Key Takeaways:

  • FMLA provides job-protected leave but does not mandate paid leave; however, employees may have access to paid benefits through employer policies, state laws, or short-term disability.
  • Some states offer paid family leave programs, which can supplement income during FMLA leave.
  • Employers may require employees to use accrued paid time off before unpaid FMLA leave begins.
  • Intermittent FMLA leave is an option for employees who need flexible time off for ongoing medical treatments or caregiving.
  • Employees must follow notification and documentation requirements to maintain their FMLA eligibility.
  • Federal employees have different rules regarding FMLA leave, which can include paid parental leave options.
  • Employers must maintain health benefits during FMLA leave, but employees may need to continue premium payments.
  • Legal protections prevent retaliation against employees taking FMLA leave.
  • UpCounsel provides access to legal assistance for employees seeking to understand their rights under FMLA.

Do You Get Paid for FMLA Leave? 

As an employee, you may have wondered “do you get paid for FMLA leave?” An FMLA qualifying leave is an unpaid leave, which means that you will not receive your regular compensation during your leave. Some employers have their own benefits policies that help employees financially while on FMLA leave. However, this is not federally mandated.

FMLA is a required benefit that you may have heard of when you first started working at your job. Unless you've needed to use it, it's possible that you don't really understand how FMLA works and what's covered. 

State Paid Family Leave Programs

While the Family and Medical Leave Act (FMLA) does not require employers to provide paid leave, some states have enacted their own paid family leave programs. These state programs provide wage replacement benefits for employees who need to take time off for qualifying family or medical reasons. States with paid family leave include:

  • California – Offers up to 8 weeks of paid leave at approximately 60-70% of wages.
  • New York – Provides up to 12 weeks of paid family leave at 67% of an employee’s average weekly wage.
  • New Jersey – Covers up to 12 weeks at 85% of wages, up to a set cap.
  • Rhode Island – Offers 5 weeks of partial wage replacement.
  • Washington, D.C. – Provides up to 12 weeks of paid family and medical leave.

Employees should check their state’s policies to determine eligibility and benefits.

What Is FMLA Leave?

FMLA leave stands for the Family & Medical Leave Act of 1993. It was created to ensure that employees would not lose their jobs if they needed time off to take care of their own medical needs or those of their family. It is a federally protected right for U.S. employees.

How Does FMLA Leave Work?

Some employers may require that you use vacation days, sick days, or other types of paid time off that you have accrued while on leave for up to 60 days. You can check with your company's human resources department to see what policies the company currently has in place regarding leave. Under the FMLA, it is okay for employers to require that you use all of your paid leave first before using FMLA time.

Some companies may have policies in place to offer cash payments for employees that opt out of the company health care program. These cash payments, unlike health benefits, do not have to continue during FMLA leave. Other benefits can be continued as long as you continue to pay for them.

Since FMLA leave doesn't qualify you to re-enroll in health insurance when you return to your regular job, be especially careful about canceling your health insurance. You may not be able to enroll again for health insurance until the next open enrollment period if you let the coverage lapse.

It is important to note that if you've earned a bonus before taking FMLA leave, you should still be able to receive that bonus. An employer is not allowed to use FMLA leave as a justification for denying you your bonus.

Can You Work While on FMLA Leave?

FMLA does not explicitly prohibit employees from working another job while on leave, but employers may enforce policies restricting outside employment during FMLA. Some key considerations include:

  • Employers may have conflict-of-interest policies that prohibit working for a competitor.
  • If an employee’s medical condition prevents them from performing their regular job but allows light-duty work elsewhere, the employer may challenge the FMLA claim.
  • Employers can require employees to provide medical certification confirming their inability to work.

To avoid complications, employees should review their company policies before engaging in any outside work while on FMLA leave.

What Does FMLA Cover?

FMLA provides employees covered by the law with up to 12 weeks of unpaid leave each year. This leave is job-protected, so when you return from leave, you'll still be employed. Additionally, health benefits must be continued for the employee and the employee's family. This means that the employer must pay its share of health care benefits even while you're out on leave.

You can use the 12 weeks of FMLA leave all at once or as needed throughout the year. Just because you use six weeks of it now, it does not mean that you cannot use the other weeks later in the year. FMLA was designed to help families and recognizes that unforeseen circumstances don't only happen once a year.

