Rights and Responsibilities Under the FMLA

America has a large number of single-parent families and two-paycheck families. Congress passed the Family and Medical Leave Act of 1993 (FMLA) to recognize these changes to the traditional American family model. The federal law establishes standards and rights to unpaid leave for employees with health problems or sick family members.

The FMLA does not preempt local and state laws that provide greater protection. As a result, municipal and state law may allow more expansive rights than the FMLA.

FMLA Basics

The FMLA provides eligible employees of covered employers with 12 weeks of leave in a 12-month period for the following reasons:

• Serious personal injury or illness
• Serious family medical problems
• Pregnancy, adoption, or placement of a child from foster care

Employees can take intermittent leave, which is time off in short breaks. For example, you can take intermittent leave if you need a series of medical treatments that will span several months and take several hours or one day at a time.

The employee's leave under the FMLA is unpaid, but the employee continues to receive health benefits as if they were still actively employed. The employer must continue the employee's health insurance. It must continue paying its share of the health insurance premiums. The employee must also continue to pay their share of the insurance coverage.

FMLA-qualifying leave is job-protected leave. At the end of the work absence, the employer must reinstate the employee to the same job or an equivalent position. An equivalent position is a job having the same or similar pay, hours, work, work conditions, job responsibilities, job security, etc.

The FMLA also says employers cannot discriminate against or discipline employees, including firing them, for taking advantage of FMLA leave. If your employer disciplines you for taking leave, you can sue for lost wages and other damages.

Covered Employers and Employees

The FMLA does not apply to all employers or all employees. In general, the FMLA only covers:

• Employers with 50 or more employees
• Public agencies, regardless of the number of employees
• Schools, elementary and secondary (whether public or private)

Employees must meet eligibility requirements. Eligible employees must have worked for a covered employer for at least 12 months with at least 1,250 hours of service in the 12 months before the FMLA leave begins.

Valid Reasons for Leave Under the FMLA

If the employer and the employee are both covered, the FMLA recognizes several valid reasons for a covered employee's right to take unpaid leave, including:

• A serious health condition or serious injury that leaves the employee unable to perform their job
• The need to care for a member of the employee's immediate family who suffers from a serious health condition
• Birth of a child and care of a newborn
• Adoption of a child or placement of a child from foster care

'Serious Health Condition'

The FMLA defines a "serious health condition" as an illness or injury involving inpatient care at a hospital or similar facility or continuing treatment by a health-care provider.

A serious health condition makes an employee unable to do their job. The condition must last more than a few days to qualify as serious and need treatment by a health care provider. Examples of serious health conditions include heart attacks, strokes, and spinal injuries. But, depending on the severity and circumstances, morning sickness and other issues relating to pregnancy can qualify as serious health conditions under the FMLA.

The FMLA does not force the employee taking FMLA leave for medical reasons to get medical certification for the leave request. But if there is a question about the seriousness of the employee's condition, the FMLA allows an employer to request that the employee get a doctor's certificate. The doctor must determine that the employee cannot perform their job or that the requested leave is medically necessary. If the employer disputes a doctor's findings, it may force you to get a second and even a third opinion at the employer's expense.

In intermittent leave, employers can demand periodic recertification supporting the need for leave.

Birth or Adoption of a Child

Another common reason for an employee to take FMLA leave is the birth or adoption of a child and the need to care for the new child. If an employee takes FMLA leave for this reason, they are usually entitled to start leave when the child is born or adopted. But, if there is a legitimate medical reason relating to the birth or the employee must be there to complete the adoption process, they may begin their leave earlier.

Military Family Member Leave

The FMLA provides military caregiver leave. Congress added the military family leave provisions to the FMLA in 2008. The FMLA offers two types of leave entitlement to military members:

1. Military caregiver leave. Military families may use the FMLA to provide leave for covered service members with serious health conditions or to care for family members with serious health conditions.
2. Qualifying exigency arising out of active duty or call to active duty status. This includes preparing for a deployment, the return of a service member, and attending official military ceremonies.

A covered servicemember is someone on active duty with the Armed Forces.

Notice Requirements

Generally, the FMLA requires an employee to give their employer 30 days' notice of intention to take FMLA leave and the reason for the leave.

You don't have to give written notice. There is no "magic language" you must use to notify your employer. You don't have to mention the FMLA by name. Instead, the notice must give the employer enough information to know the employee's request for time off and the reason for the absence. This allows your employer to determine if the request qualifies for FMLA-protected leave and time to find a replacement employee.

You don't always have to give advance notice. But you must give your employer as much notice as is reasonable. When the need for FMLA leave arises suddenly, such as with an unexpected medical emergency, you can take FMLA leave without notice.

Once they've received notice from an employee, covered employers must tell the worker if leave will be FMLA-protected and the amount of leave counted against the employee's leave entitlement. Your employer must make this eligibility determination within five business days.

Coordination of FMLA Leave With Paid Leave

Although FMLA leave is unpaid, you and your employer can coordinate your FMLA leave with paid leave, such as sick leave or vacation days. You may choose to substitute accrued leave for FMLA leave days.

The FMLA allows employers to demand that employees exhaust paid leave when taking FMLA.

Returning to Work

The right to job reinstatement is an important FMLA protection. You must get reinstated to the same or an equivalent position upon return to work. Key employees don't have this FMLA right. If reinstatement would cause the employer serious economic hardship, a key employee may, under certain circumstances, not return to work.

An exception is if the employer can show that the employee would have gotten fired even if they had not taken FMLA leave. For example, if an employer closes a factory because business is bad, the employer would not have to reinstate an employee returning from FMLA leave.

Filing a Complaint

The Wage and Hour Division (WHD) of the U.S. Department of Labor investigates FMLA complaints.

The FMLA does not supersede state law, local ordinance, or a collective bargaining agreement that offers greater family or medical leave rights.

Have a Family or Medical Leave Question? Get a Legal Evaluation

The FMLA allows employees to deal with family and medical problems without detriment to their careers. If you believe someone has violated your rights under the FMLA or have questions about your rights, consult an employment law attorney. Learn more about your legal options with an evaluation from an employment lawyer near you.