FMLA has two separate gates. The employer must be covered; then the employee must be eligible. Failing either one ends the question.
Employer coverage
A private-sector employer is covered if it employed 50 or more employees in 20 or more workweeks in the current or previous calendar year.
Both halves matter: the headcount and the 20 workweeks. Do not confuse coverage with the employee eligibility criteria.
Employee eligibility — all three tests
- At least 12 months of employment with the employer
- At least 1,250 hours of service in the 12 months immediately preceding the leave
- A worksite with 50 or more employees within 75 miles
Worked example: 14 months of service, 1,180 hours in the preceding 12 months, worksite of 300. She passes tests 1 and 3 but falls 70 hours short of 1,250, so she is not eligible. The worksite threshold is 50 within 75 miles — not 75 employees, not 100.
Entitlement
- Standard FMLA entitlement is 12 workweeks.
- Military caregiver leave is up to 26 workweeks in a single 12-month period, with a combined total of 26 workweeks for all FMLA reasons in that period. The most common error is stacking 26 and 12 to reach 38. The 26 is a cap, not an addition.
Notice and protections
- Under 29 CFR 825.300, the employer must give the Eligibility Notice within five business days of the leave request or of learning that leave may be FMLA-qualifying, absent extenuating circumstances. The prototype form is WH-381.
- Under 29 CFR 825.209, the employer must maintain group health coverage on the same conditions as if the employee had been continuously employed. No prepayment condition.
- Under 29 CFR 825.214, she is entitled to the same position or an equivalent position with equivalent benefits, pay and other terms.
- The key-employee exception is narrow: a salaried employee among the highest paid 10% within 75 miles of the worksite, and restoration must cause substantial and grievous economic injury.
Check coverage, then all three eligibility tests, before anything else.