FMLA parental leave: what it covers and what it does not

Newborn · Family · Reviewed 20 June 2026 · All articles

What FMLA is

The Family and Medical Leave Act (FMLA) is a federal law enacted in 1993 that gives eligible employees the right to take up to 12 weeks of unpaid, job-protected leave per year for certain family and medical reasons. For new parents, the most relevant provisions are leave for the birth of a child, the placement of a child through adoption or foster care, and the care of a spouse, child, or parent with a serious health condition.

FMLA does not pay you. It protects your job. When you return from FMLA leave, your employer must reinstate you to the same position you held before leave, or to an equivalent position with the same pay, benefits, and working conditions. That guarantee is the core of what FMLA offers: time away from work without the risk of losing your job or your health insurance.

The law is enforced by the US Department of Labor's Wage and Hour Division. Employees who believe their FMLA rights have been violated can file a complaint with the Department of Labor or pursue a private civil lawsuit.

Who is covered by FMLA

Not every employee and not every employer is covered by FMLA. You need to meet all three of the following tests:

Employer size: Your employer must have 50 or more employees within 75 miles of your worksite. Employers with fewer than 50 employees are entirely exempt from federal FMLA, even if they are large national companies at the corporate level. What matters is the number of employees working at or near your specific location.

Length of employment: You must have worked for your employer for at least 12 months. The 12 months do not need to be consecutive; breaks in service of up to seven years still count toward the 12-month requirement in most circumstances.

Hours worked: You must have worked at least 1,250 hours during the 12 months immediately before the leave begins. That works out to roughly 24 hours per week on average. Part-time employees who work fewer than that threshold do not qualify for FMLA, even if they have been with the employer for many years.

If you are not sure whether your employer or your own situation qualifies, check with your HR department or contact the Department of Labor directly. Many employees assume they qualify or do not qualify without checking the specific numbers.

What FMLA covers for new parents

For parents welcoming a new child, FMLA covers three situations:

Both the birthing parent and the non-birthing parent are entitled to FMLA bonding leave. FMLA does not distinguish between mothers, fathers, same-sex partners, or adoptive parents. Any eligible employee who becomes a parent can use FMLA to bond with a new child.

The 12 weeks of FMLA leave must be used within 12 months of the birth or placement. Most parents take their leave immediately, but some choose to delay part of it, for example to cover a later period when the other parent's leave ends.

Key limitations of FMLA

FMLA's protections are real and meaningful, but the law has significant gaps that new parents need to understand before planning their leave.

It is unpaid. This is the biggest limitation for most families. Twelve weeks without pay can be financially devastating. Your employer may have a policy requiring or allowing you to substitute accrued paid time off (PTO, sick leave, or vacation) during FMLA leave. Some employers require it; others leave the choice to the employee. Review your employee handbook or ask HR before your leave begins.

Not all employees qualify. As described above, the 50-employee, 12-month, and 1,250-hour requirements exclude a large share of the workforce, including many part-time workers, newer employees, and workers at small businesses.

Small employers are entirely exempt. If your employer has fewer than 50 employees, federal FMLA simply does not apply to you. Your only options are whatever your employer voluntarily offers and any applicable state law.

Health insurance continues during leave, but only under the same terms as when you were working. If you pay a portion of your premium through payroll deductions, you will need to continue paying that portion during leave. If you fail to return from leave and your employer paid premiums on your behalf during leave, the employer may be able to recover those costs from you.

Key employees (salaried employees in the top 10% of compensation at the worksite) may be denied reinstatement if restoring them to their position would cause substantial and grievous economic injury to the employer. This exception is narrow and rarely used, but it exists.

Notice requirements

When your need for FMLA leave is foreseeable, such as a scheduled birth or a planned adoption, you must give your employer at least 30 days' advance notice. If the need for leave is not foreseeable, you must notify your employer as soon as practicable, generally the same day or the next business day.

You do not need to use the words "FMLA" when requesting leave. If you give your employer enough information to understand that you may need leave for a qualifying reason, the employer is legally required to inform you of your FMLA rights and to designate the leave as FMLA leave if it qualifies.

Your employer may request medical certification from a health care provider to support your FMLA request. For bonding leave after a birth, the documentation is typically straightforward. For leave related to a serious health condition, more detailed medical certification may be required.

