FMLA - Family Medical and Leave Act

FMLA - Overview, Qualification, Requirements, Filing Procedures

The Family Medical and Leave Act (FMLA) allows employees to balance their work and family life by taking reasonable unpaid leave for certain family and medical reasons. The law seeks to accomplish these purposes in a manner that accommodates the legitimate interests of employers and minimizes the potential for employment discrimination on the basis of gender, while promoting equal employment opportunity for men and women. This law provides certain employees with up to 12 workweeks of unpaid, job-protected leave a year, and requires group health benefits to be maintained during the leave as if employees continued to work instead of taking leave. While health benefits are maintained during the leave, other benefits [Effect of Leave on Other Benefits] may not be maintained during the FMLA leave.

The law became effective August 5, 1993. It only applies to certain employers employer coverage as defined by the law. In addition, only qualified employees [Employee Eligibility] are eligible for this benefit. Employers are required to post a notice informing employees of their rights under this law [Employer Required to Post Notice For Employees.]

Under this law, eligible employees who work for covered employers may take up to 12 works weeks of leave for qualifying events [Leave Entitlement] such as child birth/adoption or family illness. In order to qualify, an illness must amount to a serious health condition [Serious Health Condition] and affect the employee or his/her immediate family member. Certain limitation [Limitations on Leave] apply to leaves requested for newborns and/or adoptions. The law permits employers to require that employees provide medical certification [Employer may Require Medical Certification from Employee] to support the claim of serious illness. Only qualified health care providers [Qualified Health Care Provider] may issue acceptable certifications.

A qualifying employee who needs to take time off may request to take such time intermittently or to work a reduced schedule [Intermittent/Reduced Leave Schedule] in instances where such is necessary as opposed to taking all of the time at once. In addition, an employer or employee may require that paid leave be exhausted first before applying the time to an FMLA leave. This substitution of paid leave [Substitution of Paid leave] for FMLA time can ensure that some of the time that an employee takes off is paid for by the employer. Before approving the leave, an employer is permitted to require an employee to provide detailed and sufficient notice [Required notification to employer]  of the condition necessitating the request for leave.

An employer is required to restore an employee to an equivalent position [Job Restoration Upon Return from Leave] except for occupants of certain key positions ["Key Employee" Exception] where it would be very difficult for the employer to do so. An employer is required to notify an employee of his/her status as a key employee who may not be reinstated upon return.

The law makes it unlawful for employers to interfere with or punish employees [Unlawful Acts by Employers] for exercising their FMLA rights. The US Department of Labor is responsible for investigating violations and the enforcement of this Act [Enforcement and Complaint of Violations].

 FMLA Leave Entitlement

A covered employer must grant an eligible employee up to a total of 12 workweeks of unpaidleave in a 12 month period for one or more of the following reasons:

  • For the birth of a son or daughter, and to care for the newborn child;
  • For the placement with the employee of a child for adoption or foster care, and to care for the newly placed child;
  • To care for an immediate family member (spouse, child, or parent -- but not a parent "in-law") with a serious health condition; and
  • When the employee is unable to work because of a serious health condition.

 FMLA - Limitations On Leave for Newborns and Adoptions

Leave to care for a newborn child or for a newly placed child must conclude within 12 months after the birth or placement. Spouses employed by the same employer may be limited to a combined total of 12 work weeks of family leave for the following reasons:

  • Birth and care of a child;
  • For the placement of a child for adoption or foster care, and to care for the newly placed child; and,
  • To care for an employee's parent who has a serious health condition.

 FMLA - Intermittent/Reduced Schedule Leave

The FMLA permits employees to take leave on an intermittent basis or to work a reduced schedule under certain circumstances.

  • Intermittent/reduced schedule leave may be taken when medically necessary to care for a seriously ill family member, or because of the employee's serious health condition
  • Intermittent/reduced schedule leave may be taken to care for a newborn or newly placed adopted or foster care child only with the employer's approval.

Only the amount of leave actually taken while on intermittent/reduced schedule leave may be charged as FMLA leave. Employees may not be required to take more FMLA leave than necessary to address the circumstances that cause the need for leave.

