The FMLA Has Three Gates Minnesota's Pregnancy and Parenting Leave Does Not — 12 Months, 1,250 Hours, and 50 Employees Within 75 Miles

Three gates, and you have to clear all three

The Family and Medical Leave Act is the statute most Minnesota employees have heard of and the one most of them do not qualify for. It puts three independent conditions in front of the leave, and the conditions are in two different paragraphs of the definitions section rather than in the leave provision itself.

29 U.S.C. § 2611(2)(A):

The term “eligible employee” means an employee who has been employed—

(i) for at least 12 months by the employer with respect to whom leave is requested under section 2612 of this title; and

(ii) for at least 1,250 hours of service with such employer during the previous 12-month period.

Paragraph (2)(B) then takes people back out:

The term “eligible employee” does not include—

(i) any Federal officer or employee covered under subchapter V of chapter 63 of title 5; or

(ii) any employee of an employer who is employed at a worksite at which such employer employs less than 50 employees if the total number of employees employed by that employer within 75 miles of that worksite is less than 50.

And § 2611(4)(A)(i) defines the employer:

The term “employer”— (i) means any person engaged in commerce or in any industry or activity affecting commerce who employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year;

Three numbers, three different tests. Twelve months of employment, which the statute does not require to be consecutive on its face. Twelve hundred fifty hours of service in the previous twelve months — a figure § 2611(2)(C) measures by borrowing the wage-and-hour rules, providing that for purposes of the hours-of-service requirement “the legal standards established under section 207 of this title shall apply.” And fifty employees, counted two ways at once: fifty for the employer across twenty calendar workweeks, and fifty within seventy-five miles of the particular worksite.

One group is measured differently. Under § 2611(2)(D)(i), a flight attendant or flight crewmember “will be considered to meet the requirement if—”

(I) the employee has worked or been paid for not less than 60 percent of the applicable total monthly guarantee, or the equivalent, for the previous 12-month period, for or by the employer with respect to whom leave is requested under section 2612 of this title; and

(II) the employee has worked or been paid for not less than 504 hours (not counting personal commute time or time spent on vacation leave or medical or sick leave) during the previous 12-month period, for or by that employer.

Subparagraph (A)(iii) adds that “employer” “includes any ‘public agency’, as defined in section 203(x) of this title,” and paragraph (4)(B) says a public agency “shall be considered to be a person engaged in commerce.” Public employers are inside the Act without regard to the fifty-employee count in subparagraph (A)(i); the worksite rule in § 2611(2)(B)(ii) still applies to the employee.

Twelve workweeks, and what they are for

29 U.S.C. § 2612(a)(1):

Subject to section 2613 of this title and subsection (d)(3), an eligible employee shall be entitled to a total of 12 workweeks of leave during any 12-month period for one or more of the following:

(A) Because of the birth of a son or daughter of the employee and in order to care for such son or daughter.

(B) Because of the placement of a son or daughter with the employee for adoption or foster care.

(C) In order to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition.

(D) Because of a serious health condition that makes the employee unable to perform the functions of the position of such employee.

(E) Because of any qualifying exigency (as the Secretary shall, by regulation, determine) arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on covered active duty (or has been notified of an impending call or order to covered active duty) in the Armed Forces.

Subparagraph (F), the Emergency Family and Medical Leave Expansion Act reason, is written to end “on December 31, 2020” and that date has passed.

Paragraph (a)(2) closes the birth and placement window: the entitlement under (A) and (B) “shall expire at the end of the 12-month period beginning on the date of such birth or placement.” Paragraph (a)(3) is a separate and much longer entitlement — 26 workweeks in a single 12-month period for an eligible employee who is “the spouse, son, daughter, parent, or next of kin of a covered servicemember” to care for that servicemember — and paragraph (a)(4) caps the combination at 26 workweeks during that single 12-month period.