Continuous, intermittent, and reduced-schedule leave

FMLA leave does not have to be taken all at once. There are three ways to structure it:

Continuous leave is the most common pattern for new parents: a single unbroken block of time away from work. Most parents take their full 12 weeks (or however much they need) as a continuous block starting at or shortly after the birth.

Intermittent leave means taking leave in separate, non-consecutive blocks. For a serious health condition, intermittent leave can be taken in increments as small as one hour. For bonding with a healthy newborn or newly placed child, intermittent leave requires the employer's agreement - the employer can insist that bonding leave be taken as a continuous block.

Reduced-schedule leave means temporarily reducing your normal weekly or daily work schedule. For example, instead of working five days a week, you work three days a week. As with intermittent leave, a reduced schedule for bonding purposes requires employer approval.

Reinstatement rights

When you return from FMLA leave, your employer must restore you to the same job you held before leave, or to an equivalent job. An equivalent job means a position that is virtually identical in terms of pay, benefits, shift, schedule, geographic location, and working conditions. Demotion, pay cuts, or schedule changes that make the job materially worse are not permitted.

Your employer cannot count FMLA leave against you in any way that affects employment decisions. Using FMLA leave cannot be treated as a negative factor in performance reviews, promotion decisions, attendance records, or disciplinary actions.

State paid family leave programs

Federal FMLA is unpaid, but a growing number of states have enacted their own paid family leave (PFL) programs that provide partial wage replacement during qualifying leave. These state programs can be layered on top of federal FMLA, and in many cases the leaves run concurrently so that you are using both FMLA job protection and state paid benefits at the same time.

California: California's Paid Family Leave program, administered by the Employment Development Department (EDD), provides up to eight weeks of paid leave at 60% to 70% of your regular wages (higher percentage for lower-wage workers). California also has the California Family Rights Act (CFRA), which mirrors FMLA but applies to employers with five or more employees, covering many workers that federal FMLA excludes.

New York: New York Paid Family Leave provides up to 12 weeks of paid leave at 67% of the employee's average weekly wage, capped at 67% of the statewide average weekly wage. New York's program is funded through small employee payroll deductions.

New Jersey: New Jersey Family Leave Insurance provides up to 12 weeks of paid leave at 85% of the employee's average weekly wage, up to a weekly cap. New Jersey also has the New Jersey Family Leave Act, which like California's CFRA covers smaller employers than federal FMLA.

Other states with paid family leave programs include Washington, Massachusetts, Connecticut, Colorado, Oregon, Rhode Island, Delaware, and Maryland, with more states considering legislation each year. Each program has its own benefit rate, duration, employer size threshold, and funding mechanism. Check your state's department of labor or workforce development website for the most current details.

Tips for parents planning FMLA leave

Start conversations with your HR department early, ideally in the second trimester of pregnancy. Ask specifically about what paid leave your employer offers, whether you are required to use accrued PTO during FMLA, and how your health insurance premiums will be handled during leave.

Find out whether your state has a paid family leave program and how to apply. State PFL applications are usually separate from your FMLA paperwork with your employer. In most states you apply directly to the state agency (EDD in California, the Workers' Compensation Board in New York, and so on) and submit documentation of the birth or placement.

If both you and your co-parent are employed, each of you should plan your leaves independently. Consider staggering your leaves so that one parent returns to work while the other is still on leave, stretching the total time your baby has a parent at home.

Keep records. Document the dates you gave notice, any written confirmation from HR, and any communications about your leave. If problems arise during or after your leave, having a paper trail is invaluable.

Frequently asked questions

Does FMLA pay me during leave?

No, FMLA provides unpaid, job-protected leave. Your employer may require you to use accrued paid time off during FMLA. Check whether your state has a separate paid family leave program that can provide wage replacement during some or all of your leave.

Can both parents take FMLA at the same time?

If both parents work for the same employer, that employer may limit combined FMLA leave to 12 weeks total for the birth or adoption of a child. If they work for different employers, each parent can take the full 12 weeks independently and simultaneously.

What if my employer has fewer than 50 employees?

Federal FMLA does not apply to employers with fewer than 50 employees. However, some states have family leave laws with lower employer thresholds. Check your state department of labor website to find out whether a state law covers smaller employers in your area.

Can I take FMLA intermittently after the birth of my baby?

Intermittent FMLA for bonding with a healthy newborn must be agreed upon by both the employee and the employer. Unlike leave for a serious health condition, the employer can require that bonding leave be taken continuously or in larger blocks rather than in small increments.