How to Apply for FMLA: The Six Steps, the Deadlines, and the Form That Decides It

How do you apply for FMLA leave?

You apply to your employer, not to the Department of Labor, and there is no national form to file. Give notice at least 30 days before leave you can foresee, such as a scheduled surgery or an expected birth, or as soon as practicable when you cannot, which generally means the same or next business day. You do not have to say the word FMLA or name your diagnosis; you have to give enough information for the employer to know the leave may qualify. Within five business days the employer must send you an eligibility and rights notice (form WH-381) and, usually, a certification form: WH-380-E for your own condition, WH-380-F for a family member's. You have 15 calendar days to return the certification, and your provider, not you, completes the medical part. The employer then has five business days to issue a designation notice (WH-382) telling you whether the leave counts as FMLA and how much of your entitlement it uses.

Before you apply: check that you are eligible

Three tests decide eligibility, and all three must be true on the day the leave starts. You must have worked for the employer for at least 12 months, which need not be consecutive, although employment more than seven years ago is usually disregarded. You must have worked at least 1,250 hours in the 12 months immediately before the leave begins, counting hours actually worked and not paid time off. And your employer must have at least 50 employees within 75 miles of your worksite, which is the test that catches people at small satellite offices of large companies.

This is worth doing before you start the conversation, because an ineligible request and a non-qualifying condition get the same refusal but have completely different alternatives. If you fail the 1,250-hour test you may still have a state leave law, an employer policy, or the ADA. If you fail the 50-employee test the FMLA simply does not apply to you at that worksite.

Step 1: Give notice, and get the timing right

For foreseeable leave you must give at least 30 days' notice. Foreseeable covers an expected birth, a planned adoption or foster placement, planned medical treatment for yourself or a family member, and the planned medical treatment of a covered servicemember. If 30 days is not possible, for example because the treatment is scheduled sooner than that, notice must be as soon as practicable, which in practice means the same day you learn of it or the next business day.

For unforeseeable leave, notice must be as soon as practicable given the facts. For a sudden hospitalization that may be a call from a family member on your behalf the next morning. The regulation expects an employee to follow the employer's usual call-in procedures for reporting an absence, and an employer may deny or delay FMLA protection where those procedures are not followed and no unusual circumstances justify it. If your handbook says call the absence line before 9am, call the absence line before 9am.

A common and expensive mistake is to treat the 30 days as a limit rather than a minimum. Notice earlier than 30 days is always allowed and always better, because everything that follows runs from it.

Step 2: Say enough, but no more

You do not have to mention the FMLA. You have to provide sufficient information for the employer to know that the leave may be FMLA-qualifying, and the regulation gives examples of what that means: that you are unable to perform job functions, that a family member is unable to perform daily activities, that hospitalization or continuing treatment is needed, or the circumstances of a birth, adoption or military exigency. Saying I am sick is not enough. Saying I am going into hospital on the fourteenth for surgery and expect to be out about three weeks is.

You do not have to give a diagnosis. The medical detail belongs on the certification, which goes to HR or a leave administrator and not to your direct manager. If your manager asks, the complete and sufficient answer is that it is a serious health condition, the paperwork is with HR, and here is what it means for the schedule.

Put it in writing even when the employer accepts a verbal request, and keep a copy. A dated email creates the record of when the clocks started, which is the single most useful document anyone has when a request later goes wrong.

One exception is worth knowing: when you are asking for more leave for a condition for which the employer has already designated FMLA leave, you do have to reference the qualifying reason or the need for FMLA leave specifically. The leniency about saying the word applies to the first request, not to every subsequent absence.

Step 3: What the employer must send you, and when

Within five business days of learning that leave may be FMLA-qualifying, the employer must give you a notice of eligibility and rights and responsibilities. This is form WH-381 in the Department of Labor's set, and it tells you whether you are eligible, and if not, at least one reason why. It is also where the employer states what it requires of you, including whether it wants a medical certification, whether it will require you to substitute paid leave, and whether a fitness-for-duty certificate will be needed before you return.

The certification request has to come at the same time as that notice, or within five business days of the employer deciding it wants one. The forms are optional for the employer, which may use its own, but it may not ask for more than the forms do.