The list of relatives is short, and it is worth reading as a closed list rather than an illustration. A search of 29 U.S.C. §§ 2611 and 2612 as Cornell publishes them returns no occurrence of “sibling,” none of “grandparent,” none of “grandchild,” none of “in-law,” and none of “domestic partner.” “Next of kin” appears twice in § 2611 and once in § 2612, and in each place it is attached to servicemember caregiver leave under § 2612(a)(3). Minnesota’s earned sick and safe time statute defines “family member” across four clauses that reach in-laws, a sibling’s child, a person whose close association is the equivalent of a family relationship, and one individual the employee designates each year — see earned sick and safe time.

“Serious health condition” is defined at § 2611(11) in two lines: an illness, injury, impairment, or physical or mental condition involving “(A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider.” The work of that definition is done by regulation rather than by the statute. “Son or daughter” at § 2611(12) reaches a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is “under 18 years of age” or “18 years of age or older and incapable of self-care because of a mental or physical disability.” “Parent” at § 2611(7) is “the biological parent of an employee or an individual who stood in loco parentis to an employee when the employee was a son or daughter” — a definition that does not name a parent-in-law.

The leave is unpaid, and paid time can be forced into it

Section 2612(c): “Except as provided in subsection (d), leave granted under subsection (a) (other than certain periods of leave under subsection (a)(1)(F)) may consist of unpaid leave.”

Subsection (d) is the substitution rule, and it runs in both directions:

An eligible employee may elect, or an employer may require the employee, to substitute any of the accrued paid vacation leave, personal leave, or family leave of the employee for leave provided under subparagraph (A), (B), (C), or (E) of subsection (a)(1) for any part of the 12-week period of such leave under such subsection.

§ 2612(d)(2)(A). Subparagraph (B) does the same for the employee’s own or a family member’s serious health condition, adding accrued paid medical or sick leave to the list, and then states the boundary: “nothing in this subchapter shall require an employer to provide paid sick leave or paid medical leave in any situation in which such employer would not normally provide any such paid leave.”

Read the verb. The employer may require the substitution. Federal leave and accrued vacation are not two separate banks an employee draws down in sequence at the employee’s choosing; the employer may make them the same twelve weeks. Minnesota’s paid leave program under chapter 268B is money rather than weeks and operates on its own rules — see Minnesota paid leave.

Intermittent leave, and the transfer the employer may demand

Section 2612(b)(1) divides the reasons. Leave for birth or placement “shall not be taken by an employee intermittently or on a reduced leave schedule unless the employee and the employer of the employee agree otherwise.” Leave for the employee’s own or a family member’s serious health condition, or servicemember caregiver leave, “may be taken intermittently or on a reduced leave schedule when medically necessary.” Qualifying-exigency leave may be taken intermittently or on a reduced leave schedule, subject to the notice rule in subsection (e)(3) and the certification rule in § 2613(f). Taking leave that way “shall not result in a reduction in the total amount of leave to which the employee is entitled under subsection (a) beyond the amount of leave actually taken.”

Paragraph (b)(2) gives the employer something in exchange. Where intermittent or reduced-schedule leave for a serious health condition or servicemember care “is foreseeable based on planned medical treatment,” the employer “may require such employee to transfer temporarily to an available alternative position offered by the employer for which the employee is qualified” that “(A) has equivalent pay and benefits; and (B) better accommodates recurring periods of leave than the regular employment position of the employee.”

Notice and certification

Section 2612(e)(1) sets thirty days’ notice for foreseeable birth or placement leave, “except that if the date of the birth or placement requires leave to begin in less than 30 days, the employee shall provide such notice as is practicable.” Paragraph (e)(2) applies the same thirty days to leave foreseeable “based on planned medical treatment,” and adds a duty to “make a reasonable effort to schedule the treatment so as not to disrupt unduly the operations of the employer, subject to the approval of the health care provider.” Paragraph (e)(3) asks only for notice “as is reasonable and practicable” where the need arises from a family member’s covered active duty.

