Taking Family and Medical Leave

Learn about the FMLA, state laws, eligibility, regulations, and employer policies governing family and medical leave.

By , J.D. UC Berkeley School of Law

The Family and Medical Leave Act, or FMLA, provides important rights to employees who need to take family or medical leave -- that is, time off from a job in order to attend to personal and family needs. But these rights under the FMLA rights are limited, and the time off is unpaid. In addition to the federal FMLA, many states have enacted their own family and medical leave laws (see State FMLA Laws), some of which cover more workers or provide greater benefits than the federal law. And many employers are picking up where federal and state law leaves off.

Because of this often complicated maze of laws, it's important that you gather information on all of the benefits and legal protections that apply to your situation before you take a family or medical leave from work. Read on to learn about the FMLA, state laws providing family and medical leave, and different employer policies.

Federal Law: The FMLA

The FMLA, passed by Congress in 1993, requires certain employers to give their workers up to 12 weeks off per year to care for a seriously ill family member, recuperate from a serious illness, care for a new child, or handle issues arising from a family member's call to active military duty. It also gives employees the right to take up to 26 weeks of leave to care for a family member who is seriously injured or become ill while on active military duty. When they return from leave, these workers have the right to be reinstated to the same or an equivalent position. But FMLA leave is unpaid -- and that's where, critics say, the law falls short of its goals.

An employee is entitled to FMLA leave if all three of the following conditions are met:

  • Number of employees. The employer has 50 or more employees who work within a 75-mile radius. All employees on the payroll -- including part-time workers and workers currently out on leave -- count toward the total.
  • Length of time employed. The employee has worked for the employer for at least 12 months.
  • Hours worked. The employee has worked at least 1,250 hours (about 25 hours a week) during the 12 months immediately preceding the leave.

Even if you meet all three of these requirements, you can take FMLA leave only for specified reasons. Not every personal or family emergency qualifies for FMLA leave. You must be seeking leave for:

  • Birth, adoption, or foster care. If you become a new parent or foster parent, you may take FMLA leave within one year after the child is born or placed in your home. You can start your leave before the child arrives, if necessary, for prenatal care or preparations for the child's arrival. If both parents work for the same employer, they may be entitled to less leave.
  • The employee's serious health condition. You can take leave to recuperate from your own serious health problem. Generally, an employee who requires inpatient treatment, has a chronic serious health problem, or is unable to perform normal activities for three days while under the care of a doctor has a serious health condition.
  • A family member's serious health condition. You are entitled to take leave to care for a seriously ill family member. However, only certain family members are covered. Parents, spouses, and children are included, but grandparents, domestic partners (of the same or opposite sex), in-laws, and siblings are not.
  • Qualifying exigencies related to a family member's active duty. You are entitled to take leave to handle certain urgent matters arising from a family member's active duty or call to active duty in the military (for purposes of this type of leave only, adult children are covered family members). Only certain activities are covered, including attending military events, arranging child care, seeking counseling, and spending time with the family member who is about to be deployed or is on temporary rest and recuperation leave.
  • A family member's service-related injury or illness. If your family member (which, for this provision only, is defined more extensively to cover next of kin and blood relatives) suffers a serious injury or illness while on active military duty, you can take up to 26 weeks of leave in a single 12-month period to provide care. Unlike the 12-week leave provisions discussed above, this leave doesn't renew every 12-months: It is a per-service member, per-injury requirement. Unless another family member is injured or the same family member returns to duty and suffers another injury, the employee is not entitled to any more leave once the 26-week entitlement is used up.

Employers who are subject to the FMLA have certain responsibilities to employees who take FMLA leave. Employers must reinstate most employees to their former positions (or equivalent ones, in some cases), provide employees with continued health insurance while on leave, and allow employees to take paid time off (such as vacation and sick time) during unpaid FMLA leave under certain circumstances.

Find out everything you need to know about the FMLA with Nolo's book The Essential Guide to Family & Medical Leave.

Reinstatement to Your Position

Under the FMLA, you can take up to 12 weeks of unpaid leave in any 12-month period for the first four reasons listed above; military caregiver leave can last for up to 26 weeks in a single 12-month period. When your leave ends, your employer must reinstate you to the same position you held when you went out on leave or a position equivalent in pay, benefits, and other working conditions, subject to these rules:

  • You have no greater right to reinstatement than you would have had if you had not taken leave. If your position is legitimately eliminated while you are out on leave, you don't have the right to be reinstated. However, this is true only if the elimination of your job is unrelated to your leave. For example, if you work in the accounting department and your employer decides, while you are on leave, to lay off the entire department and outsource the company's bookkeeping needs, you are not entitled to reinstatement. But your employer cannot eliminate just your position because you were out on leave -- that would be retaliation against you for taking leave.
  • Employers can refuse to reinstate certain highly paid, "key" employees. If (1) you are among the 10% most highly paid of the employer's salaried workforce within a 75-mile radius of your workplace and (2) reinstating you would cause "substantial and grievous economic injury" to the company, your employer can refuse to give you your job back. However, your employer must warn you ahead of time that you are considered a key employee and may not be entitled to return.

Continued Health Insurance

If your employer provides a group health plan, you are entitled to continued health insurance coverage while you are on leave. However, if you decide voluntarily not to return to work when your leave ends, your employer can require you to reimburse it for the health care premiums it paid on your behalf during your leave. (Your employer cannot require this if you cannot return to work after taking leave because the serious health condition continued or recurred or because of other circumstances beyond your control.)

Use of Paid Time Off

Although FMLA leave is unpaid, you are entitled to use your accrued paid leave during FMLA leave in certain circumstances. You can use accrued leave only if the reasons for the leave are covered by your employer's leave policy or state law. For example, you cannot use paid sick leave during FMLA leave to care for an ill family member unless your employer's policy or state law allows employees to take sick leave to care for others who are ill.

In addition, your employer can require you to use accrued vacation days during FMLA leave and accrued sick days if the reasons for the leave are covered by your employer's sick leave policy. For instance, if you take time off to care for a sick family member, your employer can force you to use your accrued sick leave if its leave policy allows you to use sick leave to care for ill family members.

You must follow your company's usual rules and procedures for taking paid leave, even if you are using it while on FMLA leave. For example, if your company requires one week's notice before employees can take vacation time, and you have to go out on emergency FMLA leave, your company may not allow you to use paid vacation during the first week of your FMLA leave. Once the notice week has passed, you are entitled to use your vacation time.

Scheduling and Notice Requirements

The FMLA requires you to give 30 days' notice of the need for leave if it is foreseeable. This is most often the case if you plan to take leave for the birth or adoption of a child or to care for a family member recovering from surgery or other planned medical treatment.

If your need for leave is not foreseeable, you are required to give as much notice as is both possible and practical under the circumstances. If you have a medical emergency, for example, it might not be possible for you to give any advance notice at all, but you should notify your employer as soon as you are able to do so.

Some employees may want to take leave intermittently rather than all at once. If you need physical therapy for a serious injury, for example, or you need to care for a spouse receiving periodic medical treatments such as chemotherapy, you might want to take a few hours off per week rather than 12 weeks at a clip. You may take FMLA leave intermittently to care for an injured service member, for your own serious health condition, or for the serious health condition of your child, parent, or spouse when medically necessary. You may also take intermittent leave for qualifying exigencies. Employers are not required to allow intermittent leave for the birth or adoption of a new child, but they may agree to do so.

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