Which Employers Are Required to Offer FMLA?

Not all employers are legally required to offer FMLA. It only impacts certain employers that meet minimum requirements. Companies that must comply with FMLA regulations include:

  • Public agencies, such as government organizations and public schools.
  • Private sector companies with more than 50 employees for at least 20 weeks in the current year or last year.

Small employers are not required to comply with the FMLA. This includes companies with less than 50 employees. Check with these employers directly to see if they have any of their own unpaid leave policies in place.

What Employees Are Eligible?

While the FMLA only applies to certain employers, it only impacts certain employees, as well. To be eligible to take advantage of the FMLA unpaid leave program, you must work for an employer that is required to comply with the regulation. You must also work within 75 miles of a company location where there are at least 50 employees. This means that even if you work remotely for a large corporation, you may not be eligible.

Additionally, you must have worked for the employer for at least 12 months and at least 1,250 hours in the last year. If you just started working for a company, you may not be eligible for FMLA leave. This means that you'll have to work out arrangements directly with your employer and are not covered by FMLA protections.

FMLA for Federal Employees

While FMLA applies to both private and public sector employees, federal employees have unique rules regarding leave benefits.

  • Federal employees are entitled to 12 weeks of unpaid FMLA leave annually.
  • Certain federal employees are eligible for paid parental leave, covering the birth, adoption, or foster placement of a child.
  • The Office of Personnel Management (OPM) oversees FMLA administration for federal workers and ensures compliance with specific federal regulations.

Employees working for government agencies should review the OPM’s FMLA fact sheets to understand their specific rights.

When Can You Use FMLA Coverage?

Only certain circumstances qualify for FMLA coverage. You'll need approval to ensure that your specific family health crisis is covered. Here are some of the reasons that would be covered under the FMLA regulations:

  • Employee is not able to go to work because of a serious medical situation that impacts the employee.
  • Employee needs to provide care for an immediate family member with a serious medical condition, which does not include in-laws.
  • Employee can have up to 60 work days of FMLA protection after the birth or adoption of a child to care for the newborn.
  • Employees who recently gave birth, via regular delivery or Cesarean.
  • Employee's family member called to active duty in the National Guard or Reserve for a last minute, urgent situation.

What Limitations and Restrictions Impact FMLA Leave?

While you're out on FMLA, you'll have to provide medical certification. If you fail to do so or lie about the reasons why you need to take FMLA leave, the FMLA protections will no longer cover you. Make sure to comply with any requests in a timely manner, so your unpaid leave benefits from the full protections offered by the federal law.

Additionally, you may have restrictions in place on whether or not you can have outside employment during your time on FMLA leave. You would need to check with your employer about their policies. Just remember, while there might be a policy in place regarding outside employment, the employer cannot otherwise restrict your outside actions during FMLA leave.

Employer Responsibilities Under FMLA

Employers covered by FMLA must meet the following obligations:

  • Provide written notice explaining FMLA rights and responsibilities to employees.
  • Maintain employee health benefits under the same conditions as if they were actively working.
  • Restore the employee to the same or an equivalent job position upon return from FMLA leave.
  • Prohibit retaliation against employees for taking FMLA leave.

Failure to meet these responsibilities may result in legal action, and employees have the right to file a complaint with the U.S. Department of Labor’s Wage and Hour Division.

How to Determine the Applicable 12-Month Period for FMLA Leave

Your employer will determine when the 12-month period starts and ends for FMLA leave. This should be a consistent policy in place for all employees across the workplace. Some common ways to determine this include:

  • Employer selected year
  • Fiscal year
  • Anniversary of employee hiring
  • Start of first FMLA leave
  • Backward from an employee's first FMLA leave

Can an Employer Require That You Return From FMLA Leave Early?

If you've gone ahead and taken care of the relevant paperwork, provided appropriate medical documentation in a timely manner, and meet the criteria for protection under the FMLA, your employer cannot require you to come back to work. This is true even if they ask you to come back to work on a part-time basis. However, if you fail to meet your obligations or the criteria for FMLA protection, this may not be the case.

Can Employers Refuse Your Request for FMLA Leave?

