Updated: Jun 8, 2021
"The FMLA" is usually the first thing that comes to mind when you want to stay home to care for your baby. Which begs the question, "What is FMLA?" and "What are the FMLA rules?" This article provides FMLA guidelines to assist you so your family can come first. This article covers:
When you can take FMLA
How you can take FMLA
If you are eligible for FMLA
Your employer's obligations under FMLA
Your obligations under FMLA
Protections from discrimination for taking FMLA
Job protection after FMLA
Intermittent FMLA or reduced schedule FMLA
Payment during FMLA
The Family and Medical Leave Act
The FMLA is a federal law giving eligible employees the right to a 12 week leave of absence to care for a new child, to attend to a personal or family medical situation, or to support a close family member in the military. The FMLA also secures that this leave of absence will not result in job loss. The FMLA applies in every State.
Some states like California have additional protections to supplement the FMLA. If you are a California resident interested in your rights as a working parent, please click here.
Grounds for taking FMLA Leave
The FMLA gives you a 12 week leave of absence for any of the following reasons:
The birth of a child
You have one year after the birth of the child to take this leave. When the baby turns one, the leave expires. Both men and women are entitled to this leave.
You have a serious health condition
A serious health condition is an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a health care provider.
Examples include; incapacity or complications related to pregnancy or prenatal care (pregnancy itself is not a serious health condition); asthma, diabetes, epilepsy, Alzheimer's, stroke, cancer, migraines, and other conditions that cause extended incapacity and inability to work. Depression or substance abuse can qualify as long as there is a diagnosis and continuing treatment.
The following conditions are excluded: a cold, the flu, ear aches, upset stomach, minor ulcers, headaches, plastic surgery, dental care, and others. If the cold or flu results in incapacity for more than three days and you receive continuing treatment, it may be covered.
You are only entitled to take this leave if you are unable to work. If you can still work but you have physical limitations, you should request accommodations under the ADA instead of a leave of absence. Your employer is under a duty to work with you to figure out which accommodations are reasonable for your particular condition to make sure an accommodation can be agreed upon that works for you as well as the employer.
Your child, spouse or parent has a serious health condition
The health conditions are the same as above.
A spouse includes same-sex or common law marriage.
A child includes biological, adopted, foster, or step child.
A parent includes biological and adoptive parents, but excludes in-laws.
Your family member must need active assistance, supervision or care.
The placement of a child for adoption or foster care
This includes counseling sessions, court appearances, attorney and doctor consultations. The leave must be concluded within one year after placement.
A qualifying exigency because your spouse, child or parent is on active duty in the Armed Forces
This includes deployment, military events such as ceremonies, arranging childcare or enrolling children in a new school or daycare facility, attending counseling sessions or meetings with school or daycare staff, time taken to make financial or legal arrangements to address the military member's absence, including obtaining benefits, family counseling, reintegration briefings, arrival events, funeral arrangements.If the military member returns home for rest and recuperation, 15 days can be taken to spend time with the member.
Military caregiver leave
Families of wounded members of the Armed Forces may take up to 26 weeks of protected unpaid leave during a 12-month period.
Not everyone is eligible for FMLA Leave. Only employees, not contractors are eligible.
If you are asking yourself, "Am I eligible for FMLA?" you'll need to answer math test.
Answer the following three questions:
1. Do you work for a company with 50 or more employees within 75 miles of your jobsite?
2. Have you worked for this company for at least one year as of the start date of your leave?
3. Have you worked for more than 1250 hours (about 24 hrs/week) as of the start date of your leave?
If you answered yes to all three, you are eligible for FMLA Leave.
Intermittent FMLA Leave
The FMLA leave may be taken in smaller increments, such as intermittent or reduced schedule leaves. A reduced leave schedule is a change in the employee's schedule for a period of time, usually from full-time to part-time. This type of leave can only be taken if you have a serious medical condition, or to care for your spouse, child or parent suffering from a serious health conditions. If your employer agrees, this type of leave can also be taken to care for a newborn child or to care for a newly placed adopted or foster child. When you are on intermittent or reduced schedule FMLA leave, you have to be able to do your job while you are at work.
Your Employer's Obligations under FMLA Leave
If you meet the requirements for a leave, leave must be granted. Your employer may not deny your leave because of business necessity or undue hardship. Your employer may not insist you accept a modified or restructured job in lieu of granting leave.
Employers have a duty to respond to your questions about FMLA rights.
Your Obligations under FMLA Leave
You should not wait until you go into labor to ask for FMLA leave in between contractions. There is a process to be approved for FMLA leave and you do have some obligations under this process.
You have to give reasonable notice of your need to take leave. If the leave is foreseeable, like a birth or a planned medical procedure, you have to give at least 30 days notice. You have to tell your employer the anticipated time and duration of the leave. If 30 days notice is not possible, you have to give notice as soon as practicable. If you don't give reasonable notice, your leave may be delayed.
Your employer may request you to provide a doctor's note to confirm your or your family member's serious health condition. At the conclusion of your leave, your employer my request you to provide a doctor's note clearing you to return to work.
Pay During FMLA Leave
Short answer, you are not paid during FMLA leave. Some employers may have a paid leave policy, so make sure to always ask. If you have accused paid leave, PTO, or sick leave, you may substitute this leave for FMLA leave, or the employer may require it.
Your employer needs to keep you on the health care plan on the same basis as an active employee.
Your FMLA absence may not be counted against your pension or retirement plans.
Many states have set up funds to offset the wage loss during an unpaid leave. If you work in California, click here to learn more about California benefits.
Job Protection Under FMLA
When you return from FMLA leave, you are entitled to be reinstated to the same or an equivalent position. An equivalent position must be virtually identical to the prior position in terms of pay, benefits, and working conditions, and involve substantially similar duties and responsibilities.
You will only be reinstated if you are able to return to work. If you are unable to return to work, you may be putting your job at risk. If you are able to work but you need accommodations, you can request accommodations under the ADA.
There is an exception to reinstatement rules for key employees, but this is rare.
Discrimination for taking FMLA
Employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions, including termination.
The employer may also not retaliate against you for opposing unlawful practices, such as objecting to your employer's interference with your FMLA rights.
Your FMLA absences may not be counted if an absenteeism discipline issue arises.
If you have been terminated for taking FMLA leave, you should consult with a lawyer.
DISCLAIMER - This blog is for educational purposes and to give general information and a general understanding of the laws relating to employment law. It is not intended to provide specific legal advice, nor should you use it for that purpose. By using this blog you understand there is no attorney client relationship between you and the Mamattorney or Gruenberg Law and you should not use this blog as a substitute for competent legal advice from a licensed attorney in your state. We don't know anything about your particular situation, and the law has many exceptions. If you have a dispute with your employer, you need to consult with an employment lawyer.