Know Your Rights: Family and Medical Leave Act

In order to be eligible for FMLA leave, both the employee and employer must meet certain requirements. In the private sector, only businesses and organizations that employ 50 or more employees for at least 20 workweeks in the current or preceding calendar year are required to provide FMLA leave. While in the public sector, all local, state and federal government agencies, as well as public and private elementary and secondary schools, are required to provide FMLA leave regardless of the number of employees.

If you work for an eligible employer you must also have worked for your employer for 12 months, although these months do not have to be in a row so seasonal workers still qualify. Additionally, you must have worked for the employer for at least 1,250 hours in the 12 months before you take leave. Finally, you must have worked at or currently work at a location within 75 miles of where the company employs 50 or more employees in order to be eligible. In most cases, the required hours and months worked do not have to be consecutive.

Some types of workers must meet other special requirements to qualify for FMLA leave; you can find more detailed information about the FMLA from the U.S. Department of Labor.

Under the FMLA, covered employees are eligible to take up to 12 weeks of unpaid leave per year (12 month period) following the birth; foster or adoption of a child; to recover from a serious health condition; or to care for an immediate family member with a serious health condition. The FMLA also requires covered employers to maintain an employee’s health insurance while the employee is on FMLA leave and prohibits employers from retaliating against employees who take FMLA leave. Covered employers must also restore an employee to the same or a similar job when the employee returns from FMLA leave.

Military families may be eligible to take up to 26 weeks of FMLA leave in a single 12-month period to care for a covered service member with a serious injury or illness.

The definition of a serious health condition under FMLA can be found here. Some examples include:

• Conditions requiring an overnight stay in a hospital or other medical care facility
• Conditions that incapacitate you or your family member (such as conditions that make you unable to attend work or school) for more than three consecutive days and involve ongoing medical treatment (either multiple appointments with a healthcare provider or a single appointment and follow-up care, such as prescription medication)
• Chronic conditions that cause occasional periods of incapacity for you or a family member and that require treatment by a healthcare provider at least twice a year
• Pregnancy and related conditions, including prenatal medical appointments, incapacity due to morning sickness, and medically required bed rest

An employer is not required to provide paid FMLA leave; the FMLA only guarantees job-protected, non-paid leave.  However, state governments and individual employers can make paid family or medical leave available. Several states and the District of Columbia provide additional leave or paid leave in addition to federal FMLA leave.

Generally, no. The FMLA prohibits employers from retaliating against an employee who takes leave, and requires employers to make sure that an employee has the same or a similar job upon their return. Employers may be able to move a returning employee to a different position, but only if that position provides equivalent pay, benefits and employment terms equivalent to those of the employee’s previous job. An employer cannot use the fact that you took FMLA leave to justify adverse employment actions such as a demotion, disciplinary proceeding or reduction in pay.

“Key employees” may not be guaranteed reinstatement to their positions following FMLA leave. A “key employee” is defined as a salaried, FMLA-eligible employee who is among the highest paid 10 percent of all the employees working for the employer within 75 miles of the employee’s worksite. Find out more here

Generally, yes. An employee must tell the employer at least 30 days before taking FMLA leave if the leave is foreseeable, i.e., for such things as the birth or adoption of a child, a planned medical procedure, or planned treatment for a serious health condition. If it is not possible to give 30 days’ notice, an employee must give notice as soon as it is possible and practical, which usually means within one or two business days of the employee learning of their need for leave.

Whenever an employee is able to give advance notice of the need to take FMLA leave, the employee must follow the employer’s notification policy and generally should provide enough information for the employer to determine whether the leave may be covered by the FMLA.  They also need to tell the employer how much time off they anticipate they’ll need.  An employer may also require certification (and recertification in some cases) from a healthcare provider in the event of a medical leave.

Employers must post a notice explaining an employee’s rights under the FMLA, and must make information about the FMLA available to new hires, such as in an employee handbook. Employers must also provide the employee with notice concerning his or her eligibility for FMLA leave and his or her rights under the FMLA when an employee requests leave for an FMLA-qualifying reason, even if the employee did not expressly ask for FMLA leave. An employer has five days to provide the employee with this information.

For most eligible employees, including private, state and local government employees and some federal employees, the FMLA is enforced by the U.S. Department of Labor’s (DOL) Employment Standards Administration. If you feel your rights have been violated, you can file a complaint with your local office of the DOL Employment Standards Administration Wage and Hour Division. However, for other federal employees, the FMLA is enforced by the U.S. Office of Personnel Management (OPM). For more information about initiating a complaint in your agency, contact your servicing personnel office.

If you prefer, you may file a private civil lawsuit against an employer for violations.  The FMLA is subject to a statute of limitations, which means that an individual must file their claim within a specific amount of time, generally within two years after the last action that the employee believes was in violation of the FMLA, or three years if the violation was willful.