If your employer is required to comply with the FMLA, they cannot deny your request for FMLA as long as you comply with the employer notice and medical certification requirements outlined in the FMLA. Additionally, you must not have already used up all of your FMLA leave time in the past 12 months. If you have, the FMLA protections do not apply.

Can You Lose Your Job by Taking FMLA Leave?

The purpose of the FMLA is to protect your job during a necessary leave. This means that you will still have a job when you return from your medical leave and that employers cannot use the fact that you took an unpaid medical leave to make employment decisions, such as whether to promote or fire you. Employers cannot legally retaliate against you if you report a violation of these rules.

In some instances, employers can deny reinstatement if you worked in a highly paid, salaried role where you were identified as a key employee that the business couldn't operate without. However, you should ask your employer about this rare instance before you take your FMLA leave, so you fully understand the process.

It's important to note that the employer has to offer you a job when you return from FMLA leave, but not necessarily your old job. The FMLA regulations state that the employee must be given an opportunity equivalent to their original job, especially in terms of compensation, benefits, and other factors. If you were to take FMLA leave from a management role, you should be offered another management role upon your return.

If you find yourself in a situation where you need to take intermittent FMLA leave through the year, your employer may require you to transfer to another available position within the company. This happens when the business has difficulty operating with an employee that's only available intermittently. While FMLA protects your employment status, it does recognize that some roles may be better suited for intermittent FMLA needs.

FMLA Retaliation Protections

FMLA protects employees from retaliation, which includes:

  • Wrongful termination – Employers cannot fire employees solely for taking FMLA leave.
  • Demotion or pay cuts – Employees must return to the same or an equivalent position with the same pay and benefits.
  • Negative performance evaluations – Employers cannot penalize employees for using FMLA leave.

If an employee believes their employer violated FMLA protections, they can file a complaint with the Department of Labor or seek legal counsel to explore their options.

Can Employers Deduct Pay for Intermittent FMLA Hours Used?

Whether your employer will deduct pay for intermittent FMLA hours you use, for doctor's appointments, etc., will largely depend on the employer, your compensation structure, and what policies your employer has in place. Under the FMLA, the employer can deduct payment for unworked hours for salaried employees who use FMLA hours. For hourly employees, the employer will not be able to deduct compensation for intermittent FMLA hours that you use, since you won't be clocking into a time clock to record those hours.

However, many employers recognize the inconsistencies in a salaried employee's schedule and may opt to not deduct anything from your pay to accommodate for intermittent FMLA leave. This is because as a salaried employee, you may work more hours one week than the next. The employer may have a policy in place that differentiates between full time and intermittent FMLA leave, where employees take only a few hours at a time.

What Is Short-Term Disability?

Some companies have a short-term disability benefit that they enroll employees in. If you have access to a short-term disability plan, this may enable some of your unpaid FMLA leave to be paid, even if it's only on a part time basis. For most companies, you must work six months before short-term disability benefits kick in.

Can You Use Both FMLA and Short-Term Disability at the Same Time?

Yes, you can use FMLA leave and your short-term disability plan at the same time. FMLA is designed to protect your employment status, while short-term disability provides you with some of your lost income. This means that you can use these benefits simultaneously.

Each company processes short-term disability differently, so it is important that you discuss your options with your employer. There may be a waiting period before you can make a short-term disability claim. Employers may require that you use your accrued PTO first.

Frequently Asked Questions

1. Does FMLA guarantee paid leave? No, FMLA only guarantees unpaid, job-protected leave. However, employees may qualify for paid leave through state programs, employer policies, or short-term disability.

2. Can my employer require me to use paid time off before FMLA leave? Yes, employers can require employees to use accrued vacation, sick leave, or PTO before transitioning to unpaid FMLA leave.

3. What happens to my health insurance while on FMLA leave? Employers must continue providing health insurance during FMLA leave, but employees are responsible for maintaining their premium payments.

4. Can I take FMLA leave intermittently? Yes, FMLA allows for intermittent leave when medically necessary, such as for ongoing treatments or caregiving responsibilities.

5. What should I do if my employer denies my FMLA request? If you meet FMLA eligibility criteria and your employer unlawfully denies your request, you can file a complaint with the Department of Labor or consult a lawyer for legal advice.

If you need help with understanding your rights under FMLA, you can post your legal need on UpCounsel’s marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.