This is the step where most of the delay in a slow request actually sits. If more than a week has gone by since your notice and nothing has arrived, ask in writing. An employer that fails to notify cannot usually penalize you for a delay that it caused.

Step 4: The certification, and the question that decides it

You have 15 calendar days to return the certification, and the regulation expects you to make diligent, good faith efforts within that window. The part you complete is short: your name, the reason, the dates. Everything that matters is in the provider's section, and a provider filling in one of these between appointments will write the minimum unless asked otherwise.

For continuous leave the critical fields are the date the condition began, its probable duration, and the statement that you are unable to perform one or more essential job functions. Take your job description to the appointment. A provider who writes cannot work is weaker than one who writes cannot lift more than five kilograms or sit for more than twenty minutes, which is what the form is actually asking.

For intermittent or reduced-schedule leave the critical fields are the expected frequency and duration of episodes, and this is the one that decides the next twelve months. A certification that says the condition is chronic but leaves frequency blank is incomplete, which gives the employer grounds to send it back and leaves every future absence arguable. A certification that says flares are expected roughly twice a month lasting one to two days has set the terms: absences inside that pattern are covered, and the employer cannot demand a new note each time.

If the employer finds the certification incomplete or insufficient it must say so in writing, state specifically what is missing, and give you seven calendar days to cure it. It may not simply reject the form. If it genuinely doubts a complete certification it may require a second opinion at its own expense, from a provider it does not regularly employ, and a third, binding opinion if the first two disagree.

Who pays for the form is not regulated. Many providers charge for completing it, and that cost falls on the employee unless the employer offers to cover it.

Step 5: The designation notice, and what it must tell you

Once the employer has enough information it has five business days to issue the designation notice, WH-382. This is the document that matters most and the one employees most often never receive. It states whether the leave is designated as FMLA-protected, and if the employer knows the amount, how much time will be counted against your 12-week entitlement. If the amount is not known in advance, as with intermittent leave, you may ask for a running total and the employer must give you one, no more often than every 30 days and only when leave was taken in that period.

The designation notice is also where the employer tells you if it is requiring a fitness-for-duty certificate before you return, and that requirement is only enforceable if it was stated in the designation notice.

Designation is the employer's decision and its obligation, not an option for either side. An employer cannot decline to count qualifying leave against the entitlement, and an employee cannot decline to have it counted in order to save the weeks for later. Both of those were settled by the Department of Labor's 2019 opinion letter, and the common arrangement where an employee uses PTO first and asks for the FMLA clock to start afterwards is not permitted. The two run together.

Step 6: While you are on leave, and coming back

Your group health insurance continues on the same terms as if you were working, and you remain responsible for your share of the premium. If you are unpaid during the leave, arrange with HR how that share will be paid, because an employer may drop coverage after a premium is more than 30 days late, and only after giving you 15 days' written notice first.

Either you or the employer may require that accrued paid leave run concurrently with the unpaid FMLA leave, subject to the employer's normal rules for that paid leave. In practice most employers require it, which means the PTO balance is consumed during the same weeks.

The employer may ask for a reasonable report on your status and intent to return. It may not ask for a full new certification each time, and contact must stay within that purpose.

On return you are entitled to the same job, or one that is virtually identical in pay, benefits and other terms and conditions. If a fitness-for-duty certificate was required in the designation notice, bring it. The protection is broad but not absolute: you are entitled to no greater right than if you had kept working, so a layoff that would have reached you anyway still reaches you.

If the request is denied

Ask for the reason in writing, then sort it into one of three boxes, because the answer is different in each. If the denial is about eligibility, check the three tests yourself, in particular the 1,250 hours, which employers sometimes calculate from payroll hours rather than hours worked. If the denial is about the condition, check it against the six branches of the serious health condition test rather than against how serious the illness felt. If the denial is about paperwork, check whether the employer gave you the written statement of what was missing and the seven days to cure it, because without those it has not completed the step.

A complaint can be filed with the Wage and Hour Division of the Department of Labor, which does not charge for it, or a private lawsuit can be brought. The limitation period is two years from the last event that violated the Act, extended to three years where the violation was wilful.