Family and Medical Leave: An Overview

You may be required to give employees time off for illness, childbirth, adoption, or caregiving responsibilities.

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It is often difficult for working people to successfully balance the demands of a job with personal and family needs. In response to this much-discussed problem, Congress passed the Family and Medical Leave Act (FMLA). The FMLA requires certain employers to allow their employees to take up to 12 weeks of unpaid leave per year to care for a seriously ill family member, to recuperate from their own serious illness, or to take care of a newborn or newly adopted child. In most cases, the employer must reinstate employees when they return from leave.

In 2008, the FMLA was amended to give employees the right to take leave to handle certain responsibilities arising out of a family member's call to active duty or to care for a family member who suffered or exacerbated a serious injury while on military duty. These leave rights are covered in Family and Medical Leave for Military Family Members.

This article provides basic information about the federal FMLA. Your state may also have a family leave law, and it may differ from the federal law in significant ways. For more on how state leave laws interact with the FMLA, see State Family and Medical Leave Laws.

Which Employers Must Provide Leave

The FMLA applies to your business and your employees if three conditions are met:

  • You have 50 or more employees who work within a 75-mile radius. All employees on your payroll -- including those who work part time and those on leave -- must be included in this total.
  • The employee seeking leave has worked for you for at least 12 months.
  • The employee has worked for you for at least 1,250 hours (about 25 hours per week) during the 12 months immediately preceding the leave.

For more information on who is entitled to leave, see Who Is Eligible for FMLA Leave? 

When You Must Provide Leave

An employee is entitled to take FMLA leave only for specified reasons. Not every personal or family emergency qualifies for FMLA leave. The employee must be seeking leave for:

  • Birth, adoption, or foster care. A new parent or foster parent may take FMLA leave within one year after the child is born or placed in the parent's home. Leave may begin before the child arrives, if necessary for prenatal care or preparations for the child. If both parents work for the same employer, they may be entitled to less leave. See Nolo's article on Providing Pregnancy and Parental Leave to learn more.
  • The employee's serious health condition. Generally, an employee who requires inpatient treatment, has a chronic health problem, or is unable to perform normal activities for at least three days while under the treatment of a doctor has a serious health condition.
  • A family member's serious health condition. You must grant leave to an employee who needs to care for an ill family member. Under the FMLA, only parents, spouses, and children are considered family members. Grandparents, same-sex partners, in-laws, and siblings are not included.
  • Military family leave. Employees may take leave to care for a family member who was seriously injured on active military duty or to handle specific issues arising out of a family member's deployment. (These types of leave are covered in Nolo's article Family and Medical Leave for Military Family Members.)

What You Must Provide

Under the FMLA, an eligible employee is entitled to take 12 weeks of unpaid leave in any 12-month period for the reasons listed above; an employee who needs leave to care for an injured service member can take up to 26 weeks of leave in a single 12-month period. When the employee's leave is over, you must reinstate the employee to the same position he or she held prior to taking leave, with a few exceptions.

If you have a group health plan for your employees, you must also maintain insurance coverage for employees on FMLA leave. However, you can require your employees to reimburse you for the premiums you paid if they choose not to return to work when their leave ends.

Although FMLA leave is unpaid, you must allow employees to substitute their accrued paid leave if the reason for leave is covered by your sick leave plan. For example, you need not allow an employee to use sick leave as FMLA leave to care for an ill family member unless your sick leave plan allows employees to take paid time off for this purpose. Also, you may require employees to follow your usual rules for using paid leave.

Scheduling and Notice Requirements

Having employees gone for weeks at a time can be disruptive to your workplace. Recognizing this, the FMLA requires employees to give you 30 days' notice of the need for leave if it is foreseeable. This is most often the case if leave will be taken for the birth or adoption of a child or to care for a family member recovering from surgery or other planned medical treatment.

If the need for leave is not foreseeable, the employee is required to give only such notice as is practical. If a medical emergency arises, for example, it might be impossible for an employee to give you notice in advance.

Learn more about these rules in Notice Requirements Under the FMLA

Intermittent Leave

In some circumstances, an employee may want to take leave intermittently rather than all at once. If an employee requires physical therapy for a serious injury, for example, or needs to care for a spouse receiving periodic medical treatment, it might make more sense to take several hours off per week rather than 12 weeks at a clip. This may also make more sense for your business, as you will continue to have the services of your employee most of the time.

If it is medically necessary for an employee to take intermittent leave to care for a family member or for his or her own serious health condition, the employee has a right to do so. Employees may also take qualifying exigency leave on an intermittent basis. In other situations (for example, when an employee wants to take time off to care for a new child), you may, but are not required to, allow the employee to take leave on an intermittent schedule.

Certifications: Medical Proof of Illness

The law allows you to require proof that your employee or employee's family member really suffers from a serious health condition. You may ask your employee to provide certification from the treating doctor, giving certain details about the condition, including the duration of the condition, a diagnosis, and the treatment prescribed.

The law also allows you to ask for a second opinion from a doctor of your choosing, as long as you pay for it and the doctor you choose is not regularly employed by your company. If the first and second certifications conflict, you can require a third opinion from yet another doctor; this opinion will be binding on both you and your employee.

If your employee is out for an extended period of time, you may ask for a recertification of the employee's illness periodically -- generally, not more often than every 30 days. (For more information, see FMLA Certifications.)

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