely unsettled question. A small business owner who was unaware of the 12-month employee eligibility threshold and denied leave to a relatively new employee may have a stronger claim to the defense than a corporation with a dedicated HR department and employment counsel.

When the defense fails: the defense rarely succeeds in cases where the employer had HR professionals, employment attorneys, or established compliance programs that should have ensured FMLA compliance. Courts generally reject “we didn’t know” defenses from employers who had access to legal expertise and chose not to use it or ignored it. The defense also fails in retaliation cases, where the employer’s retaliatory intent is directly inconsistent with the good faith the defense requires — an employer who knowingly terminated an employee to punish them for taking FMLA leave cannot in good faith claim they believed the termination did not violate the FMLA.

The practical consequence of the defense: even in cases where the defense partially succeeds, courts retain discretion to award some liquidated damages to serve the statute’s deterrence purposes. The calculator addresses this uncertainty by estimating 50% of back pay as liquidated damages when bad faith is not clearly established — reflecting that many cases produce some liquidated damages even when the employer makes a colorable good faith argument.

Return to the calculator, see how FMLA damages work, or read the FAQ.