Family and Medical Leave Act

Employers and Employees Covered by FMLA
What Reasons Are Allowed for Taking Leave?
When You Can Take Leave under the FMLA
Limitations under the FMLA 
Other Benefits and FMLA
FMLA Notice Requirements
Returning to Work: Job Guarantees
Additional Leave for Employees with Family in the Military
Resources

The federal Family and Medical Leave Act (FMLA) offers up to 12 weeks off of unpaid leave during a 12-month period to many—but not all—employees who need to take time off for specific family or medical care reasons. Although the leave is unpaid, by law your employer must allow you to return to your previous job once your leave is over, or to an "equivalent position with equivalent benefits, pay, status, and other terms and conditions of employment." The Act was created to provide job security for workers who need to take time off to care for themselves or for their families.

FMLA is a federal law and applies in all 50 states. Certain states may choose to give employees additional rights, over and above those guaranteed by FMLA, but no matter what state you are in, you can be sure of at least having your FMLA rights. If your state offers better benefits, take advantage of them, but at least you are assured of receiving the time off available to you under FMLA. You can and should check to see if you can combine federal and state benefits, or “piggyback” one on the other—odds are you can’t, at least in terms of getting more time off (most state laws do not allow you to add time available under state law to FMLA time off) but it’s well worth taking the time to check.

Though the act is complex, the DOL puts out a very handy guide to the Family and Medical Leave Act.

Employers and Employees Covered by FMLA

While FMLA is a federal law, it is not otherwise universal. Not all workers are covered. To be able to use FMLA leave:

 (1)  Your employer must be covered by the Act. All government agencies are covered by FMLA regardless of their size, number of workers, or what level of government (e.g. federal, state, county, or town/municipal). Schools – both private and public elementary and secondary schools – are also covered under the FMLA.  Private employers must offer family leave if the employer has at least 50 employees who work within a 75-mile radius. If your employer is not covered—for example, you work for a small or “mom-and-pop” business—you cannot take FMLA leave, unless your employer is covered under your state law.

 (2) Even if the employer is covered, the employee must be eligible, too. He or she must have worked for this employer for at least a year and logged in at least 1,250 hours of work in those past 12 months. This means that new employees or part-time employees who work (on average) less than 25 hours per week are not eligible for FMLA leave. (And again, your state law may have different eligibility criteria.)

What Reasons Are Allowed for Taking Leave?

“Family and medical” leave does not cover all family members or all medical issues. Events that qualify for FMLA include the birth or adoption of a child; foster care placement into the employee’s family; the need to care for one’s own serious health condition; or the need to care for a child, spouse or parent with a serious health condition. An employer may require medical certification from a health care provider to verify the health condition of an employee or of their family member.

Serious health condition: Not every health or medical condition qualifies as a “serious health condition” for FMLA leave. FMLA defines “serious health condition” as an illness, injury, impairment or condition requiring either inpatient care in a hospice, hospital, or residential center, or which requires continuing and ongoing treatment by health care professionals. Basically, conditions such as cancer, heart attacks, strokes, inpatient care, severe injuries, pregnancy, prenatal care, certain surgeries, and Alzheimer's disease qualify.

On the other hand, a cold—even a bad one that makes you feel like you could die—upset stomach, earache, headache, or other minor illness do not qualify as serious health conditions for FMLA purposes. You also can’t use FMLA leave to care for your aunt or grandfather, even if they raised you and you consider them to be like a parent. Regardless of their need or your emotional connection to them, the only family members for whom you can use FMLA leave are spouses, children, and parents.

When You Can Take Leave Under FMLA

Leave for medical treatment or to recover from an injury or surgery is taken when the medical need exists. Leave for other purposes follows a one-year rule: employees must take FMLA within one year of a child’s birth, placement, or adoption. The child must be either a minor (under the age of 18) or an adult dependent who is unable to care for him or herself due to mental or physical challenges.

An important point is that the leave does not have to be taken all at one time, but can be used in installments or increments by the employee over the 12 months, so long as the total amount of time allowed (12 weeks) is not exceeded. This is called “intermittent leave” and facilitates ongoing treatment, such as dialysis for diabetes, chemotherapy for cancer, or physical therapy to recover from an injury.

