FMLA Requirements

The FMLA requirements are a set of provisions guaranteed by the Family and Medical Leave Act (FMLA), which was made law in 1993 to help stem an increasing national concern about the balance between work and family responsibilities. Drafted to protect employees from losing their jobs after taking time off to deal with unavoidable personal and family matters, the FMLA requirements give eligible employees the right to take time off work, without pay, for certain health conditions and care-giving responsibilities.

Not every company, employee, or reason for leave is protected by the FMLA, but many are, and since its inception the law has been expanded to benefit more people. In 2008 and 2010 the FMLA was amended by the National Defense Authorization Act (NDAA), which widened the FMLA’s reach by granting leave to employees with family serving in the military. Likewise, in January 2009 and February 2013, new FMLA regulations issued by the U.S. Department of Labor (DOL) became effective, changing the way employers must act in order to comply with FMLA requirements.

Such amendments, while beneficial to workers, have been especially trying for employers because the FMLA is amongst the most complex laws for them to administer. Federal regulations only serve to complicate it even more, as do workers’ compensation laws, state family and medical leave laws, the Americans with Disabilities Act (ADA), and whatever in-house employee-leave policy a company may have. Because of these various requirements, employers can often feel caught within a legal bind from which there is no relief.

FMLA Eligibility Requirements—Who is Covered?

Under the FMLA, eligible employees are allowed to take 12 work weeks of unpaid leave during any 12-month period with the full right to return to the same or equivalent job at the end of their leave. Employees are also guaranteed the same health benefits that they would receive were they not on leave. However, FMLA leave is not available to every employee. To be eligible, the employee must:

  • Have worked at the company for 12 months or more.
  • Have worked at least 1,250 hours during that time period.
  • Work for an employer who reaches the minimum FMLA compliance requirement—employing 50 or more workers within a 75-mile radius of the worksite every day for the previous calendar year—or work for a public agency, which includes all Federal, State, and local government employers, along with schools.

Additionally, the following stipulations also apply:

  • The employee's 12 months of employment need not be consecutive, but breaks of service cannot be of seven or more years in length unless the break was due to an employee's military obligations or written agreement.
  • The employee’s hours of service cannot include holidays, vacations, sick days, or any other time when an employee was away from work, whether unpaid or paid.
  • The hours of service must be met within the 12-month period prior to the start of leave.
  • The 50 worker/75-mile radius stipulation does not apply if the employee works at a smaller branch of a larger company. This ratio must be met by the physical area in which the employee works, not the total staff of the organization.

FMLA Eligibility Leave—What is Covered?

The FMLA is meant to allow families to balance work and personal or medical needs without having to fear for their job security. Employees can request FMLA assistance for any of the following reasons:

  • Preparing for childbirth
  • Caring for a newborn child
  • Foster care placement or child adoption
  • Caring for a spouse, child, or parent with a serious medical problem
  • Caring for one’s own serious medical problem
  • Transitioning into active military duty, either for oneself or one’s spouse

As defined under the FMLA, a "serious health condition" means any injury, illness, impairment, or mental or physical condition that requires either inpatient care or continuing treatment by a health care provider. Additionally, under the regulations for determining what constitutes appropriate FMLA-related leave, only an employee’s spouse, children, or parents are considered family members. It also should be noted that medical certification may be needed in some instances where serious medical problems may hinder an employee from performing their essential job functions. Because reasons for requesting time off through FMLA provisions vary, checking that your reason is acceptable to your employer’s leave-request policies is important. Otherwise, your request may be turned down.

FMLA Eligibility Notice

Employers are required to give FMLA eligibility notice within five business days of an FMLA leave request being made or of qualifying reasons for FMLA leave becoming known.

Alternative FMLA Leave Options

If an employee needs medical leave but does not meet the qualifications for FMLA leave, there may still be other options. For example, some employers may be willing to give unpaid leave if it does not conflict with the needs of their business. In other cases, an employee may use vacation or sick time to take their leave, or they may consider taking advantage of short- or long-term disability if their employer offers it. Generally, your manager or Human Resources department will be able to provide information on their policy pertaining to other leave options. If, after speaking with your manager or HR department, you still need assistance determining your FMLA eligibility or reasons for denial, speaking with an employment lawyer experienced in FMLA-related matters may be beneficial.

Can I Use FMLA Leave to Tend to my Father-in-Law Who has Recently Become Very Ill?

Unfortunately, no, as FMLA leave does not pertain to in-laws—only one’s own parents. In that situation, your spouse would have to request the leave to care for him.

Can I Use FMLA Leave to Care for my 19 Year-Old Son?

In some circumstances this is possible, although the FMLA only grants leave to tend to children older than 18 if they are "incapable of self care" due to a major disability that impairs one of the "major life activities."

How do Employers Determine the Applicable 12-Month Period?

The FMLA allows for four choices for employers when deciding what 12-month period they will use. These are:

  • The calendar year.
  • A fixed "leave year" based on any 12-month period, such as the company’s fiscal year or the employee’s starting date at the company.
  • A 12-month period starting on the first day of an employee's first fmla leave.
  • A 12-month period that runs backward from the first day that an employee's first FMLA leave began.

Is FLMA Leave Paid Leave?

