1. FMLA Laws: Everything You Need to Know
2. FMLA Eligibility
3. Situations Covered by FMLA
4. Reinstatement to Your Position
5. Frequently Asked Questions
6. Scheduling and Notice Requirements
7. Alternative FMLA Leave Options
8. Types of State Family and Medical Leave Laws

FMLA Laws: Everything You Need to Know

FMLA laws are related to the Family and Medical Leave Act, a law passed by the government that guarantees that some employees can have up to 12 work weeks off each year for family and medical reasons. Along with it, there is no threat of losing your job or benefits. The purpose is to enable employees to provide the necessary care a new child needs, or to provide care for a member of the family with a serious health problem, time to recuperate from personal serious health problems, or to have time to meet problems that arise from a family member being in the military.

The FMLA allows employees to have the right to have leave up to 26 weeks when it becomes necessary to take care of a family member who, while on active duty, has become seriously injured or ill.

When returning to work, an employee has the right to be given the same or equivalent position they had before leaving. The law also requires that employers who meet the conditions of the law must continue to maintain the same employee’s health benefits as when they were working.

The FMLA laws only apply to employers who meet the requirements of the law. All state and Federal agencies must go by the FMLA laws, as well as all schools, public agencies, and local employers. The only private employers who are required to go by this law are those who have more than 50 employees. They must had had that many for a minimum of 20 weeks during the previous year or during the current year.

The leave period under FMLA is unpaid. This is one area under attack by critics.

FMLA Eligibility

In order to get FMLA benefits, the employee has to work for an employer who meets the requirements of employing more than 50 employees and they all must work within a 75-mile radius of the workplace. All public employees must be covered without regard for the minimum amount of employees. The employees who must be included are employees who:

  • Are on the payroll – whether paid or not.
  • Are commissioned.
  • Are on leave but are expected to return.

The FMLA law does not apply to employees who are laid off.

When employees who work at a large company’s office are qualified to receive FMLA benefits, those who work at a distant office may not be qualified unless there are more than 50 employees working within a 75-mile radius.

Employees who qualify for FMLA leave must have worked a minimum period of 12 months, and have worked at least 1,250 hours during that time. The 12 months of work do not need to be consecutive.

A break in employment from that employer of seven years or longer does not apply unless there is a written agreement or if it was caused by military service. The 12-month period can be calculated several ways:

  • Any 12-month period: a fiscal year or on an anniversary from when the employee started working for the company.
  • A 12-month period that starts from when the first FMLA leave starts.
  • A 12-month period that works backward from when the first FMLA leave starts.

The reference to hours of service means the actual hours worked by that employee. It does not include any time other than actually working, including sick days, holidays, vacations, or other time away from work – whether paid or not.

Situations Covered by FMLA

The primary purpose of the law is to give families a way to balance the demands of work, medical, and personal needs without risking the security of their job. Only specified reasons can justify the need to take FMLA leave. The reasons are:

  • Becoming a new parent, or a foster parent – leave can be taken within one year. The leave may be initiated prior to the arrival of the child for the purpose of preparing the home or for prenatal care. A smaller amount of time may be available if both parents work for the same company.
  • To recuperate from a health problem that is considered serious. This is further defined as requiring inpatient care, having a health condition that is chronic, or if the employee cannot perform their normal duties while under the care of a doctor.
  • A family member becomes seriously ill. This only applies to spouses, children, and parents. Other relatives, including siblings, as well as domestic partners, do not.
  • When a member of the family is called to active duty, or their active duty responsibilities create matters of urgency. In this case, children who are adults are also covered. Only specific situations apply, including being present at military events, getting counseling, making arrangements for child care, and to spend time with the military member before leaving on deployment or recovering from injuries (recuperation leave or temporary rest).

If other family members, including next of kin and other blood relatives, are seriously injured while on active duty in the military, or become ill, a 26-week leave period may be taken. Family leave of this type does not fall under the 12-month work requirement, but it can be taken on a per-member of the service, and per-injury basis. This means that it can only be taken once, unless another active duty family member becomes injured or ill, or if the same family member becomes injured again.

Once an employee notifies the employer of a need for FMLA leave, or when the employer knows that an employee has reasons that qualify for it, the employer must notify FMLA within the next five days. If the employer provides reasons for denial, or if there are questions about your eligibility for FMLA leave, you may need to talk with an employment lawyer who has experience with these issues.

Reinstatement to Your Position

When the FMLA leave is ended, the employer must put you in the same position you held before leave, or in an equivalent one. It must be equivalent in terms of benefits, pay, and working conditions, but certain rules do apply. If the position you were in previously no longer exists, then you no longer have the right to be given that same position. This only applies if the elimination of the job was not related to you going on leave.

