The FMLA: A brief overview
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A guide to common questions about the Family and Medical Leave Act (FMLA)
Answers for employers and employees about FMLA-protected leave requirements and eligibility
The Family Medical Leave Act (FMLA) was enacted in 1993 to provide important protections for employees who need to take time off to care for medical conditions and family responsibilities. But even though the act has been in effect for over 30 years, people have questions about what’s covered, who is eligible, and what the requirements are for employees and employers alike. This article provides a brief, general overview of the act’s provisions, then lists answers to common employee questions.
Employers
Check Guardian’s Employer Guide to FMLA Rules, or refer to the more complete Family and Medical Leave Act Guide from the United States Department of Labor.
Brokers
Find insights and resources to help clients deal with FMLA and other leave regulations, and the broader issue of absence management.
Employees
Download the Family and Medical Leave Act Guide for Employees from the US Department of Labor.
Job-protected leave:
The basic purpose of the Family and Medical Leave Act is to allow workers to take up to 12 workweeks per year of unpaid, job-protected leave with all health benefits maintained. At the end of FMLA leave, they must return to the same position or an equivalent job. However, not every employer or employee is covered under the act.
The FMLA is a federal law that only requires unpaid leave.
However, many states have enacted Paid Family Medical Leave (PFML) laws that provide paid leave in certain situations.
Employers covered under the FMLA:
all private sector employers with 50 or more employees for at least 20 workweeks in the current or preceding calendar year
all public agencies, including local, state, and federal employers
local schools
Employees eligible for FMLA leave: The person must work for a covered employer for at least 12 months and have 1,250 work hours in the prior 12 months at a location where the employer has 50 or more employees within 75 miles. The 12 months of employment do not need to be consecutive – there can be breaks.
FMLA leave covers these situations:
the birth of a son or daughter, and to bond with the newborn child
adoption or foster care placement of a child, and to bond with the child
to care for an immediate family member with a “serious health condition” (wife, husband, child, or parent – but not a parent "in-law")
to take medical leave when the individual is unable to work because of a serious health condition
for certain situations that arise when an employee's immediate family member is called to active duty status as a member of the National Guard, Reserves, or Regular Armed Forces
Mothers and fathers have the same right to take FMLA leave to bond with a newborn infant.
However, if both spouses work for the same employer, the employer may require eligible spouses to share FMLA to a combined total of 12 workweeks of leave in a 12-month period for the following FMLA-qualifying reasons:
the birth of a son or daughter and bonding with the newborn child,
the placement of a son or daughter with the employee for adoption or foster care and bonding with the newly placed child, and
the care of a parent with a serious health condition.
There are additional entitlements for military servicemember care:
Eligible employees can take up to 26 workweeks of FMLA leave in a year to care for a covered servicemember with a serious injury or illness. Eligible spouses who work for the same employer are also limited to a combined total of 26 workweeks of leave in a single 12-month period to care for a covered servicemember with a serious injury or illness (commonly referred to as “military caregiver leave”) if each spouse is a parent, spouse, son or daughter, or next of kin of the servicemember. When spouses take military caregiver leave as well as other FMLA leave in the same leave year, each spouse is subject to the combined limitations for the reasons for leave listed above.
Issues that qualify as a serious health condition include:
conditions requiring an overnight stay in a hospital or other medical care facility
conditions that incapacitate (i.e., make someone unable to work) for more than three consecutive days and have ongoing medical treatment
chronic conditions that cause occasional periods of incapacitation and require treatment at least twice a year
pregnancy, including prenatal medical appointments, incapacity due to morning sickness, and medically required bed rest
Employers may require certification (proof of a serious health condition) from a medical provider showing the need for leave:
Employees do not have to provide their medical records, just medical certification containing "complete and sufficient" medical facts to establish a serious health condition.
In no case may the employee's direct supervisor contact the employee's health care provider. Per HIPAA regulations, employers may contact an employee's health care provider for medical certification purposes by using a human resource professional, a leave administrator, or a management official, and the employee needs to provide written authorization to do so.
If an employee fails to provide requested proof of a serious health condition, such leave requests may be denied.
Job restoration is required after FMLA leave:
The employer must return the employee to the same job, or one that is nearly identical, meaning that it offers or entails:
the same shift or general work schedule, and at a nearby worksite that does not involve a significant increase in commuting time or distance
the same or substantially similar duties, responsibilities, and status
the same general level of skill, effort, responsibility, and authority
identical pay, including equivalent premium pay, overtime, and bonus opportunities, profit-sharing, or other payments, and any unconditional pay increases that occurred during FMLA leave
identical benefits, such as life insurance, health insurance, disability insurance, sick leave, vacation, educational benefits, pensions, etc.
Every employer covered by the FMLA is required to post a prominent notice on its premises explaining the FMLA's provisions.
This notice should also be in employee handbooks or other guidance concerning their benefits. If those materials don’t exist, the employer must distribute a copy of the notice to each new hire.
