A guide to common questions about the Family and Medical Leave Act (FMLA)

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:

1. conditions requiring an overnight stay in a hospital or other medical care facility

2. conditions that incapacitate (i.e., make someone unable to work) for more than three consecutive days and have ongoing medical treatment

3. chronic conditions that cause occasional periods of incapacitation and require treatment at least twice a year

4. 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.