Family Leave of Absence: Everything You Need to Know
Family leave of absence most often refers to the Family and Medical Leave Act (FMLA) that exists within the United States.7 min read
What Is a Family Leave of Absence?
Family leave of absence most often refers to the Family and Medical Leave Act (FMLA) that exists within the United States. Made law in 1993, the FMLA requires certain employers to provide up to 12 weeks of unpaid leave to eligible employees for applicable family and medical circumstances that arise. An employee's position is protected during this time, and the employer must allow the employee to continue working for the company once they return.
When you're experiencing a family crisis, either an emergency medical situation with yourself or a family member, it can be difficult to know what options you have to take time to care for yourself and your family. Unless you have taken a leave of absence before, you may not know what rights and protections exist for U.S. workers. Read through this guide to understand what a family leave of absence is and what legal protections exist.
Who Is Eligible?
An employee is eligible for FMLA protection if they have worked for their employer for at least one year and at least 1,250 hours over the past 12 months. The employer must have at least 50 employees working within 75 miles of the employee's workplace to be required to comply with FMLA regulations. Not all employers are required to meet the guidelines outlined in FMLA.
FMLA Covered Situations
Not all family medical situations are covered under the FMLA. It is important to clarify with your employer and/or an expert in the FMLA to ensure that your unique medical situation is covered. According to the FMLA, job protected leave is allowed for:
- Caring for the employee's child after birth, adoption, or foster care placement.
- Caring for an employee's own spouse, child, or parent with a serious medical condition.
- Recovering from a serious medical condition that makes it impossible for the employee to complete their job tasks.
- Caring for a family member who has been injured in active military duty.
- Other situations involving service members.
Notice and Certification
For employers to honor FMLA leave, they may require advanced notice of an employee's intent to take FMLA leave and/or medical certification. If an employee fails to meet these obligations, FMLA leave may be rejected. Therefore, it is important that employees follow established guidelines to ensure that their FMLA leave is covered.
If the reason for the FMLA leave is a foreseeable situation, most organizations require employees to give up to 30 days' notice in advance of their intention to take FMLA leave. This allows companies to make the appropriate accommodations for the employee's absence. Additionally, this could provide the employee time to train others who may be required to cover their responsibilities in their absence.
Some organizations require medical certification from a treating physician if the employee intends to use FMLA because of a serious health condition. The employer can require second and third medical opinions, as well as a checkup prior to returning to work. If an employer requires redundant health screenings as part of the medical certification process, that is at the employer's expense, not the employee taking the leave of absence.
Mandatory Versus Voluntary Leave
There are different types of leaves that exist that may impact your employment and what protections employees are entitled to. While most of this guide refers to mandatory leaves of absence, some leaves are voluntary. Mandatory leaves are protected by federal or state laws and include:
- Americans with Disabilities (ADA)
- Military Leave
- Jury Duty
However, not all companies are required to comply with these regulations. This is most often due to their small size and other factors, such as a remote workforce. Just because an employee is not protected under the FMLA does not mean that they cannot take a leave of absence. Many companies, especially smaller ones, offer unpaid leave to employees under certain circumstances. Additionally, companies with labor unions are very likely to offer employees unpaid leave time.
It is always worth asking an employer what their policy is regarding a leave of absence to see what is offered. Just remember that taking a voluntary leave of absence does not have the same job protections that FMLA leaves have.
Other types of leave may include:
- Parental leave for new parents to spend with their new babies.
- Maternity leave, though some states have strict laws regarding maternity leave.
- Paternity leave for new fathers.
- Vacation leave.
- Paid sick leave.
- Funeral bereavement leave after the death of a loved one.
- Religious observances leave.
Protections Offered by FMLA
There are three primary benefits, or protections, offered under the FMLA. First, employees get to keep working when they come back from their unpaid leave. While the position itself might be different, employees must be offered a comparable position to what they left. This is probably the most important and well-known benefit of the FMLA program.