No, employees are not required to take FMLA-protected leave all at once. When medically necessary, you can take intermittent leave: in separate blocks of time, or on a reduced schedule, for example, by reducing the number of days you work per week.
The FMLA is a federal law that protects an employee’s job and does not provide income replacement. However, several states have Paid Family Medical Leave (PFML) laws that do require paid leave in many situations. Even if your state does not provide paid leave, the federal FMLA law lets you elect (or your employer may require) the use of your accrued paid vacation leave, paid sick leave, or other accrued paid leave for some or all during the FMLA leave period. For more information about your FMLA rights, see 8 things every employee should know about FMLA.
Yes, you can be laid off. FMLA regulation 825.216 (a) states: "An employee has no greater right to reinstatement or to other benefits and conditions of employment than if the employee had been continuously employed during the FMLA leave period. An employer must be able to show that an employee would not otherwise have been employed at the time reinstatement in order to deny restoration to employment." However, in such cases the employer is responsible for proving that the layoff is not leave-related.
There really isn't an "easier" or "harder" way to get protection under the Family and Medical Leave Act. In all cases, you must be an FMLA-eligible employee, you must work for a covered employer, and have a qualified reason for requesting leave, such as a serious health condition. Also, if asked by your employer to provide appropriate certification (such as proof of any health conditions from your health care provider), you need to do so in a timely manner – within 15 calendar days, unless there are extenuating circumstances.
The FMLA job restoration requirement is for employers, not employees. In other words, after taking FMLA leave the employer must let an employee return to the same or similar position – but the employee isn’t required to return after FMLA leave. An employee can give resignation notice the day they return from FMLA leave.
Yes, an employee can give appropriate resignation notice at any point during their FMLA leave. However, it’s important to note that if (for example) you give two-week notice during your FMLA leave, your employer can immediately terminate your employment, and they will no longer be required to maintain your employee health benefits (but if you would have otherwise been eligible for health care coverage under COBRA, that eligibility should continue).
If you are on FMLA leave, you may notify your employer that you are leaving the company in two weeks (or any other appropriate timeframe) via the normal process for doing so in your company. However, once you have done so, your employer can choose to terminate you immediately. In either case, your FMLA protections, including continuing health care coverage, will end when you separate from your employer. Also, if you qualify for Paid Family Medical Leave (PFML) under the laws in your state, you will likely lose those benefits as well.
1. Notice requirements: As an employee, you must provide oral notice or a simple written statement to your employer of the need for FMLA leave. You must also comply with standard policies for requesting leave unless unusual circumstances (such as a medical emergency) prevent you from doing so. While you don’t actually have to mention the FMLA when requesting leave, for it to count as an FMLA request you need to provide enough information for your employer to know your situation may be covered by FMLA. For example, if you just say you're taking a week off without telling your boss that your spouse had a heart attack, then the company has no way of knowing the leave may be protected under FMLA.
2. Certification requirements: You must provide proof of a serious health condition if your employer requests it. You do not have to provide your medical records to your employer, just documentation with "complete and sufficient" medical facts. Any contact between your employer and a health care provider (for example, to authenticate a letter from your medical provider) must comply with HIPAA privacy regulations and you have to give your health care provider a written authorization to disclose any information.
Depending on the nature of your leave, other types of certification may be needed. For example, if you are on FMLA leave due to your own serious health condition, your employer may require proof that you are fit to resume your duties. Or, if you are requesting leave for a qualifying military exigency, (e.g., because your spouse is being deployed overseas), your employer can request appropriate proof, such as a copy of their active duty orders.
The situations and conditions that qualify for 12 weeks of FMLA-protected employee leave include:
Birth: A father or mother can take time to bond with their newborn child.
Adoption: An adoptive or foster parent can take time to bond with a newly-placed child.
Medical need: An employee is entitled to leave when they are unable to work due to an FMLA-specified serious health condition.
Family care: Employees are entitled to time off to care for an immediate family member (spouse, child, or parent – but not an "in-law") with a serious health condition.
Qualifying exigency leave: When a military spouse, child, or parent is deployed or called on covered active duty, employees are entitled to FMLA leave to deal with the resulting disruption.
Military caregiver leave: Eligible employees are entitled to additional protected leave – up to 26 workweeks in a single 12-month period – to care for a covered servicemember with a serious injury or illness. In such cases, the eligible employee can be the servicemember's spouse, son, daughter, parent, or even next of kin.
Yes, there are several situations in which a request for FMLA-protected leave should not (or cannot) be granted according to the regulations, including:
The employer is not covered by the FMLA, for example, because the company has less than 50 employees.
The employee does not meet FMLA eligibility requirements, for example, because he or she does not meet the 1,250 hours of service threshold.
The request is not for a qualified reason, for example, because a medical condition is not defined as a serious health condition under the FMLA.
The employee doesn't provide "complete and sufficient" certification, such as documents from a health care provider stating that he or she has a serious health condition.
