Absolutely Everything You Need to Know About Using FMLA

The Family Medical Leave Act 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, and yet determining your own FMLA eligibility can still feel tricky.

FMLA protects employees rights 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 on taking an unpaid leave in order to care for 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, enacted in 1993, 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 condition (including having a new baby). It does not typically include bereavement leave, but one of the most common uses of family and medical leave 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 U.S. private employers do not offer paid parental leave 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 caretaking. Though it is not technically a serious health condition for you to give birth, in the case of 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 care, and legal guardians. In fact, there is a growing movement to change the way we refer to this leave to “parental leave,” or the yet-more inclusive “caregiver leave.”

Who is eligible for FMLA?

An eligible employee is one who: 

1. Works for a covered employe
2. Has worked for the employer for at least 12 month (these do not need to be consecutive months)
3. Has at least 1,250 hours of service for the employer during the 12 month period immediately preceding the leave
4. Works at a location where the employer has at least 50 employees within 75 miles.

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), your employee eligibility is covered under FMLA. The law defines a "covered employer" as: 

• A private-sector company that had 50 or more employees in 20 or more workweeks this calendar year or the previous calendar year
• Public agencies, such as local, state, or federal government agencies, with one or more employees
• Public or private elementary or secondary schools with one or more employees

However, if you work for a private company, that company is exempt from having to provide FMLA-based leave if it employs 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 a generalized caregiver leave 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 or were hired while you were pregnant, you do not technically qualify for family and medical leave. There is a minimum tenure requirement of both having worked for at least one year prior to taking family leave, 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 50 employees within a 75 mile radius of where you physically work. If it does not, and the employees are spread thin over a larger distance, that employer is not required to offer you FMLA leave or a guarantee of the continuation of your employment status post-leave.

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 a very important leave entitlement for 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 your employee rights include the ability to 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 least three consecutive days and requires ongoing medical attention. Some examples:

• 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 an employee 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)
• When a child is placed with you for foster care or adoption
• When your child, spouse, or parent is a military member on active duty
• Caring for a servicemember who is your spouse, child, parent, or next of kin that has a serious injury or illness

How do I request FMLA time off / leave?

FMLA law requires that you provide your employer with a designation 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 take your short-term disability leave.

You don’t technically need to frame your request for time off as “FMLA” based, but it can’t hurt. Even if you don't request FMLA leave specifically, you still need to give your employer enough information that she would understand that this time off should be counted as such (e.g. that you cannot work because of either 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 employment eligibility requirements for FMLA that you will automatically be allowed to take job-protected leave under this policy. With that in mind, the process after requesting FMLA will unfold as such: 

• After you request time off under FMLA, your employer must tell you within five 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, or 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 employee rights or benefits regarding payment during your leave, whether you are required to provide a medical certification from your doctor or healthcare provider, whether you are required to first use your paid leave allotment, and whether you will be able to keep your healthcare and other benefits. 
• They must also affirm that you will be able to return to your job at the end of their intermittent leave.
• If you are not eligible for FMLA time off, employers must provide at least one reason stating why you are not eligible (e.g. you have only worked 1,000 hours in the past six 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), and your employer requests a medical certification from you, and 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 healthcare 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 an employee 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 eligibility.

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 seven 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. They may even request a third opinion in the case of a conflicting first and second opinion (again, at their expense). Certain employers may also want to receive an updated certification and 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-versa) documented on paper or email to the extent possible. The following information will be useful in filing your complaint: 

• Your name
• Your address and phone number (how you can be contacted
• The name of the company where you work or worked
• Location of the company (this may be different than the actual job site where you worked)
• Phone number of the company
• Manager or owner’s name
• The circumstances of your FMLA request and your employer’s response

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 care 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: son or daughter who is 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 child are entitled to FMLA unpaid leave if they are effectively the guardians of that person and responsible for their day-to-day care. This includes same-sex marriage and partnerships, 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: Both have slightly different versions of the FMLA rules that apply to them. For military caregivers, leave entitlements are categorized into two sections — Military Caregiver Leave and Qualifying Exigency Leave. To be an eligible employee for the first category, you must have an active duty family member be deployed to a foreign country. Military Caregiver Leave, on the other hand, impacts those who need to provide care to an ill or injured family member who is in the military. To learn more about this area of FMLA coverage, click here.
• Certain "key employees":  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. These employees may not be guaranteed reinstatement to their positions following FMLA leave.
• Teachers: Special rules apply to employees of local education agencies. Generally, these rules apply when you need intermittent leave or when you need leave near the end of a school term.

What if I need longer than 12 weeks within a 12 month period?

FMLA only protects eligible employees’ job on an unpaid basis for 12 weeks for a 12-month, calendar-year period. 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 your employment status may not be protected (meaning you could be laid off or fired).

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