FMLA Rights

FMLA rights are part of the Family and Medical Leave Act of 1993 (FMLA) enacted by the United States Congress as a provision to protect employees taking leave from discrimination and termination. FMLA is designed to allow for employees manage family and medical problems with leave, yet without additional cost to an employer. FMLA) 29 U.S.C. 2601 rules are the primary federal legislation ensuring health care insurance benefits during a legitimate leave from employment.

In January 2009, the commencement of military family leave entitlements were integrated to the existing legislation. More federal laws protecting employees requesting a family or medical leave are Title VII of the Civil Rights Act of 1964, the Pregnancy Discrimination Act of 1978, and the Americans with Disabilities Act (ADA) of 1990. Title VII outlines protected categories of persons, making it discriminatory on basis of sex, including matters of pregnancy discrimination.

Coverage and Application of the Family and Medical Leave Act

The 1993 Act allows eligible employees to take up to 12 (12) weeks of unpaid, job-protected leave annually. Employees are eligible for leave based on specified circumstance of: 

  • incapacity due to pregnancy, prenatal medical care or child birth;
  • care of a child after birth, or placement for adoption or foster care;
  • care of a spouse, son, daughter or parent, who has a serious health condition; or
  • a serious health condition that makes it impossible to perform the employee’s job.

Under FMLA, employee leave is unpaid. Employees continue to have rights to health care benefits as if still employed. FMLA also protects employees taking leave from discrimination, or discharge, and allows for claims to be levied against an employer for lost wages and damages associated with violations of those rights.

FMLA Coverage Limitations

FMLA coverage is not applicable to all employers, or to all employees. Rules to FMLA provide coverage to employers with 50 or more workers, having employed 50 or more workers for the last 20 weeks. Employees who work for an employer within a 75 mile radius of a work location, are counted toward the 50 employee total, and are eligible if meeting other requirements to leave.

Employees who work for an employer for a minimum of 12 months are eligible for FMLA. Those 12 months need not be consecutive, yet must meet the criterion of at least 1,250 hours of work time met for the employer during the period.

FMLA coverage also applies to public agencies, regardless of number of employees, and to employers and employees of elementary and secondary schools, both public and private.

Special eligibility requirements apply to airline flight crews.

Duration and Timing of Family and Medical Leave

An employee may take up to 12 workweeks of FMLA leave in a 12 month period; and this may be at once, or may be in increments of hours, days or weeks. An employee may take leave of 26 weeks during a 12 month period, to attend to an ill or injured military personnel under FMLA.

Substitution of Paid Leave for Unpaid Leave

Employees may elect, or employers may require, use of accrued paid FMLA leave.

Notice Requirements Under the FMLA

FMLA laws require employers to post notices for employees explaining family leave rights.

Standard FMLA leave requirements oblige an employee to give his or her employer 30 days' notice of intention to take FMLA leave, and the reason for the leave. Unexpected medical emergency FMLA leave without prior notice requests must also comply with notice and certification requirements to take advantage of your rights under the law.

 

Employer Responsibilities

Covered employers must inform employees requesting leave of their eligibility under FMLA. If an employee is ineligible, the employer must provide a reason. Employers must inform employees if the proposed leave is FMLA-protected, and amount of leave counted against the employee’s leave entitlement.

 

I think my employer may have violated my rights under FMLA. What can I do?

FMLA is enforced by the U.S. Department of Labor (DOL). If filing a complaint, it is not necessary to file with the Wage and Hour Division first. Claims must be filed within two years of the alleged FMLA violation.

Unlawful Acts by Employers

FMLA makes it unlawful for any employer to interfere with, deny, or restrain an employee’s exercise rights accorded under FMLA; and to discriminate or discharge against any person for opposing any leave practice.

"Serious Health Condition" Under the FMLA

The FMLA defines a "serious health condition" as an injury or ailment that involves either hospitalization or other inpatient care, or after-care treatment by a health care provider.