Limitations under the FMLA

Some states recognize civil unions or domestic partnerships between same-sex individuals and different-sex couples. Furthermore, two states—California and Massachusetts —have recognized same-sex marriage. However, FMLA does not apply to same-sex partners or couples in domestic partnerships, because FMLA uses its own definition of “family” (being a federal law, it is not bound by state definitions): FMLA defines “family” strictly as a spouse, child, or parent. 

In addition, spouses who work for the same employer and wish to take FMLA to care for a newborn, newly adopted child or foster child, or for a sick parent, may not take more than 12 weeks of combined FMLA leave, although they may take their leave at the same time.

Other Benefits and FMLA

Seniority does not accrue to an employee who is on FMLA leave.

The employer does not need to keep accruing paid time off (“PTO”), such as vacation or sick leave while an employee is out on FMLA—you can’t earn more time off while you are out on leave. Furthermore, an employer can require an employee to use sick or vacation time before granting family and medical leave. That is, you may have to use your paid time first, before taking unpaid leave.

While employers are not required to pay workers who opt to take FMLA leave (they may choose to provide paid leave if they want), they must continue to provide health insurance coverage during the FMLA-sanctioned leave. However, if an employee chooses not to return (essentially quitting his or her job) at the end of the leave period, then the employer may seek to recover the cost of health insurance premiums paid during the time off from the non-returning worker. It is only a voluntary decision to not return that can trigger a repayment obligation. If an employee is unable to return to the same (or equivalent) position because of ongoing injury or illness, they are not required to pay back health care premiums paid during their leave.

FMLA Notice Requirements

Employer obligations: Federal law requires that employers post notices of FMLA rights in a conspicuous (or obvious) place in the workplace. Also, information about FMLA must be featured in employee manuals and/or training materials. 

An employer should grant approval or denial of FMLA leave in writing, and must inform employees of their obligations to provide medical documentation of their leaves beforehand.  

Compliance assistance materials for employers are available at the Department of Labor’s (DOL’s) website.

Employee obligations: Not all obligations are on the employer; the employee has obligations, too.

Employees must tell their employer they are seeking FMLA leave as soon as possible after a qualifying event—or even before a qualifying event, if advance notice is available (such as with a birth or adoption, or when non-emergency surgery is scheduled in advance). Although 30-days notice is requested, workers will not be punished for illnesses with a sudden or unexpected onset. In addition, employees might be obligated to provide medical documentation of their health conditions from their health care provider, and to update employers on their situations, or the situations of their family members, if they are requested to do so. However, employees are not required to provide their medical records to their employer.

Returning to Work: Job Guarantees

Once FMLA leave has expired, the employee is entitled to return to either the same position within the company or to a comparable one with the same skill level requirements, responsibilities, and pay. The only exceptions are for positions that a company eliminates because of locations closing or staff layoffs.

Also, the salaried and highest-paid employees (key employees) at a company (i.e., the top 10 percent of earners) may be denied their former jobs if doing so would cause serious economic harm to the employer. An employer, however, must provide sufficient notice to the employee if they decide that this is the case—and be prepared to substantiate or prove that harm if the employee alleges FMLA retaliation.

Additional Leave for Employees with Family in the Military

An employee can take up to 26 weeks of leave in a 12-month period to care for a “member of the Armed Forces,” who may be their “spouse, son, daughter or parent, or next of kin.” For purposes of this law, the family member must be undergoing “medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness."

Furthermore, up to 12 weeks of FMLA leave is available because of a “qualifying exigency” for reasons related to the employee’s spouse, child, or parent being called to active duty (or being on active duty).

Resources

If you are denied FMLA leave or reinstatement to your position, or feel you have been discriminated against or harassed for requesting FMLA benefits, you should contact the Wage and Hour Division of the U.S. Department of Labor's Employment Standards Administration at 1-866-4-USWAGE, or hire a private employment attorney who will be able to inform you of your rights.

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