The FMLA for small employers: who is covered and how leave works
A short cheat sheet on federal job-protected leave, with the coverage tests, the notice clock, the penalty in force in October 2026 and how Illinois and Cook County leave laws sit beside it.
Prepared by Prem Tax and Accounting Corp. Last checked against official sources on October 29, 2026.
The 1993 Family and Medical Leave Act (FMLA) gives eligible employees up to 12 workweeks a year of unpaid, job-protected leave for family and medical reasons. The Wage and Hour Division of the U.S. Department of Labor enforces it; employees can sue too. Our Count-Clock-Return Circuit makes it routine. The official text starts at 29 U.S.C. 2601.
- A private employer is covered with 50 or more employees on payroll for 20 or more workweeks of this or last year.
- An employee is eligible after 12 months, with 1,250 hours worked in the past year and 50 employees within 75 miles.
- Leave is 12 workweeks (26 for a military caregiver), unpaid, with group health coverage kept.
- Employer notices are due in 5 business days; the employee's certificate in 15 days.
Who it covers
| Group | Covered? | Note |
|---|---|---|
| Private employer | Yes, at 50 or more on payroll | In 20 or more workweeks of this or last year; part-timers count |
| Public agency or school | Yes, any size | Includes private elementary and secondary schools |
| Employee | Eligible with 12 months and 1,250 hours | Also needs 50 employees within 75 miles |
The numbers
| Item | Amount or rule | Year or status |
|---|---|---|
| Leave | 12 workweeks; 26 for a military caregiver | 2026 |
| Poster penalty | Up to $216 per willful violation | 2025 amount; 2026 adjustment cancelled |
Source: 29 CFR Part 825
Our checklist
The Count-Clock-Return Circuit has five stops for each leave request.
- Count: weekly employer-wide payroll (flag 50 in 20 weeks), then staff within 75 miles of each worksite.
- Post: the Wage and Hour poster is displayed.
- Clock: designation, eligibility and rights notices within 5 business days.
- Cover: group health coverage continues on the same terms.
- Return: same or equivalent job; records kept 3 years or more.
Mistakes people make
- Skipping the poster since nobody is eligible.
- Sending notices after the 5-business-day deadline.
- Giving attendance points for FMLA absences.
- Cutting hours or moving staff between sites to dodge eligibility.
Talk to an attorney about a firing near a leave request, a headcount close to 50 or a Wage and Hour audit.
Common questions
Does the FMLA apply to a small business?
A private employer is covered only at 50 or more on payroll for 20 workweeks, and an employee needs 50 within 75 miles. Illinois leave laws use other size tests; Chicago and Cook County have paid leave ordinances. See [Cook County paid leave](/small-business-laws/cook-county/paid-leave-ordinance/).
Is FMLA leave paid?
No. Employees may choose, and employers may require, using accrued paid leave; disability-plan or workers' compensation pay is excluded.
How do I count employees?
Count everyone on payroll, including part-timers and people on leave expected back, but not laid-off staff. For the 75 miles, a remote worker's worksite is the office reported to, not home. A joint-employer rule proposed in April 2026 was not final on October 28, 2026.
Official sources
- U.S. Department of Labor, Wage and Hour Division: Family and Medical Leave Act
- U.S. Department of Labor: Fact Sheet 28, the FMLA
- eCFR: 29 CFR Part 825, FMLA regulations
- U.S. Department of Labor: Civil money penalties
- IRS Notice 2026-28: Section 45S paid family and medical leave credit
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