Are You a Legal Professional?

FMLA Leave Law: In-Depth

Sometimes events in life force employees to miss work for periods that last longer than the amount of sick leave or vacation time that the employee has accrued.  The Family and Medical Leave Act (FMLA) recognizes this, and allows eligible employees to take unpaid leave for up to 12 weeks in a 12-month period.  The FMLA also protects the employee's job during the leave period, and at the end of the leave an employer must return the employee to their original job or its equivalent.

The leave must occur because of family and medical reasons listed in the statute.  Members of military families can also take FMLA leave for any "qualifying exigency" that comes up when a covered servicemember is on active duty in support of a contingency operation, or has received notification of such impending active duty.  In addition, eligible employees may also take up to 26 weeks of FMLA leave in a 12-month period to care for a covered member of the military who has a serious injury or illness.

The federal government enforces FMLA's provisions.  For private and state and local government employees, the U.S. Department of Labor's Employment Standards Administration, Wage and Hour Division, oversees enforcement of FMLA.  For most federal employees, FMLA enforcement falls to the U.S. Office of Personnel Management or the Congress.

 Covered Employers

FMLA rules apply to all state, local and federal employers, as well as local school districts.  In the private sector, FMLA covers only those companies that had 50 or more employees for 20 or more workweeks during either the current or previous calendar year. 

 Eligible Employees

Only certain employees qualify for FMLA leave.  An eligible employee is one who:

  • Works for a covered employer
  • Has worked for the employer for a minimum of 12 months before taking FMLA leave, and worked at least 1,250 hours during those 12 months
  • Has a job that takes place in a location where at least 50 employees work, or within 75 miles of such a location.

The 12 months of employment don't have to occur all at once, but the clock does reset if there is a gap of seven years or more between periods of employment.  Servicemembers fulfilling National Guard or Reserve obligations are exempt from this rule, however, as are employees subject to a written agreement that expresses an employer's intent to rehire the employee at the end of the gap in employment.

 Reasons for Leave

Only certain situations trigger the right to take FMLA leave.  Employers must grant 12 weeks of FMLA leave, but only if one or more of the following situations occurs:

  • The birth and care of the employee's newborn child;
  • The placement with the employee of a foster or adopted child;
  • The employee must care for a spouse, child or parent with a serious medical condition;
  • The employee has a serious health condition;
  • Any "qualifying exigency" arising out of the active duty or imminent active duty in the National Guard or Reserve in support of a contingency operation of the employee's spouse, child or parent.  (The employee is entitled to 26 weeks of leave in this situation).

There is a specific definition for a "serious health condition."  For more information see: 29 CFR § 825.113

Employers or employees may opt to substitute paid leave for FMLA leave.  This will not extend the maximum amount of time for FMLA leave, which remains at 12 weeks, but it does mean that the employee will be paid for those days that are covered by the accrued paid leave.

 Continuation of Health Benefits

If covered employers provided group health insurance to an employee before the employee went on FMLA leave, the FMLA requires that the employer continue providing that coverage on the same terms while the employee is on FMLA leave.  Employees who paid a share of the health insurance prior to FMLA leave must make arrangements to continue paying this share while on leave.

 Going Back to Work

Once FMLA leave has ended, employers must restore the employee to their original position or an equivalent position with equivalent pay and benefits.  Employers cannot base employment decisions on an employee's decision to take FMLA leave.  Employers must pay out bonuses earned before the leave, but employers have no responsibility to pay out bonuses that could have been earned were it not for the leave. 

In certain limited circumstances, employers can refuse to reinstate highly-paid "key employees", but cannot deny those employees the ability to take FMLA leave.

 Notification Requirements

 Employee

If possible, the employee must provide 30 days notice to the employer concerning their intention to take FMLA leave.  When 30 days notice is not possible, the employee must provide notice whenever practicable.  Employees must also give their employer enough information for the employer to determine whether the type of leave requested would fall under FMLA. 

If the employee is requesting FMLA leave for the first time, they do not have to declare their intention to take FMLA leave.  The second request for FMLA leave for the same reason, however, requires the employee to refer to the qualifying reason for the leave or the need for FMLA leave specifically.

 Employer

Employers covered by FMLA must post an approved notice that explains FMLA rights and responsibilities.  Employers must also include this notice in employee handbooks or other written resources concerning benefits.  In the absence of such documents, employers must distribute the notice to employee upon hiring.  The Department of Labor has several form notices that employers may use for these purposes.

After an employee requests FMLA leave or the employer determines that leave might fall under the FMLA, the employer must inform the employee of their eligibility to take the leave and their rights and obligations under the FMLA .  Once the employer has enough information to conclusively determine that the leave falls under the FMLA, the employer must inform the employee of the determination and notify them that the leave will count towards their FMLA allowance. 

 Medical Certification

Employers can require medical certification in a number of situations.  An employee's direct supervisor cannot verify a medical certification of a serious medical condition, but employers may use a health care provider, a human resource professional, a leave administrator or a management official to do so.  Employers can require:

  • Medical certification for a request for leave resulting from a serious health condition of the employee or the employee's spouse, child or parent;
  • Second or third opinions (paid for by the employer) of a serious medical condition, as well as periodic recertifications of the condition; and
  • Certification that an employee returning from FMLA leave for a serious health condition can safely resume work.
Next Steps
Contact a qualified employment attorney to make sure
your rights are protected.
(e.g., Chicago, IL or 60611)

Help Me Find a Do-It-Yourself Solution