Family and Medical Leave: When You Should Talk to a Lawyer

Learn how a lawyer can help you request and receive FMLA leave.

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Under the Family Medical Leave Act (FMLA), your rights and obligations, as well as your employer’s, are triggered as soon as you make your first request for leave. Every step has its own requirements and potential pitfalls, so it makes sense to consult with a lawyer as early as possible.

See Family and Medical Leave Law: An Overview for general information about the law.

What Is Family And Medical Leave?

The Family Medical Leave Act (“FMLA”) is a federal law that requires covered employers to offer up to 12 weeks of unpaid leave each year to qualified employees for their own or family members’ medical conditions, to bond with newborn or newly adopted children, and to deal with certain “exigencies” that arise when a spouse, child, or parent is on active military duty. A number of states also have some version of family and medical leave laws. (Learn more at our State FMLA Laws page.)

The FMLA does not apply to employers with fewer than 50 employees within 75 miles of the employee’s worksite; most state leave laws also exempt small employers. To be entitled to leave under the FMLA (and most state laws), an employee must have worked for the employer for at least 12 months and must have worked a specified number of hours (1,250 under the FMLA) over the 12 months preceding the leave request.

In addition to these eligibility requirements, an employee must be able to show the employer that he or she is requesting the leave for a qualifying condition, such as a serious medical condition or the birth of a child.

These threshold requirements give some idea of the complexity of leave laws and the need for legal advice throughout the process.

Seeing A Lawyer Before Requesting Leave

Calculating your total hours and whether you have worked for your employer for at least a year isn't difficult. But can you say for certain whether or not you are entitled to leave? Some of the other questions that need answering even before you request leave are:

  • How many employees work for the employer within 75 miles of your worksite?
  • Do you or a family member have a qualifying condition?

Is Your Employer Covered?

Many employers have several worksites, and coverage under the FMLA depends on the total employees within 75 miles of your site. In addition, your employer may be affiliated with other companies in such a way that the other companies’ employees may be counted for FMLA purposes. An experienced employment lawyer can determine whether or not your employer is covered by the FMLA or state leave law.

Qualifying Condition

The FMLA and most state leave laws require that you or a close family member (spouse, child, or parent) have a serious medical condition, that you have a new child, or that you have to deal with a situation caused by a close family member’s active military duty.

What is a serious medical condition? A serious medical condition is more than a simple cold or earache, such as:

  • a condition that incapacitates you for three or more days and requires the treatment of a health care provider
  • a serious chronic condition (such as asthma)
  • a condition requiring inpatient care
  • incapacity due to pregnancy or prenatal conditions, or
  • certain conditions requiring multiple treatments.

Each of these categories is subject to interpretation; an employment lawyer can help you figure out if you fall into one of the qualifying categories.

Certification

Under the FMLA and state leave laws, you have to give your employer some proof of your need for leave. A lawyer can also help you ask for what you need from a medical care provider or gather the right documents (such as adoption papers) to support your leave request.

Giving Notice

Assuming you are eligible and your employer is covered, you must give your employer enough notice such that you minimize the disruption that your leave will cause your employer. This means 30 days’ notice when your know ahead of time that you will need leave. Less notice is required if your need for leave is not foreseeable, but even then, you must give as much notice as you practically can. A lawyer can prepare you to give notice that satisfies the law. And, if your employer denies leave that you believe you were entitled to, an employment lawyer can tell you whether or not the denial was illegal.

Talking To A Lawyer While On Leave

Even if your employer grants you leave, issues may arise during the leave itself. For example, if you requested just three weeks of leave following surgery but your doctor decides that you need more time to recover, you will need to make a request to extend your leave. A lawyer can help you frame that request and gather the necessary supporting certification.

And, if your employer should try to interfere with your leave (by pressing you to work while on leave, for example), a lawyer can advise you of your rights and how to respond.

Scheduling Leave

Although you may be entitled to leave, you still have to work with your employer to schedule leave in a way that is least disruptive to your employer and still meets your needs. Your lawyer can help you set up a leave schedule that satisfies these competing interests.

Intermittent Leave

At times, you may not need full days off but just certain hours (for example, to see your physical therapist or to undergo a weekly treatment). For such needs, the FMLA requires covered employers to give qualified employees intermittent leave. You are still limited to a total of 12-weeks’ leave, and you must schedule it so as not to unduly interfere with your employer’s business operations. A lawyer can help you do both of those things.

Retaliation

If your employer replaces you while you’re on leave or takes other actions against you because you took or requested leave, you should definitely see a lawyer right away. A lawyer can help you assess whether you have been retaliated against. The FMLA and most state leave laws prohibit employer retaliation against employees who take family or medical leave.

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