Second, the employee stays on their employer's group health plan. The employer will continue to pay their share of employee's premiums. Employees must also make arrangements to pay their fair share. This is especially important for employees to maintain their medical insurance coverage during a time of health crisis. If an employer-based health insurance plan is allowed to lapse, employees may not be eligible to enroll in their health insurance plan until the next open enrollment time.
Third, employers are not allowed to use FMLA leave against employees who take it. This means that employees cannot be promoted or fired because they went on FMLA leave. Additionally, any bonuses accrued to the employee before taking FMLA leave must be honored.
How the FMLA Is Enforced
If an employer is suspected of violating the FMLA, the U.S. Department of Labor can investigate and resolve reported complaints of violations. This will involve an investigation into the company's policies and practices, as well as the specific violation. Depending on the outcome of the investigation, the company may be fined.
Additionally, covered employees who have had their rights violated can hire a lawyer to bring a civil action suit against an employer who has violated their rights protected by the FMLA. If the employee wins the civil action, they may receive lost wages and employment benefits, up to 12 weeks’ worth of compensation for what was lost.
Use of PTO and Sick Time
Some employers have an internal policy that requires employees to exhaust their accrued paid time off and vacation days before they can go on FMLA leave. The federal government does not mandate that an employer must use the FMLA first.
Since PTO time is paid, many employees are okay with using this time first so they miss out on less of their income while going through a stressful family time. However, some employees want to save their accrued PTO time for later. Employees should check with their company's human resources department to see what the official policy is.
Intermittent Leave Under the FMLA
FMLA does not require employees to take the 12 weeks of job-protected leave consecutively or on a full-time basis. If the employee needs to reduce their workload or take time off to go to medical appointments, this unpaid leave also is covered under the FMLA as intermittent leave. It should total the same number of hours as the 12 weeks of leave.
Employers have the ultimate decision to approve intermittent leave unless it is medically necessary. Many employers appreciate the opportunity to have their employees work, even if it is at a reduced capacity, as it enables them to have operations continue without having to try to train a new employee to do the task. This can also help with business continuity.
The Use of Leave Credits
The 12 weeks does not have to be taken at once. If an employee gives birth and has a covered medical emergency in the same year, FMLA provides them protection for up to 12 weeks. This means if the employee needs four weeks off in the beginning of the year and five weeks off at the end of the year, the leave is still covered.
Employees are only eligible for 12 weeks each year, though determining what the year looks like is up to the employer's discretion. For instance, the employer may go with a fiscal year or the anniversary of the employee's start date. Whatever the policy is, up to 12 weeks of unpaid leave is available each year for employees. As long as they do not go over the 12 weeks, employees will benefit from the protections outlined in the FMLA.
Filling Out a Leave of Absence Form
Before filling out a leave of absence form to give to your employer, ask your company's human resources department if there's a specific form that you need to use. Some companies want employees to request FMLA time using a specific form, so it is worth checking to see if your company already has a form to use. This can sometimes be found on the company's intranet designed for employees to have access to self-serve human resources docs they may need access to.
You can also use a free template found online from the Department of Labor. These templates are highly generic, so make sure that you go ahead and fill out all the relevant information and include what you feel has been left out. While you'll still have to discuss the details with your employer, a free template might be a good starting place for gathering the types of information that you'll be needing.
It is usually best to create a custom form for yourself if your company doesn't have one. You need to make sure to include the start and the end date of your leave, as well as the reason you need to take leave. It may be helpful to put your start date with the company and your relationship to the person that you'll be taking care of if it's not yourself. You can have an attorney look over your leave of absence form if you're unsure if it's legally compliant.
Make sure to keep copies and clear records of your leave of absence paperwork. Update your copy any time that you get a new signature or approval. If you end up with any questions or concerns, you can always refer back to your copy of the paperwork in the event of a dispute.
Try to have a single point of contact in the company process your request. If you work for a large corporation, try to work through your supervisor or your assigned human resources representative. This way you'll create a more streamlined process for handling your request. After all, you don't want different information being processed by different people.
If you need help with your family leave of absence, 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.