Family and Medical Leave Act (FMLA)

Quick Facts

• Leave entitlement: Up to 12 workweeks of unpaid, job-protected leave in a 12-month period for birth or adoption, to care for a spouse, child, or parent with a serious health condition, for an employee’s own serious health condition, or for qualifying exigencies related to military service. Up to 26 weeks to care for a covered servicemember with a serious injury or illness.
• Job protection: Employers must restore employees to the same or an equivalent position with equivalent pay, benefits, and terms upon return.
• Benefits continuation: Group health insurance must continue under the same conditions as if the employee were actively working.
• Covered employers: Private employers with 50 or more employees in 20 workweeks of the current or previous year, public agencies, and public/private elementary and secondary schools.
• Official guidance: DOL FMLA resource page and the Employee’s Guide to FMLA.

Program Overview

The Family and Medical Leave Act of 1993 provides a safety net for workers balancing employment with major life events. While the leave is unpaid, it ensures job protection and continued health coverage. Many states supplement FMLA with paid family and medical leave programs or more expansive eligibility rules. FMLA interacts with employer policies, short-term disability insurance, and state laws, so employees should review their specific situation before planning leave.

Eligibility Requirements

To qualify, an employee must:

1. Work for a covered employer.
2. Have worked for the employer for at least 12 months (need not be consecutive; up to seven-year breaks may be excluded for military service or written agreements).
3. Have logged at least 1,250 hours during the 12 months immediately preceding the leave.
4. Work at a location where the employer has at least 50 employees within 75 miles.

Eligible family members include spouses, children under 18 (or over 18 if incapable of self-care due to disability), and parents. “Spouse” includes same-sex and common-law spouses as recognized by state law. Certain leave types cover next of kin of servicemembers.

Qualifying Reasons for Leave

• Birth, adoption, or foster placement of a child and bonding within one year of the event.
• Employee’s serious health condition that makes them unable to perform essential job functions.
• Care for a spouse, child, or parent with a serious health condition.
• Qualifying exigencies related to a family member’s covered active duty, such as attending military ceremonies, arranging childcare, or attending counseling.
• Military caregiver leave for up to 26 weeks in a single 12-month period to care for a covered servicemember with a serious injury or illness.

A “serious health condition” includes inpatient care or continuing treatment by a healthcare provider. Conditions requiring multiple treatments or chronic conditions (e.g., asthma, diabetes) may qualify.

Application Process

1. Provide notice: Employees should give 30 days’ notice when leave is foreseeable (e.g., scheduled surgery). If leave is unexpected, notify the employer as soon as practicable.
2. Employer designation: Employers must respond within five business days with eligibility and rights information (Notice of Eligibility and Rights & Responsibilities).
3. Certification: Employers may require medical certification. Employees typically have 15 calendar days to submit completed certification forms from healthcare providers.
4. Designation notice: After reviewing certification, the employer provides a Designation Notice confirming whether leave is approved and how it will be counted.

Employers can require use of accrued paid leave (vacation, sick days) concurrently with FMLA. Many organizations integrate short-term disability benefits for wage replacement.

During Leave

• Benefits: Employees must continue paying their share of health insurance premiums. If payments are missed, coverage may lapse after proper notice, but employers must restore coverage upon return.
• Intermittent leave: FMLA can be taken intermittently or on a reduced schedule when medically necessary or for military exigencies. Employers may temporarily transfer employees to an alternative position with equivalent pay/benefits to accommodate intermittent leave.
• Recordkeeping: Employers track FMLA usage in workweeks or equivalent hours. Keep personal records of leave dates and correspondence.

Returning to Work

Upon return, employees must be reinstated to the same or an equivalent job with equivalent pay, benefits, and terms. Equivalent positions must be virtually identical in pay, shift, location, and duties. Key exceptions include:

• Key employees: Certain highly compensated employees may be denied reinstatement if necessary to prevent substantial economic injury to the employer, after proper notice.
• Failure to provide fitness-for-duty certification: Employers may require a certification confirming ability to resume essential functions when leave was for the employee’s own condition.

Coordination with State Laws and Paid Leave

Several states (e.g., California, New York, Washington) offer paid family and medical leave insurance. These programs often run concurrently with FMLA, providing wage replacement while federal law protects the job. Some states extend eligibility to smaller employers or broaden covered family members (e.g., siblings, grandparents). Employees should review state labor department resources to understand how benefits interact and ensure required paperwork is completed for both programs.

Best Practices for Employees

• Communicate early: Discuss leave needs with HR or supervisors as soon as possible to plan coverage.
• Understand employer policies: Review employee handbooks for notice requirements, benefit continuation rules, and available paid leave.
• Keep documentation: Maintain copies of medical certifications, notices, and correspondence. Accurate records help resolve disputes.
• Plan finances: Since FMLA is unpaid, explore short-term disability benefits, paid time off, or state programs to replace income.
• Return-to-work discussions: Coordinate with HR about accommodation needs or phased returns, especially after extended medical leave.

Employer Responsibilities

• Display the FMLA poster and include policy details in employee handbooks.
• Provide timely notices and respond to leave requests.
• Maintain confidentiality of medical information.
• Track leave accurately and refrain from interfering with or retaliating against employees exercising FMLA rights.

Frequently Asked Questions

Can both parents take FMLA for the same birth? Yes, each eligible parent may take up to 12 weeks. If both work for the same employer, they may be limited to a combined 12 weeks for bonding leave, but each still has their own entitlement for other qualifying reasons.

Is leave paid? FMLA itself is unpaid, but employees may use accrued paid leave or state-provided benefits concurrently.

What if I don’t qualify? You may have rights under state leave laws, the Americans with Disabilities Act (reasonable accommodations), or employer policies. Discuss alternatives with HR.

Can an employer deny FMLA? Only if the employee is ineligible or the reason doesn’t meet FMLA criteria. Denials must be documented, and employees may file complaints with the Wage and Hour Division or pursue legal action.

How do I file a complaint? Contact the DOL Wage and Hour Division at 1-866-4US-WAGE or file online if you believe your rights were violated.

References

• Family and Medical Leave Act – DOL
• Employee’s Guide to FMLA
• State Paid Family and Medical Leave Programs

Insider Tips to Win Family and Medical Leave Act (FMLA)

• File notice promptly. Submit your FMLA request at least 30 days in advance when foreseeable to protect job rights.
• Coordinate with HR documentation. Provide medical certifications within 15 days to prevent denial or delay.
• Track intermittent leave. Maintain precise hour-by-hour records to avoid exhausting your 12-week entitlement prematurely.