The FMLA has no provision for paid leave. Using paid leave is one option for an employee, if they have it. However, employers can require that an employee use their paid leave in conjunction with the FMLA leave so long as proper notification of this policy has been provided.

Can Other Types of Leave Count Toward My 12-Week FMLA Leave?

They can. If the leave’s purpose meets the requirements for FMLA leave and due notice in writing is provided by the employer that they will treat the leave as part of the employee's annual FMLA leave allotment. This situation usually happens when an employee uses their leave based on worker's comp or maternity or paternity care.

Can I Attend My Prescribed Sessions with a Therapist with FLMA Leave?

FMLA leave can be used for ongoing treatments from a health care provider, so if therapy sessions are deemed medically necessary they will be covered under the FMLA’s provisions.

Can My Employer Make Me End My Leave Early?

Failing to provide medical certification of your serious health condition may give your employer the right to cut short your leave. However, if the proper certificates have been given, an employer does not have the right to ask you to return to work, even if it is only part-time or other light work.

Are There Limits to What I Can and Cannot Do While on FMLA Leave?

You may have to respect the policies of your employer concerning outside employment, but beyond this, your employer has no power to restrict your actions while you are on leave. However, this does not apply if you did not provide medical certification, if the original reason for the leave no longer exists, or if you lied about the reasons for the leave to begin with.

My Employer Refuses to Grant My Leave Request. Is that Legal?

If the FMLA applies to your employer and you have eligibility for leave under the law, then your employer must respect your request so long as you meet the FMLA's certification and notice requirements and haven't already used up your leave for the relevant 12-month time period.

Can I Be Fired If I Take FMLA Leave?

Employers can't curtail your FMLA rights, nor can they use FMLA leave as a negative factor in any employment considerations, including terminations or promotions. However, on some occasions certain high-paid salaried workers, known as "key" employees, can be denied reinstatement.

Can I Be Fired if I Complain About an FMLA Violation?

No. Employers cannot punish an employee for alleging a violation of the FMLA.

Bonuses Prior to FMLA Leave

If an employee is up for a bonus before taking their FMLA leave, the employer cannot use that leave as a reason to deny the bonus. That said, an employer has no obligation to count FMLA time towards the accrual of benefits, a bonus, or seniority.

Parental Leave after Childbirth

Childbirth is an acceptable condition for FMLA leave, and FMLA provisions allow a mother to take leave for continuing care or parental care after childbirth. Likewise, a father can also take FMLA leave to tend to his newborn child or to his spouse, if she is incapacitated by child birth or pregnancy.

With an employer's approval, both parents may use their 12-week leave over the span of a year by using a few weeks at a time or by decreasing their work hours during the week in a process called "intermittent parental leave.” However, when both parents work for the same employer, only one can use pregnancy- or child-birth-related leave at a time.

Pregnancy Leave

Under certain circumstances, pregnancy alone can qualify one for FMLA leave as a major medical condition, especially if a doctor prescribes bed rest at any time during the pregnancy. Workers who ask for time off due to pregnancy may need to verify the pregnancy-related complication with medical certification.

FMLA Leave for those Adopting or Becoming a Foster Parent

The FMLA also allows an employee to be granted leave if they adopt or take on a foster child. Under the FMLA, a worker can request a 12-week leave for as long as one year after they have adopted a child or after a foster child has been placed with them. Leave for adoption can also be granted prior to the actual event if an employee must miss work in order to have the child placed with them—reasons for this include attending counseling sessions, making a court appearance, or traveling to a different country to finish the adoption process. Typically, where the child was adopted from has no bearing on whether FMLA leave will be granted.

Medical Leave to Care for a Family Member with a Serious Health Condition

If a member of an employee’s family comes down with a serious medical condition, they may be granted FMLA leave. However, the FMLA only considers spouses, one’s children, and one’s parents as “family members” at this time, and other, more distant relations, such as in-laws and grandparents, do not fall under its coverage. Additionally, ordinary ailments like the common cold, upset stomachs, flu, earaches, and headaches fail to meet FMLA qualifications—although if a doctor believes a common sickness to be serious enough due to an uncommon prolongation of its symptoms, it can meet the standards for FMLA leave in certain circumstances.

Medical Leave for You Own Serious Health Condition

There may be times when FLMA leave can be granted due to an employee’s own medical situation. For instance, employees who cannot function in their normal work capacity due to a chronic health condition or serious illness may be allowed time off for treatment or to be administered prolonged health care under the supervision of a doctor. However, a "period of incapacity" of more than three consecutive calendar days is required by FMLA regulations for leave to be granted. Similarly, if a worker’s condition requires that they visit their health care provider twice or more for the same condition, those visits must happen no longer than 30 days after the first day the employee was incapacitated. Under FMLA rules, treatments of a chronic medical condition must happen twice or more in a calendar year, and an employee may be asked to provide medical certification of this.

Medical Certification and Record Keeping

Medical certification may be required by employers to approve health-related leave under the FMLA, as well as military caregiver leave. Employers may also ask for fitness-for-duty certifications prior to the end of leave, including intermittent leave, so long as proper notice and all necessary information has been provided. Accurate records of this must be kept by the employer, and they must post either electronically or physically a notice of the employee’s FMLA rights so that both job applicants and employees are aware of it. Employees should also be aware that although the employer can ask for certification, they cannot have access to the employee’s medical records.

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