Part 16 · Chapter 1
FMLA and Employee Benefits: Continuation, Payment, and Restoration
Scope and status
This chapter covers the benefits half of the FMLA — the obligation to maintain group health coverage during leave, the premium-payment mechanics and the employer's limited right to recover its share, the treatment of leave under retirement and other non-health plans, and the restoration obligation on return. It does not cover FMLA eligibility disputes, certification, designation, intermittent-leave scheduling, or interference and retaliation litigation, which are employment-law matters outside this Desk Reference.
Citations are to primary authority (29 U.S.C. §§2601–2654; 29 C.F.R. Part 825; Treas. Reg. §1.125-3; DOL Wage and Hour opinion letters). Related questions are treated elsewhere: cafeteria-plan election mechanics in the §125 chapter of Part 13 (COBRA, HIPAA, and Welfare Benefits) (unit B3); COBRA qualifying-event analysis in its COBRA chapter (unit B3); and hours-of-service and break-in-service crediting in Part 5 (Qualified Plan Testing, Eligibility, and Vesting).
Sections
Part A — Threshold: Whose Obligation Is It
A1.Coverage and eligibility, stated only as the benefits trigger
Part 16, ch. 1, § A1
FMLA applies to private employers employing 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year, and to public agencies and schools without regard to size. An employee is eligible only if employed by the employer for at least 12 months (not necessarily consecutive), having worked at least 1,250 hours of service during the 12 months immediately preceding the leave (airline flight crews instead need at least 60% of the applicable monthly guarantee and at least 504 hours worked or paid; 29 U.S.C. §2611(2)(D), 29 C.F.R. §825.801), at a worksite where the employer employs 50 or more employees within 75 miles. The entitlement is 12 workweeks in a 12-month period for the enumerated reasons, extended to 26 workweeks in a single 12-month period for military caregiver leave. Statute: 29 U.S.C. §§2611, 2612. Final reg: 29 C.F.R. §§825.104–825.110.
A2.Joint employment — which entity owes the benefit obligation
Part 16, ch. 1, § A2
Where two or more entities jointly employ an employee, the primary employer is responsible for giving FMLA notices, providing FMLA leave, maintaining group health benefits, and restoring the employee; the secondary employer is responsible for accepting the returning employee if it continues to use a staffing agency's workers, and for refraining from interference and retaliation. Final reg: 29 C.F.R. §§825.106, 825.106(c)–(e). Currency item — proposed only. The Department published a combined FLSA, FMLA, and MSPA notice of proposed rulemaking on April 23, 2026 (RIN 1235-AA48, Docket WHD-2026-0067) that would determine joint employer status under the FMLA using the Department's FLSA analysis, on the reasoning that the FMLA incorporates the FLSA's employment definitions; it sets out a four-factor vertical joint-employment test emphasizing actual exercise of control over a reserved right to control, and would clarify that franchisor arrangements and requirements to comply with general legal, health, and safety obligations do not alone establish joint-employer status. The proposal expressly does not propose changes to §825.106(c), the primary-employer rule that assigns FMLA leave and maintenance of health benefits. Comments closed June 22, 2026. Proposed reg — no reliance: Joint Employer Status Under the Fair Labor Standards Act, Family and Medical Leave Act, and Migrant and Seasonal Agricultural Worker Protection Act, 91 Fed. Reg. 21878 (Apr. 23, 2026), RIN 1235-AA48. The current §825.106 standard governs until a final rule.
Part B — Group Health Plan Maintenance
- B1The maintenance obligationSubscribers
- B2Who pays, and what happens when the employee does notSubscribers
- B3Recovering the employer's premium shareSubscribers
- B4Cafeteria plans, health FSAs, and the COBRA boundarySubscribers
Part C — Retirement and Other Non-Health Benefits
- C1Restoration to equivalent benefitsSubscribers
- C2The pension rule — the distinction that gets missedSubscribers
- C3Deferrals, match, and loan repayments during unpaid leaveSubscribers
- C4Everything else follows employer policy for comparable leaveSubscribers