No, employees are not required to take FMLA-protected leave all at once. When medically necessary, you can take intermittent leave: in separate blocks of time, or on a reduced schedule, for example, by reducing the number of days you work per week.
The FMLA is a federal law that protects an employee’s job and does not provide income replacement. However, several states have Paid Family Medical Leave (PFML) laws that do require paid leave in many situations. Even if your state does not provide paid leave, the federal FMLA law lets you elect (or your employer may require) the use of your accrued paid vacation leave, paid sick leave, or other accrued paid leave for some or all during the FMLA leave period. For more information about your FMLA rights, see 8 things every employee should know about FMLA.
Yes, you can be laid off. FMLA regulation 825.216 (a) states: "An employee has no greater right to reinstatement or to other benefits and conditions of employment than if the employee had been continuously employed during the FMLA leave period. An employer must be able to show that an employee would not otherwise have been employed at the time reinstatement in order to deny restoration to employment." However, in such cases the employer is responsible for proving that the layoff is not leave-related.
There really isn't an "easier" or "harder" way to get protection under the Family and Medical Leave Act. In all cases, you must be an FMLA-eligible employee, you must work for a covered employer, and have a qualified reason for requesting leave, such as a serious health condition. Also, if asked by your employer to provide appropriate certification (such as proof of any health conditions from your health care provider), you need to do so in a timely manner – within 15 calendar days, unless there are extenuating circumstances.
The FMLA job restoration requirement is for employers, not employees. In other words, after taking FMLA leave the employer must let an employee return to the same or similar position – but the employee isn’t required to return after FMLA leave. An employee can give resignation notice the day they return from FMLA leave.
Yes, an employee can give appropriate resignation notice at any point during their FMLA leave. However, it’s important to note that if (for example) you give two-week notice during your FMLA leave, your employer can immediately terminate your employment, and they will no longer be required to maintain your employee health benefits (but if you would have otherwise been eligible for health care coverage under COBRA, that eligibility should continue).
If you are on FMLA leave, you may notify your employer that you are leaving the company in two weeks (or any other appropriate timeframe) via the normal process for doing so in your company. However, once you have done so, your employer can choose to terminate you immediately. In either case, your FMLA protections, including continuing health care coverage, will end when you separate from your employer. Also, if you qualify for Paid Family Medical Leave (PFML) under the laws in your state, you will likely lose those benefits as well.
1. Notice requirements: As an employee, you must provide oral notice or a simple written statement to your employer of the need for FMLA leave. You must also comply with standard policies for requesting leave unless unusual circumstances (such as a medical emergency) prevent you from doing so. While you don’t actually have to mention the FMLA when requesting leave, for it to count as an FMLA request you need to provide enough information for your employer to know your situation may be covered by FMLA. For example, if you just say you're taking a week off without telling your boss that your spouse had a heart attack, then the company has no way of knowing the leave may be protected under FMLA.
2. Certification requirements: You must provide proof of a serious health condition if your employer requests it. You do not have to provide your medical records to your employer, just documentation with "complete and sufficient" medical facts. Any contact between your employer and a health care provider (for example, to authenticate a letter from your medical provider) must comply with HIPAA privacy regulations and you have to give your health care provider a written authorization to disclose any information.
Depending on the nature of your leave, other types of certification may be needed. For example, if you are on FMLA leave due to your own serious health condition, your employer may require proof that you are fit to resume your duties. Or, if you are requesting leave for a qualifying military exigency, (e.g., because your spouse is being deployed overseas), your employer can request appropriate proof, such as a copy of their active duty orders.
The situations and conditions that qualify for 12 weeks of FMLA-protected employee leave include:
Birth: A father or mother can take time to bond with their newborn child.
Adoption: An adoptive or foster parent can take time to bond with a newly-placed child.
Medical need: An employee is entitled to leave when they are unable to work due to an FMLA-specified serious health condition.
Family care: Employees are entitled to time off to care for an immediate family member (spouse, child, or parent – but not an "in-law") with a serious health condition.
Qualifying exigency leave: When a military spouse, child, or parent is deployed or called on covered active duty, employees are entitled to FMLA leave to deal with the resulting disruption.
Military caregiver leave: Eligible employees are entitled to additional protected leave – up to 26 workweeks in a single 12-month period – to care for a covered servicemember with a serious injury or illness. In such cases, the eligible employee can be the servicemember's spouse, son, daughter, parent, or even next of kin.
Yes, there are several situations in which a request for FMLA-protected leave should not (or cannot) be granted according to the regulations, including:
The employer is not covered by the FMLA, for example, because the company has less than 50 employees.
The employee does not meet FMLA eligibility requirements, for example, because he or she does not meet the 1,250 hours of service threshold.
The request is not for a qualified reason, for example, because a medical condition is not defined as a serious health condition under the FMLA.
The employee doesn't provide "complete and sufficient" certification, such as documents from a health care provider stating that he or she has a serious health condition.
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