FMLA: Forms, Eligibility, and Other Frequently Asked Questions
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FMLA is one of the most common laws under which new mothers and parents receive unpaid, job-protected time off after the birth of a new child. FMLA protects employees’ jobs such that they may return to their former employer after a period of what is typically called maternity or paternity leave. The details of FMLA are important for all new parents planning ton taking unpaid time off care-taking of a new baby and we try to answer some of the most commonly asked questions and provide links to resources (like FMLA forms), below.
Note: we are not attorneys but have compiled the basic facts from publicly available resources available at the U.S. Department of Labor’s website on FMLA.
What is FMLA?
The Family and Medical Leave Act is a federal law that may provide you with unpaid, job-protected time off from work for up to 12 weeks if you’re unable to work because you or a close family member has a serious health issue (including having a new baby). One of the most common uses of FMLA law is for women who expect to, or need to take maternity leave.
Why Is FMLA Used to Cover Maternity Leave?
The vast majority of private employers do not offer paid time off for the birth and bonding period after having a baby. Currently, no job protections are offered by most private employers as well. The federal law, FMLA covers maternity leave because a new baby is a member of your family that requires care-taking. Though it is not technically a serious health issue for you to give birth for most healthy normal deliveries, there is still a period of incapacity.
Does FMLA Cover Paternity Leave?
Yes, FMLA is gender neutral and applies to new parents of either gender, including adoptive, foster and legal guardians.
Who is Eligible for FMLA?
Government Employees, Private Employees Who Work at Companies with At Least 50 Employees
In order to qualify for time off covered under FMLA, you must work for a certain type of employer. If you work for the government (at the local, state or federal level), you are covered under FMLA. However, if you work for a private company, that company is exempt from having to provide FMLA-based leave if they employ fewer than 50 employees. If you work for a small employer or small business with less than 50 employees, then you are not going to be covered by FMLA unless that company voluntarily decides to allow you time off for your maternity leave, sick leave (or time off for a family-member who has those needs). That said, certain state laws may provide you time off, job-protections or even partial wage coverage. For more information about various state laws that may apply in addition to (or instead of FMLA), you can view our overview of state laws here.
You Must Have Worked At Your Company / Employer for at Least 12 Months and 1,250 Hours
If you are a new employee (eg. or hired while pregnant), you do not technically qualify for FMLA. There is a minimum tenure requirement of both having worked for at least 1 year prior to taking time off, as well as having worked at least an average of 24 hours per week during that past year.
Your Employer (If Private) Must Have At Least 50 Employees Within 75 Miles of Your Workplace
If you meet the above requirements, be sure to think about whether your employer has at least employees within a 75 mile radius of where you physically work. If they do not, and the employees are spread thin over a larger distance, that employer is not required to offer you FMLA leave or job-protected time off.
What Happens To My Benefits While I'm On FMLA Leave?
FMLA requires that group health benefits be maintained while you are on leave. This is generally very important to employees since newborn children and parents often are undergoing some major healthcare expenses related to childbirth!
When Can I Take FMLA Leave?
If you are eligible for FMLA leave and job-protected time off, then you can take up to 12 weeks of leave in any 12 month period for a wide range of reasons:
You may have a serious health issue, or your spouse, parent or child may have a serious health issue such as something that renders them incapable of attending work or school themselves for at at least 3 consecutive days and requires ongoing medical attention:
- A health condition that requires an overnight stay in a medical facility or hospital
- A chronic health condition that renders you or your family members unable to attend work and that also requires regular treatment by a health care provider
- Pregnancy and post-birth/natal medical condition that renders you unable to work (e.g. severe morning sickness or medically prescribed bed rest)
How Do I Request FMLA Time Off / Leave?
FMLA law requires that you provide your employer with notice if you are in a situation where you can (i.e. obviously if you get into a serious car accident you would not have been able to anticipate this and provide advance notice). For example, if you are pregnant or know you are due to receive medical treatment or surgery that will incapacitate you for several weeks, you must tell your employer at least 30 days in advance of when you need to leave.
You don’t need to technically frame your request for time off as “FMLA” based, but it can’t hurt. Also, while you do need to give your employer enough information that they would understand that this time off should be counted under FMLA (e.g. that you cannot work because of your physical condition or that of a family member).
What is the Process After I Request FMLA Time Off / FMLA Leave?
FMLA leave is not automatically granted and a process must be followed so do not assume that just because you meet the eligibility requirements for FMLA that you will automatically be allowed to take FMLA, job-protected leave.
