Business Law

Family and Medical Leave Act for Employees

Updated by Sachi Barreiro, Attorney, University of San Francisco School of Law
The majority of employees in the U.S. are eligible for FMLA leave.

The Family and Medical Leave Act (FMLA) is a federal law that allows employees to take up to 12 weeks of unpaid leave in a 12-month period due to the employee’s own serious health condition, to care for a family member with a serious health condition, to bond with a new child, or for certain reasons relating to a family member's active military duty. Eligible employees may take up to 26 weeks of unpaid leave in a single 12-month period to care for a covered service member recovering from a serious illness or injury.

Because the FMLA applies only to employers with 50 or more employees, you won’t be eligible for FMLA leave if you work for a really small employer. However, if your employer has at least 50 employees, your employer is covered by the law, even if it’s considered a small business by other standards.

The Basics of the FMLA

For an employee to be eligible for FMLA leave, all of the following requirements must be met:

  • You must work for a business that has at least 50 employees.
  • Your employer must have at least 50 employees within a 75-mile radius of where you work.
  • You must have worked for your employer at least 12 months and at least 1,250 hours in the last year.

The FMLA allows you to take time off for the following purposes:

  • to care for a newborn child, a newly adopted child, or a newly placed foster child
  • to care for a son, daughter, parent, or spouse with a serious health condition (a child who is 18 and older isn't covered, unless he or she is incapable of self-care because of a mental or physical disability)
  • to recover from a serious health condition that prevents you from performing your job
  • to attend to certain matters that arise from a family member’s call to active military duty (called a “qualifying exigency”), and
  • to care for a covered member of the armed services who is recovering from a serious illness or injury sustained while on activity duty (called “military caregiver leave”).

For most types of FMLA, an employee may take up to 12 weeks of unpaid leave each year. For military caregiver leave, eligible employees are entitled to up to 26 weeks of unpaid FMLA leave in a 12-month period.

What's a "Serious Health Condition?"

The FMLA defines a “serious health condition” as an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a health care provider. This includes conditions that require an overnight stay in the hospital; prenatal care and incapacity due to pregnancy; chronic conditions, such as diabetes or asthma; permanent or long-term conditions, such as cancer; conditions requiring multiple treatments; and conditions that cause incapacity for more than three days with ongoing treatment by a medical provider. (To learn more, see our article on what qualifies as a serious health condition under the FMLA.)

Military Personnel

Beginning in January, 2009, the FMLA was expanded to create leave entitlements for military members and their families, thanks to the National Defense Authorization Act of 2008 (NDAA). The amendments provide for two new types of military related family leave: qualifying exigency leave and military caregiver leave.

Qualifying Exigency Leave. Employees can take up to 12 weeks of leave for various needs that arise from the fact that the employee's spouse, son, daughter, or parent is on active military duty or has been called to active duty. Qualifying exigencies include, among other things:

  • when the service member gets notice of deployment within seven or fewer days of the actual deployment
  • to provide urgent child care or to handle certain day care or school activities for the service member’s child, and
  • to visit with the service member when he or she is on rest and recuperation.

For a full list of qualifying exigencies, see our article on FMLA leave when a family member is called to active duty.

Military Caregiver Leave. A worker who is the spouse, son, daughter, parent, or next of kin of a covered service member who is recovering from a serious illness or injury sustained in the line of duty, may take up to 26 weeks of leave in a single 12-month period to care for the service member. A covered service member includes current members of the Armed Forces, including the National Guard or Reserves, and veterans. Up to 12 of the weeks may be used for any FMLA qualifying reason.

Unpaid Leave

Although FMLA leave is generally unpaid, your employer must maintain any group health benefits provided to you during the leave period. A handful of states provide paid family leave benefits, which are typically administered and paid by the state.

Job Security

It's illegal for your employer to reprimand you or count the FMLA leave against you in any way, for example as marks on your attendance record. Also, your employer must provide you with reinstatement at the end of your leave, either to the same job or to an equivalent position, unless either of the following is true:

  • After the allotted 12 weeks, you can't return to your job or perform the same work because of a physical or mental condition. (However, you might be entitled to a reasonable accommodation if your condition qualifies as a disability under the Americans With Disabilities Act.)
  • If FMLA leave will cause substantial and grievous economic injury to the business, key employees who are among the highest paid 10% in the business don't have to be reinstated.

What to Do When You're Taking Leave

If you're eligible for FMLA leave and want to use it, you should:

  • Give your employer 30 days’ written notice before the start of the leave, if the need for leave is foreseeable. When the need for leave is not foreseeable, give notice to your employer as soon as possible.
  • Provide medical proof upon request. Your employer is entitled to request a medical certification if you are taking leave for your own serious health condition or that of a family member. Just one doctor's note may not be sufficient. Your employer can request second and third medical opinions, but it must pay for those.
  • Make sure your employer is continuing to pay its normal share of your group health insurance premium during your leave. You, of course, must continue to pay your share of the premiums. Talk to your employer about how you will make your payments while on leave.
  • If your employer provides paid sick leave or vacation leave, decide whether you want to use your accrued leave during your FMLA leave. Under the law, your employer can require you to take any unused sick or vacation leave that you've accumulated.
  • Respond to your employer's occasional check-ins to verify your status and intent to return to work. If you fail to provide a medical certification when your employer requests it, your employer might be able to terminate the leave or your employment.

Getting Help

By law, employers must post a notice approved by the Secretary of Labor at the workplace and provide a written general notice containing the same information to all employees. Your employer must also provide certain notices to employees when they request FMLA leave, including information about eligibility, their rights and responsibilities, and the repercussions for employees who fail to return to work after the leave. For example, if you don't return to work when your FMLA leave ends, your employer might be able to fire you immediately—or, in some cases, even require you to repay the costs that your employer paid to continue your healthcare during your leave.

If you have additional questions, contact the U.S. Department of Labor's Wage and Hour Division, which is in charge of enforcing the law.

What's Next?

If you still feel that your rights have been violated, write down everything that has happened, including the date, time, place, and names of those involved, and consider contacting an employment lawyer with FMLA experience.

The law prohibits employers from discriminating against or discharging employees for exercising their rights under the FMLA. If your employer has violated the FMLA, you can file an administrative complaint or civil lawsuit in court. Remedies available include injunctive relief, such as reinstatement to your old job, or monetary relief, such as back pay.

State Family and Medical Leave Laws

In addition to the FMLA, many states have their own family medical leave laws. Covered employers must comply with the federal or state provision that provides the greater benefit to their employees. Many states have laws that are more generous to employees in terms of who is eligible and how much time they may take off.

Questions for Your Attorney

  • I was deployed to Iraq, and when I returned, I found out that my boss gave someone else my job. I was transferred to a different store, which is much farther away from the store I was working at before deployment. Can she do that?
  • Can I take FMLA leave to care for my stepchildren? What about my grandchildren?
  • I think my boss is wrongfully denying my FMLA leave, but I'm afraid that if I complain, he'll fire me. What should I do?
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