Certification is § 2613. An employer “may require that a request for leave” for a serious health condition or servicemember care “be supported by a certification issued by the health care provider.” Subsection (b) then tells the employer what a sufficient certification contains — the date the condition commenced, its probable duration, “the appropriate medical facts within the knowledge of the health care provider regarding the condition,” and, for family-care leave, “a statement that the eligible employee is needed to care for the son, daughter, spouse, or parent and an estimate of the amount of time” needed. What the subsection asks for is bounded, and the word “diagnosis” appears nowhere in § 2613. What clause (3) does ask for — “the appropriate medical facts within the knowledge of the health care provider regarding the condition” — is broad language, and the Secretary reads it broadly: 29 C.F.R. § 825.306(a)(3) provides that such medical facts “may include information on symptoms, diagnosis, hospitalization, doctor visits, whether medication has been prescribed, any referrals for evaluation or treatment (physical therapy, for example), or any other regimen of continuing treatment.”

Coming back

Section 2614(a)(1) entitles an eligible employee who takes leave “for the intended purpose of the leave” to one of two things “on return from such leave”: “(A) to be restored by the employer to the position of employment held by the employee when the leave commenced; or (B) to be restored to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment.” Paragraph (a)(2) provides that taking leave “shall not result in the loss of any employment benefit accrued prior to the date on which the leave commenced.”

Paragraph (a)(3) is the ceiling: nothing in the section entitles a restored employee to “the accrual of any seniority or employment benefits during any period of leave” or to “any right, benefit, or position of employment other than any right, benefit, or position to which the employee would have been entitled had the employee not taken the leave.” Paragraph (a)(4) allows a uniformly applied fitness-for-duty certification requirement for leave taken for the employee’s own serious health condition, “except that nothing in this paragraph shall supersede a valid State or local law or a collective bargaining agreement that governs the return to work of such employees.”

Subsection (b) is the exception people are least likely to have heard of. An employer may deny restoration to “a salaried eligible employee who is among the highest paid 10 percent of the employees employed by the employer within 75 miles of the facility at which the employee is employed” if three things are all true: “such denial is necessary to prevent substantial and grievous economic injury to the operations of the employer,” the employer notified the employee of that intent “at the time the employer determines that such injury would occur,” and, where leave has already begun, “the employee elects not to return to employment after receiving such notice.”

Subsection (c)(1) requires the employer to maintain group health plan coverage during the leave “at the level and under the conditions coverage would have been provided if the employee had continued in employment continuously for the duration of such leave.” Paragraph (c)(2) lets the employer recover the premium it paid if the employee fails to return, unless the failure is for “the continuation, recurrence, or onset of a serious health condition” that would itself qualify or for “other circumstances beyond the control of the employee.”

What is unlawful, and the clock

Section 2615(a) has two clauses and the first is broader than the word “retaliation”:

(1) Exercise of rights

It shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter.

(2) Discrimination

It shall be unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this subchapter.

Subsection (b) separately reaches discharge or discrimination because an individual filed a charge, instituted a proceeding, gave information, or testified.

The remedy is § 2617(a)(1): lost wages, salary, employment benefits, or other compensation — or, where none was lost, “any actual monetary losses sustained by the employee as a direct result of the violation, such as the cost of providing care, up to a sum equal to 12 weeks (or 26 weeks, in a case involving leave under section 2612(a)(3) of this title) of wages or salary”; interest “at the prevailing rate”; and “an additional amount as liquidated damages equal to the sum of” those two, which the court may reduce only if the employer proves the violation “was in good faith and that the employer had reasonable grounds for believing that the act or omission was not a violation.” Paragraph (a)(3) is mandatory: the court “shall, in addition to any judgment awarded to the plaintiff, allow a reasonable attorney’s fee, reasonable expert witness fees, and other costs of the action to be paid by the defendant.” An action may be maintained “in any Federal or State court of competent jurisdiction.” § 2617(a)(2).

The period is two years “after the date of the last event constituting the alleged violation for which the action is brought,” and three years for a willful violation. § 2617(c)(1)–(2). Where that sits against Minnesota’s periods is in every Minnesota employment deadline in one table and in the deadline calculator.

