Family and Medical Leave Act of 1993

The Family and Medical Leave Act of 1993 (FMLA) entitles employees who are eligible up to 12 weeks of leave for specific medical and family reasons. FMLA is enforced by the Wage and Hour Division within the Employment Standards Administration under United States Department of Labor.

The advantages of FMLA are:

  • Employment protection while on leave. 
  • Ability to take care of personal health concerns.
  • Available time off to care for a newborn or newly adopted child.
  • Option to care for an ill spouse or family member.

The main disadvantage of FMLA is that it is unpaid. Employees commonly do not take advantage of FMLA because it isn't financially possible. However,  it does provide some form of job security for employees where once there was none.

The FMLA legislation was drafted under President Reagan but a veto by President George H.W. Bush delayed its passing until the Clinton Administration.

To date, the FMLA is the only piece of federal legislation that is designed to address the responsibilities of employees in the workplace and at home.

Before the passage of FMLA, employees in need of time off to care for themselves, a spouse, or family member due to serious illness or other needs for a period of time were at risk of losing their job. Nothing prevented an employer from terminating an employee for taking time off. 

Purpose of FMLA

The goals of FMLA are to:

  • Provide a measure of stability and economic security for families
  • Minimize employment discrimination on the basis of gender
  • Allow employees access to FMLA for a number of family or medical reasons.
  • Promote equal opportunity employment for both genders.

FMLA is available to all public agencies including schools at the local, state and federal level. Private-sector organizations who have 50 or more employees working 20 or more workweeks in the current or previous year must adhere to FMLA. Joint and successors of covered employers are also included in this category.

Eligibility for FMLA and Rights

To be eligible for FMLA benefits an employee must:

  • Be a resident of the United States or in a US territory or possession that has at least 50 people employed by the employer.
  • Be a regular employee of an employer for 12 months in total who has worked a minimum of 1250 hours. 

 -OR -

  • Be a part time employee including halftime 
  • More permanent, probationary, trainee, and time-limited must have worked at least 1040 in pay status for 12 months. 

Many employees are not aware of all of the rights available to them with regard to FMLA.  In addition to the benefits of FMLA, employees may be eligible for benefits granted under state law.

Common Reasons for Employees to Use FMLA

FMLA may be granted to an eligible employee for reasons including, but not limited to:

  • The birth and care of a new baby
  • Caring for a recently adopted or placed foster child
  • Caring for a seriously ill child, spouse, or parent
  • Taking leave due to a serious personal health condition
  • An urgent need, illness, or injury related to a spouse, child, or parent's call to active duty or active duty status for the National Guard or Reserves or the Armed Forces.
  • Taking time off as a family member related to a member of the Armed Services, National Guard or Reserves.
  • Caring for that service member in the event of serious illness or injury (for up to 26 workweeks in a single 12-month span) 

Note: Spouses of service members are limited to 12 weeks for leave related to the birth and care of a new child or caring for an adopted or fostered child. This also applies to caring for a parent.  26 weeks are given if also caring for an injured or ill service member at that time.

Job Status Upon Return

Once the employee returns from FMLA leave, they must return to their original position or be moved into a position equal to the one they left with the same pay.

An employer cannot reduce or take away any benefits that the employee earned or was entitled to prior to taking FMLA leave. If the employer has a "no fault" attendance policy, the use of FMLA cannot be counted towards an employees attendance record.

Likewise, an employee has no right to expect, nor is he or she entitled to receive employment beyond being restored to their original or a similar position with the same amount of pay. Nor is an employee entitled to any other benefits or conditions of employment other than what they would have received prior to taking FMLA leave.

Intermittent FMLA Leave

Employees have the option of taking intermittent FMLA leave.  Instead of taking the leave off in a large chunk such as 12 weeks, employees can separate the time they have into separate blocks or have what is known as a reduced leave schedule. This reduces the normal weekly or daily work schedule an employee has. Taking intermittent leave still requires a qualifying reason.

Common reasons include:

  • Taking care of a personal and serious illness or health condition
  • Caring for a spouse, parent, or child with a serious illness or condition
  • A time where urgent time away is required related to a spouse, child, or parent who is serving in active duty or notified that they will be serving
  • Taking time away or on a reduced schedule for the birth and care of a child or care of an adopted or foster child

No limits exist that dictate the lowest amount of FMLA leave that may be taken. An employer is not allowed to set a minimum time increment; it has to be one hour at a time.

If time is being taken for a planned medical procedure or treatment, employees should schedule the time to interfere as little with their employer's operations as is feasible.