Employers are not allowed to alter the rights given under the FMLA rules. They cannot use the fact that you took FMLA leave as a negative factor when considering you for promotions or possible terminations.

Employees who are considered “key” employees may be refused to be reinstated. Two reasons must apply if you are refused: (1) Being one of the top 10% of the most highly paid in the company, and (2) if restoring your position would cause serious economic harm to the company. If you fit into this category, the employer must warn you in advance that you are a key employee and that you may not be permitted to return.

Frequently Asked Questions

The FMLA law does not make any provision for paid leave. Employees can choose to use any paid leave they have accumulated as part of the leave period. Employers may require it but they must notify the employee of it. When taking paid leave during your FMLA leave, you must follow the company’s regular procedures for it.

Certain other kinds of leave may also count towards the 12-week annual allotment of FMLA leave. Before doing so, it must meet FMLA requirements and the employer must provide written notice to that effect.

Treatments that are ongoing and given by a health provider, and determined to be necessary for medical reasons may be counted as part of FMLA leave. Although not required, an employer may make a request for some kind of medical certification of your condition.  If you do not provide it, an employer may put an end to your leave. Once you do provide the certification, the employer may not ask you to return to work, even if it is only light duty or part-time.

If an employer has policies concerning outside work, it may be necessary to follow their restrictions. Otherwise, an employer is not allowed to prevent you from doing so while on leave. It does not apply, though, if the initial reason for taking leave is no longer there, or if you lied about the reason from the start.

A request for FMLA leave cannot be denied if your employer meets the qualifications, and if you as an employee meet them also. You must, however, follow the requirements of notifying and certifying it, as well as not having already used up your allotment for the 12-months.

If the employee becomes eligible for a bonus before leave, an employer cannot use the absence as a justification to deny it to the employee. The time during the FMLA leave is not required to be used toward earning a bonus, seniority, or accumulating any other bonus.

If there is a group plan at work that you are enrolled in, an employer is responsible to maintain those health benefits while on leave. If you choose not to go back to work at the same place, the employer may require reimbursement for the health care premiums provided during your absence. You cannot be required to repay the premiums if unable to return to work due to a serious health condition – whether a continuation of the same one or a new one. Other conditions out of your control also apply. If you violate FMLA laws, you could face a civil lawsuit or an administrative proceeding, and your supervisors may also be held responsible

Scheduling and Notice Requirements

When foreseeable, the FMLA requires that you provide a 30 days’ notice. This is usually possible in the case of a birth or adoption, or when a family member is facing surgery or some other kind of medical treatment that is planned. When it cannot be foreseen, notice should be given as soon as is possible.

Intermittent leave is also possible under some circumstances. If this is preferred, you may ask your employer to be transferred to another position that would permit this type of schedule more readily. The new position, however, must have the same pay and benefits.

An intermittent leave arrangement may be better in a case where physical therapy is needed, or treatments such as chemotherapy. In those cases, you may only need a few hours off out of a week. This type of leave may also work well in the case of an injured service member, a serious condition of a family member, or even in some cases of personal health problems. Other situations may also permit this kind of situation.

Employers are not required to provide intermittent leave in the case of a child birth or adoption. If they choose to agree, the choice is up to them.

Alternative FMLA Leave Options

If an employee works at a place where FMLA laws do not apply, they should discuss their options with their employer. In some cases, an employer may give unpaid time off, or it may be necessary to use vacation or sick time. In other cases, short-term or even long-term disability may be available through your employer.

Types of State Family and Medical Leave Laws

The laws that apply to leave may vary in different states. Some states have no specific laws, but if a company is large enough, the FMLA laws apply. Where the laws do apply, the most protective ones will apply in a qualifying situation.

Some states (about one dozen) have their own laws that are very close to the FMLA laws. In most cases, they provide similar benefits, but may also add some more.

Some states provide that employers treat pregnancy as a disability, giving them suitable time off when unable to work because of the pregnancy period and the childbirth. Most often, no time limit is set, but it most often is required to be suitable. In some cases, a maximum time limit is given. Some states require that the same leave be offered to adoptive parents as are given to biological parents.

A few states require that employers give parents time off to take care of different types of needs the family may have, such as taking children to dentists, doctors, school events, or even helping aging parents. These laws are often referred to as “small necessities” laws, and are given for activities that do not normally take much time but are deemed important by the employees.

If you need help in understanding the new FMLA laws and how it will affect you or your business, or if you feel your rights under the FMLA have been wrongly denied, you can post your legal need on the UpCounsel’s marketplace. UpCounsel only uses lawyers who have graduated in the top five percent of the top law schools such as Harvard Law and Yale Law, and who also have an average of at least 14 years of legal experience. Many of them have worked with or on behalf of such companies as Google, Menlo Ventures, and Airbnb.