Section 2619 requires the employer to post a notice “in conspicuous places on the premises of the employer where notices to employees and applicants for employment are customarily posted,” and prices a willful failure at “a civil money penalty not to exceed $100 for each separate offense.”

How the federal weeks run with the Minnesota ones

They are not additive, and two statutes say so from opposite directions.

Minn. Stat. § 181.943(a) provides that the length of leave under § 181.941 “may be reduced by any period of . . . (2) leave taken for the same purpose by the employee under United States Code, title 29, chapter 28” — that is the FMLA. Minn. Stat. § 268B.27, subd. 1: “An employer may require leave taken under this chapter to run concurrently with leave taken for the same purpose under section 181.941 or the Family and Medical Leave Act, United States Code, title 29, sections 2601 to 2654, as amended.”

One absence is carved out of the reduction entirely. Minn. Stat. § 181.943(c): “Notwithstanding paragraphs (a) and (b), the length of leave provided under section 181.941 must not be reduced by any period of paid or unpaid leave taken for prenatal care medical appointments.”

The federal statute does not object. 29 U.S.C. § 2651(b): “Nothing in this Act or any amendment made by this Act shall be construed to supersede any provision of any State or local law that provides greater family or medical leave rights than the rights established under this Act or any amendment made by this Act.” Subsection (a) preserves federal and state antidiscrimination law. Section 2652 does the same work for private arrangements: a collective bargaining agreement or benefit plan that gives more is not diminished by the Act, and “[t]he rights established for employees under this Act . . . shall not be diminished by any collective bargaining agreement or any employment benefit program or plan.”

What that produces in practice is a floor-and-offset structure rather than a stack. The FMLA is a floor Minnesota law may exceed; where both apply to the same absence for the same purpose, Minnesota’s own statutes let the employer count the weeks once. Which rules Minnesota writes above the federal floor, and the two places it writes below, are set out in Minnesota versus the federal floor.

Currency

The federal sections quoted here were retrieved from the Legal Information Institute on September 11, 2026, and their statutory credits read: § 2611, Pub. L. 103–3, title I, § 101, Feb. 5, 1993, as last amended by Pub. L. 116–92, div. F, title LXXVI, § 7604(b), Dec. 20, 2019; § 2612, Pub. L. 103–3, title I, § 102, as last amended by Pub. L. 116–127, div. C, § 3102(a), Mar. 18, 2020; § 2615, Pub. L. 103–3, title I, § 105, Feb. 5, 1993, unamended; § 2619, Pub. L. 103–3, title I, § 109, Feb. 5, 1993, unamended; §§ 2651 and 2652, Pub. L. 103–3, title IV, §§ 401 and 402, Feb. 5, 1993, unamended.

The Minnesota sections are published by the revisor in the 2025 Minnesota Statutes edition. The History lines read: § 181.940, “1987 c 359 s 1; 1990 c 577 s 1; 1991 c 268 s 1; 2014 c 239 art 3 s 1; 2023 c 53 art 11 s 28,29”; § 181.941, “1987 c 359 s 2; 1990 c 577 s 2; 2014 c 239 art 3 s 2; 2023 c 53 art 11 s 30; 2024 c 110 art 2 s 10”; § 181.943, “1987 c 359 s 4; 1988 c 659 s 1; 1990 c 577 s 6; 2014 c 239 art 3 s 5; 2024 c 110 art 2 s 11”; § 268B.27, “2023 c 59 art 1 s 38; 2024 c 127 art 73 s 48.”

Checked against the revisor’s table of Minnesota Statutes affected by the 2026 Regular Session, queried one exact section at a time and read on the Session column, none of §§ 181.940, 181.941, 181.943, or 268B.27 was amended, new, or repealed in the 2025 or 2026 sessions.

This page describes the machinery. Whether a particular condition is a serious health condition, whether a particular employee cleared 1,250 hours, how the 75-mile worksite count comes out for a particular workplace, and whether a specific absence was for a purpose that permits an offset are questions about facts and records, and applying these statutes to them is not what this page does.