Employees needing intermittent/reduced schedule leave for foreseeable medical treatment must work with their employers to schedule the leave so as not to unduly disrupt the employer's operations, subject to the approval of the employee's health care provider. In such cases, the employer may transfer the employee temporarily to an alternative job with equivalent pay and benefits that accommodates recurring periods of leave better than the employee's regular job.

 FMLA - Substitution of Paid Leave

Employees may choose to use, or employers may require the employee to use, accrued paid leave to cover some or all of the FMLA leave taken. Employees may choose, or employers may require, the substitution of accrued paid vacation or personal leave for any of the situations covered by FMLA. The substitution of accrued sick or family leave is limited by the employer's policies governing the use of such leave.

 FMLA - Serious Health Condition

"Serious health condition" means an illness, injury, impairment, or physical or mental condition that involves:

  • Any period of incapacity or treatment connected with inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical care facility; or
  • A period of incapacity requiring absence of more than three calendar days from work, school, or other regular daily activities that also involves continuing treatment by (or under the supervision of) a health care provider; or
  • Any period of incapacity due to pregnancy, or for prenatal care; or
  • Any period of incapacity (or treatment therefore) due to a chronic serious health condition (e.g., asthma, diabetes, epilepsy, etc.); or
  • A period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective (e.g., Alzheimer's, stroke, terminal diseases, etc.); or, any absences to receive multiple treatments (including any period of recovery therefrom) by, or on referral by, a health care provider for a condition that likely would result in incapacity of more than three consecutive days if left untreated (e.g., chemotherapy, physical therapy, dialysis, etc.).

 FMLA - Employer May Require Medical Certification From Employee

An employer may require that the need for leave for a serious health condition of the employee or the employee's immediate family member be supported by a certification issued by a health care provider. 

  • The employer must allow the employee at least 15 calendar days to obtain the medical certification.
  • An employer may, at its own expense, require the employee to obtain a second medical certification from a health care provider.
  • The employer may choose the health care provider for the second opinion, except that in most cases the employer may not regularly contract with or otherwise regularly use the services of the health care provider.
  • If the opinions of the employee's and the employer's designated health care providers differ, the employer may require the employee to obtain certification from a third health care provider, again at the employer's expense. This third opinion shall be final and binding. The third health care provider must be approved jointly by the employer and the employee.

 FMLA - Qualified Health Care Provider

Health care providers who may provide certification of a serious health condition include:

  • Doctors of medicine or osteopathy authorized to practice medicine or surgery (as appropriate) by the State in which the doctor practices;
  • Podiatrists, dentists, clinical psychologists, optometrists, and chiropractors (limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by X-ray to exist) authorized to practice in the State and performing within the scope of their practice under state law; nurse practitioners, nurse-midwives, and clinical social workers authorized to practice under State law and performing within the scope of their practice as defined under State law;
  • Christian Science practitioners listed with the First Church of Christ, Scientist in Boston, Massachusetts;
  • Any health care provider recognized by the employer or the employer's group health plan's benefits manager; and,
  • A health care provider listed above who practices in a country other than the United States and who is authorized to practice under the laws of that country.

 FMLA - Continuation of Health Benefits During Leave

A covered employer is required to maintain group health insurance coverage, including family coverage, for an employee on FMLA leave on the same terms as if the employee continued to work. Where appropriate, arrangements will need to be made for employees taking unpaid FMLA leave to pay their share of health insurance premiums. For example, if the group health plan involves co-payments by the employer and the employee, an employee on unpaid FMLA leave must make arrangements to pay his or her normal portion of the insurance premiums to maintain insurance coverage, as must the employer. Such payments may be made under any arrangement voluntarily agreed to by the employer and employee.

An employer's obligation to maintain health benefits under FMLA stops if and when an employee informs the employer of an intent not to return to work at the end of the leave period, or if the employee fails to return to work when the FMLA leave entitlement is exhausted. The employer's obligation also stops if the employee's premium payment is more than 30 days late and the employer has given the employee written notice at least 15 days in advance advising that coverage will cease if payment is not received. In some circumstances, the employer may recover premiums it paid to maintain health insurance coverage for an employee who fails to return to work from FMLA leave.

