The federal Family and Medical Leave Act (FMLA) requires employers to provide unpaid leave to individuals who must attend to certain medical or family matters. Under the FMLA, employees may take unpaid leave for up to twelve workweeks in a twelve month period. This leave is generally job-protected, meaning an employee can return to the position they held before they took the leave.

What Employees Can Take Leave?

To be entitled to FMLA leave, an employee must meet eligibility requirements. These include:

  • The employee must work for an employer that the FMLA applies to. The FMLA applies to the following employers:
    • Public agencies: Public agencies covered by the FMLA include federal, state, and local employers. They also include public schools.
    • Private employers: Private employers that employ 50 or more employees, for at least 20 workweeks, are subject to the FMLA.
  • The employee seeking leave must have worked at least 1,250 hours in the 12 months prior to when leave begins.
  • The employee must have worked for the employer for at least 12 months since the employee began employment with the employer.

What Kind of Leave are Employees Entitled To Take?

Employees may take unpaid leave for up to twelve weeks of work in any twelve-month period. The FLML does not require that this leave be paid. However, the law permits an employee to elect, or to “substitute” accrued paid vacation leave, paid sick or family leave in lieu of using the unpaid FMLA leave. If an employee informs an employer they are using paid leave for a reason covered by the FMLA, the leave is “protected” under the FMLA.

What is “FMLA-Protected” Leave?

An employee who takes unpaid FMLA leave cannot be fired for taking the leave. In addition, under the FMLA, the employer must return the employee to their previous position, or to a nearly identical (equivalent) one. On an employee’s return from FMLA leave, the FMLA requires that the employer return the employee to the same job, or one that is nearly identical (equivalent). If an employer fails to do so, an employee may sue that employer in court.

The right to job restoration to the same or nearly equivalent position is not unlimited. For example, if an employer lays people off through a reduction in force, an employee taking FMLA leave can be laid off just as other employees can be. In addition, employers can deny job restoration to key employees. A “key employee” is an employee that is paid a salary, and is eligible for FMLA leave.

A key employee is part of the highest-paid ten percent of the workforce the employer employs anywhere within 75 miles from the worksite of the employee. The FMLA permits an employer to deny job restoration to a key employee if returning that employee will cause significant economic injury to the employer’s operations.

Are Employees Who Take FMLA Leave Entitle to Group Health Coverage?

In addition, under the FMLA, employers must maintain group health coverage for an employee taking FMLA leave. If the employer normally covers the costs of the health care premiums, the employer must pay the premiums for an employee on leave. If an employer normally requires an employee to contribute to premiums, the employer can require employees on leave to continue to contribute to those premiums in the same amount as they did before leave.

For What Reasons Can an Employee Take FMLA Leave?

An employee can take FMLA leave for the following reasons:

  • For the birth of a child, and to bond with the newborn.
  • When the employee adopts a child, or becomes a foster parent.
  • To bond with a newly-adopted child or to bond with a child newly placed in the parent’s foster care.
  • To provide caretaker services for a member of the employee’s immediate family. That family member must have a serious health condition. Immediate family members include children, spouses, and parents. Immediate family members do not include:
    • In-laws
    • Brothers and sisters
    • Grandparents.
  • To take medical leave when the employee themselves cannot work due to a serious health condition. This condition must render the employee unable to perform essential functions of the employment.
  • For qualifying emergencies arising from an employee’s daughter, son, spouse, or parent, is on covered active duty, or is called to active duty status in the Reserves, Regular Armed Forces, or National Guard.

Must I Give My Employer Notice of My Intent to Take FMLA Leave?

Employees must give employers notice of intent to take leave as soon as practical. If the event for which leave is sought is foreseeable, such as childbirth, the employee must give at least 30 days’ notice before going on leave. If the need for leave cannot be foreseen, the employee must give as much notice as is practical.

Do I Need the Help of a Lawyer in Exercising FMLA Leave Rights?

If you are entitled to FMLA leave and your employer disputes or refuses your request, you should contact an employment lawyer. An experienced employment lawyer near you can work with you to obtain the leave you are entitled to.