After you request time off under FMLA, they must tell you within 5 business days whether you are eligible. If you are eligible, they must provide you with information about your FMLA rights and responsibilities as well as request any certification they need from you. Among the things they must provide you is when the 12 month period for your FMLA period begins and ends (e.g. is it the calendar year, is it from the beginning of the 12 month period from when you can no longer work?). They must also provide you with information about whether you have any rights or benefits regarding payment during your leave, whether you are required to provide a medical certification from your doctor or health care provider and, whether you are required to first use your paid leave allotment, whether you will be able to keep your healthcare and other benefits, and affirm that you will be able to return to your job at the end of FMLA leave.
If you are not eligible for FMLA time off, they must provide at least 1 reason stating why you are not eligible (e.g. you have only worked 1,000 hours in the past 6 months for them).
What Else Do I Need To Do While I’m Out on FMLA Leave?
If during FMLA leave (or before it begins if you are in a situation where you have had time to provide advance notice), your employer requests a medical certification from you, you must return that certification form to your employer within 15 calendar days.
You must stay in touch with your employer and they must also stay in touch with you while you are out on FMLA-protected leave. For example, if your medical doctor or health care provider tells you that you may return to work earlier than expected, you must inform your employer. Your employer can also request that you provide periodic updates on whether you plan to return to work and your medical condition.
What Is Required in the Medical Certification I May Have to Provide My Employer?
Though not all employers must require it, if your employer requests a medical certification from you, you have 15 calendar days to receive one from a health care provider. You are responsible for obtaining and paying for this certification and if you do not provide it, you may be denied FMLA leave.
Your medical certification must include:
- Contact information for your medical care provider
- An estimate or actual date for when the condition began
- How long your provider expects the condition to last
- Whether you are unable to work or your family member is unable to work and requires care
- Whether you will need the leave period to be continuous or intermittent
- Other appropriate medical facts (e.g. symptoms, hospitalizations, referrals, medications, etc)
If your employer believes your certification does not cover all the information they require, they must notify you in writing about what additional information is needed and you will have 7 calendar days to comply with their request and provide the missing information.
Your employer has the right to ask for a second opinion if they are concerned about the validity of your request but they must bear the cost of this second opinion, and they may even request a third opinion in the case of a conflicting first and second opinion (again, at their expense). Certain employers may want to also receive an updated certification and may have request that you provide one.
When I Come Back To Work After FMLA Leave, What Are My Rights?
FMLA requires that when you return to work, your employer must return you to the same or very nearly identical job. If you return to a new job, the definition for a “nearly identical job” includes the fact that the new position must:
- involve the same or substantially similar duties, responsibilities and status;
- include the same general level of skill, effort, responsibility and authority;
- offer identical pay, including equivalent premium pay, overtime and bonus opportunities;
- offer identical benefits (such as life insurance, health insurance, disability insurance, sick leave, vacation, educational benefits, pensions, etc.) and
- offer the same general work schedule and be at the same (or nearby) location.
What Do I Do If I Believe My Employer Has Violated FMLA Laws and Rules?
You may file a complaint with the U.S. Department of Labor’s Wage and Hour Division who is responsible for enforcing FMLA. Their contact number is 1-866-487-9243 and they will assist you in filing a complaint which will require you to name you and your employer and the details of your complaint and employer’s response. It is best to have all your documentation regarding notification to your employer (and vice-verse) documented on paper or email to the extent possible.
Other Common Questions about FMLA
Who Counts As a Family Member Under FMLA?
Parents, children, spouses and “in loco parentis” count as family members under FMLA. They are defined quite clearly:
- Parents: biological, adoptive, step or foster father or mothers or any individual who stood in loco parentis to the employee when the employee was a child. This term explicitly does not include in-laws.
- Children: sons or daughters who are biological, adopted, foster, step or a legal ward or child of a person in loco parentis who is under the age of 18 or at least 18 and who is “incapable of self-care because of a mental or physical disability” at the time FMLA leave would start
- In Loco Parentis: A person that provides day-to-day care or financial support for a child. Employees who are not in a legal or biological relationship with a a child are entitled to FMLA leave if they are effectively the guardians of that person and responsible for their day-to-day care. This includes homosexual partners, guardians or caretakers (even if not legally established).
Are there any exceptions or special rules for people in certain kinds of jobs?
Yes, certain types of employees have different eligibility rules for FMLA. For example, military members and airline employees have slightly different versions of the FMLA rules that apply to them. For more information about military family leave, please click here.
What If I Need Longer than 12 Weeks Within a 12 Month Period?
FMLA only protects your job on an unpaid basis for 12 weeks for a 12 month period, so if you do not return to your job within these time constraints, you will no longer have access to your same job when you return and you may be let go or fired.
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