Notes: With leave planned for medical treatment, employers can require an employee to transfer to another position on a temporary basis. The position must have the same pay and benefits as the last position, but it may be more accommodating of the periods of leave that are taken. 

FMLA leave taken for the birth and care of a child or caring for a newly adopted or fostered child on an intermittent basis must be approved by the employer.


Institutions or agencies have specific rules that apply to employees needing to take intermittent FMLA for a qualifying reason during the school year or leave at end of a school year or term.

Taking FMLA Leave for Adult Children

Opting to use FMLA leave for the purpose of caring for an adult child is not permitted in general. Adult children are defined as those over 18 years of age.

Exceptions to this rule include employees who are responsible for a child over 18 as defined above and the child is unable to care for themselves due to physical or mental disability, using FMLA leave is permissible. Under FMLA, an adult child who is unable to care for themselves is considered a son or daughter. The adult child must also have a serious health condition that necessitates the employee to care for them. 

Such exceptions include:

  • Biological children
  • Fostered children
  • Adopted children
  • Legal wards
  • Children for whom the employee has acted in the place of a parent 

Health Insurance Requirements

While on leave, the employee taking FMLA will still be covered by the employer group health plan, and they will make an arrangement to continue to pay the regular amount for their share of the monthly premium. 

The employer covered by FMLA is similarly required to keep the group health insurance coverage for the employee if they were covered under the plan while they were working. The coverage given on leave must be the same as if the employee still worked.

Certification of FMLA Leave

When FMLA is a foreseen eventuality, 30 days of advance notice is required. If FMLA is not a foreseen decision, the employee should give their employer all necessary information as soon as possible, including the reason under which the leave is being taken.

Barring any extenuating circumstances, the employee should follow the employer's regular policies and procedures for requesting leave.  If the reason for taking leave is already specified in the FMLA, the employee does not need to mention the FMLA or what their rights are during the first leave request. But the employee is required to give enough information to their employer about the situation in order for a decision to be made as to whether FMLA applies.

If an employee plans to take FMLA for a reason that qualifies under the act and an employer has approved leave for it in the past, an employee needs to reference the specific FMLA reason or why leave is needed.

The Secretary of Labor approves notices that list the rights and responsibilities that apply to the FMLA. Employers must post one of these notices. If a notice isn't posted, the employer is subject to a $110 fine for each instance of non-compliance.

This notice must also be included in the employee handbook proved by the employer or given separately to every new employee. 

Once an employee requests leave, or the employer becomes aware that leave may be taken for a reason qualifying for FMLA,  the employer should tell the employer whether or not they are eligible to take leave under FMLA and provide them with the rights and responsibilities under the law.

When the employer has sufficient information to determine that the reason for leave qualifies under FMLA, they should notify the employee that their leave request qualifies for FMLA and will be documented as such.

The employer can require the submission supporting certification documentation from a health provider if the leave is being taken for the purpose of serious personal illness of the employee or that of a family member.

Employees who receive salaries as executives, administrators, or professionals are exempt from overtime and minimum wage requirements under FLSA. These exempt employees must still meet the eligibility requirements set out by the FMLA in order to take leave. However, using unpaid FMLA leave will not change the employee's exemption under the Fair Labor Standards Act (FLSA).

Changes to the FMLA since 1993

When FMLA passed into law, military service members, including those in the Coast Guard, Reserves, and the Armed Forces did not have the protections currently afforded to them in the FMLA.  Expanded protections entered into law with amendments from the 2010 National Defense Authorization Act (NDAA). 

These protections included covering active duty, a call to this status, or an emergent need related to it. Military caregivers, also known as family members of service members, also received extended protections under the NDAA. They received 26 weeks in 12 months to take care of a service member that has a serious injury or illness.

The 2010 NDAA Amendments were preceded by the passing of the Military Expansion for Injured Service Members Act signed by President Bush in 2008. It was a part of the 2008 NDAA. But later that year in November 2008, the Department of Labor clarified the FMLA regulations in the Military Expansion Act that also made it difficult for employees to take necessary FMLA leave.

The act and later amendments for military families represent the first expansion to the FMLA since it became law in 1993.

Under the Obama Administration in 2010, the Department of Labor clarified and expanded the definition of son or daughter so that it includes LGBT parents who do not have a biological or legal relationship to the child they are raising. 

The administration announced 4 years later that it intended to establish a definition of spouse that is inclusive of LGBT relationships.

As of June 2015, same-sex spouses are recognized under FMLA per a ruling from the Supreme Court.

The ability to understand the rights under this legislation allows employees to smoothly balance work needs with those of family without needing to worry about job security.

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