 FMLA - Effect of Leave on Other Benefits

Other benefits, including cash payments chosen by the employee instead of group health insurance coverage, need not be maintained during periods of unpaid FMLA leave. Certain types of earned benefits, such as seniority or paid leave, need not continue to accrue during periods of unpaid FMLA leave provided that such benefits do not accrue for employees on other types of unpaid leave. For other benefits, such as elected life insurance coverage, the employer and the employee may make arrangements to continue benefits during periods of unpaid FMLA leave. An employer may elect to continue such benefits to ensure that the employee will be eligible to be restored to the same benefits upon returning to work. At the conclusion of the leave, the employer may recover only the employee's share of premiums it paid to maintain other "non-health" benefits during unpaid FMLA leave.

 FMLA - Job Restoration Upon Return from Leave

Upon return from FMLA leave, an employee must be restored to his or her original job, or to an "equivalent" job, which means virtually identical to the original job in terms of pay, benefits, and other employment terms and conditions. In addition, an employee's use of FMLA leave cannot result in the loss of any employment benefit that the employee earned or was entitled to before using (but not necessarily during) FMLA leave.

 FMLA - "Key" Employee Exception

Under limited circumstances where restoration to employment will cause "substantial and grievous economic injury" to its operations, an employer may refuse to reinstate certain highly-paid, salaried "key" employees. In order to do so, the employer must notify the employee in writing of his/her status as a "key" employee (as defined by FMLA), the reasons for denying job restoration, and provide the employee a reasonable opportunity to return to work after so notifying the employee.

 FMLA - Required Notification to Employer

An employee who seeks FMLA leave may be required to provide:

  • 30-day advance notice of the need to take FMLA leave when the need is foreseeable;
  • Notice "as soon as practicable" when the need to take FMLA leave is not foreseeable ("as soon as practicable" generally means at least verbal notice to the employer within one or two business days of learning of the need to take FMLA leave);
  • Sufficient information for the employer to understand that the employee needs leave for FMLA-qualifying reasons (the employee need not mention FMLA when requesting leave to meet this requirement, but may only explain why the leave is needed); and,
  • Where the employer was not made aware that an employee was absent for FMLA reasons and the employee wants the leave counted as FMLA leave, timely notice (generally within two business days of returning to work) that leave was taken for an FMLA-qualifying reason.

 FMLA - Employer Required to Post Notice For Employees

Covered employers must take the following steps to provide information to employees about FMLA:

  • Post a notice approved by the Secretary of Labor (WH Publication 1420) explaining rights and responsibilities under FMLA;
  • Include information about employee rights and obligations under FMLA in employee handbooks or other written material, including Collective Bargaining Agreements (CBAs); or
  • If handbooks or other written material do not exist, provide general written guidance about employee rights and obligations under FMLA whenever an employee requests leave (a copy of Fact Sheet No. 28 will fulfill this requirement); and
  • Provide a written notice designating the leave as FMLA leave and detailing specific expectations and obligations of an employee who is exercising his/her FMLA entitlements.

This employer notice should be provided to the employee within one or two business days after receiving the employee's notice of need for leave and include the following:

  • That the leave will be counted against the employee's annual FMLA leave entitlement;
  • Any requirements for the employee to furnish medical certification and the consequences of failing to do so;
  • The employee's right to elect to use accrued paid leave for unpaid FMLA leave and whether the employer will require the use of paid leave, and the conditions related to using paid leave;
  • Any requirement for the employee to make co-premium payments for maintaining group health insurance and the arrangement for making such payments;
  • Any requirement to present a fitness-for-duty certification before being restored to his/her job;
  • Rights to job restoration upon return from leave;
  • Employee's potential liability for reimbursement of health insurance premiums paid by the employer during the leave if the employee fails to return to work after taking FMLA leave; and
  • Whether the employee qualifies as a "key" employee and the circumstances under which the employee may not be restored to his or her job following leave.

 FMLA - Unlawful Acts by Employer Regarding FMLA Rights

  • FMLA makes it unlawful for any employer to interfere with, restrain, or deny the exercise of any right provided by this law. It is also unlawful for an employer to discharge or discriminate against any individual for opposing any practice, or because of involvement in any proceeding, related to FMLA.
  • Employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions, or disciplinary actions; nor can FMLA leave be counted under "no fault" attendance policies.


Department of Labor FMLA Fact Sheet

Employment Law FAQs Employment Law Overview