FMLA (Family and Medical Leave Act)

The one-sentence answer

FMLA is a federal law giving eligible employees up to 12 weeks of unpaid, job-protected leave in a 12-month period — for their own serious health condition, to care for a close family member, or to bond with a new child — while their health benefits continue.

It reaches employers of a certain size, and an employee qualifies only after meeting service requirements. Whether it applies to the person you employ depends on how your FMS arrangement is set up — which is a question worth asking directly.

The rules

What the leave provides

Up to 12 workweeks in a 12-month period (26 weeks for military caregiver leave)
Unpaid, but job-protected — the job is waiting when they return
Health benefits continue during the leave

Which employers it covers

Employers with 50 or more employees in 20 or more workweeks in the current or previous calendar year
And the employee must work at a location where the employer has at least 50 employees within 75 miles

Which employees qualify

At least 12 months of employment with that employer
At least 1,250 hours worked in the 12 months before the leave starts

What counts as a qualifying reason

The employee's own serious health condition
Caring for a spouse, child or parent with a serious health condition
Birth, adoption or foster placement of a child, with bonding leave within one year
Certain military exigency and military caregiver situations

Whether it applies to you depends on your FMS

This is the part no general employment guide can answer for you. In Self-Determination, who counts as the employer — and therefore whose headcount is measured against those thresholds — depends on the arrangement you are in.

Under Sole Employer, you are the employer. A family employing one or two caregivers is far below the 50-employee threshold.
Under Co-Employer, your FMS is a co-employer alongside you, and the analysis is different — and genuinely complicated. FMLA's 75-mile worksite test adds a second question beyond raw headcount, since caregivers in this program are spread across the state rather than gathered at one site.
Under Bill Payer, you are not employing anyone, so the question does not arise for you.

So the useful thing to do is ask your FMS: "Under our arrangement, do FMLA and CFRA apply to the person I employ?" They should be able to answer it, and different providers may be in different positions. This is the same pattern as EVV — the obligation follows the employer of record, and who that is depends on your model.

If the answer is yes, plan for the coverage gap before you need to. Twelve weeks is a long time to replace support you rely on daily, and protected leave means you cannot permanently hire someone in their place.

Ask about CFRA too, not just FMLA. California's equivalent reaches employers at 5 employees rather than 50, has no 75-mile worksite test, and covers a far wider range of relatives — including grandparents, siblings, grandchildren and even "someone with a blood or family-like relationship." It is much the more likely of the two to apply, so asking only about FMLA means asking about the narrower law.

Also worth knowing: job-protected does not mean you pay. An employee on this kind of leave may be able to draw California Paid Family Leave or State Disability Insurance, which are funded through payroll contributions rather than by you. See CFRA.

For the detail-oriented

Source: US Department of Labor, https://www.dol.gov/agencies/whd/fmla. All figures above are the federal rules as published by DOL.

This entry deliberately does not tell you whether FMLA applies to your situation, and that is not evasion — it is because the answer is a joint-employer and worksite analysis that turns on facts specific to your FMS. Stating a blanket yes or no here would be wrong for a large number of readers either way.

This entry is information, not legal advice. A live leave request — particularly one involving termination or a dispute — is a situation for an employment attorney.