Birth or Adoption of a Child

Leave for child care after adoption or natural birth, is an eligible entitlement under FMLA.

Coordination of FMLA Leave with Paid Leave

While FMLA leave is unpaid coordination of FMLA leave with paid leave, with sick days and vacation days, is the right of an employer and employee.

Returning to Work

On return to work, an employee should be reinstated to the same role or a comparable or equivalent position. The role must be performed at the same location or proximate one to where the employee was previously employed. The FMLA exemption of this rule for employer reinstatement involves "highly compensated employees," where the employer would be caused serious economic hardship as result of the reinstatement. This also applies to when an employer notices that no reinstatement after leave will be offered, and the employee also does not make the decision to return.

Military Family Leave Entitlements

Under Military Caregiver Leave, the FLSA provides up to 26 weeks of leave in a single, 12 month period. Family members of military personnel are eligible to care for a serious injury or ailment incurred during active duty. This special provision extends the FMLA protected leave terms and conditions of the standard twelve-week period. Family care of veterans who have been honorably discharged or released meet the criteria. FMLA definitions of “serious” injury or ailment in this category are distinct from the standard FMLA definition of “serious health condition.

Penalties for Family and Medical Leave Violations

Violation of FMLA rules to leave may result in a lawsuit or mediation proceeding. Supervisors can be held personally liable (i.e., malpractice) should litigation be result of ineligibility for a leave taken under FMLA.

How is FMLA leave different from pregnancy leave?

Medical or disability leave is different in that it consists of other criteria than the time a woman is unable to perform work due to pregnancy, childbirth and after care. Child care or child-rearing leave consists of the time after adoption or birth during which a parent takes leave to care for the child.

Can men take FMLA leave for childbirth related reasons?

Yes. Male employees may take FMLA leave to care for a spouse, child or parent incapacitated by pregnancy, and are eligible to take child-rearing or child care leaves associated with the adoption or birth of a child.

My family member is a National Guard and Reserves personnel employee, and need time off to assist? Does the FMLA apply to me?

Under FMLA Qualifying Exigency Leave, a family member of National Guard and Reserves personnel may take up to 12 (12) weeks of leave in a single 12 (12) month period applying to any "qualifying exigency" arising call to active duty or contingency operations.

Does the FMLA require my employer to pay me during my leave?

No. FMLA allows for unpaid leave without fear of punishment or termination but does not require that leave be paid by an employer.

I have accumulated sick and vacation leave. Does that affect how much FMLA leave I can have?

FMLA allows for employees to use accrued paid leave, to cover FMLA leave taken. Employees may elect substitution of accrued paid vacation or personal leave for any of the situations covered by FMLA.

I can still work, but need time off for medical appointments. Does the FMLA apply to me?

FMLA rules allow for intermittent leave or reschedule or reduced time work with an employer’s approval. Leave in this category can be elected on basis of medically required recommendation to care for an ailing family member, newborn, foster child, adopted child, or alternatively for a personal chronic condition.

I am a manager at my company. Does the FMLA apply to me?

FMLA eligible cover for a "key employee" covers a manager classified as salaried, "eligible" employee or the highest compensated 10 percent employees of an organization within 75 miles of the worksite.

I am a government employee. Does the FMLA apply to me?

FMLA covers all local, state, and federal government agencies, regardless of the number of employees.

I am a teacher with three months of leave in the summer. Can I take FMLA leave during the winter?

Teachers, faculty and other instructors meet FMLA eligibility requirements for leave. Limits can be put into place if a request will mean disruptions in the school year.

I am on approved leave for six more weeks, but my employer keeps calling to see if I can return to work. Can they do this?

An employer cannot interfere an employee’s right to leave or discriminate. The may ask legitimate questions about an employee’s leave related to FMLA coverage.

What should I do if my FMLA leave request is denied or my job has been filled when I am ready to return to work?

If denied leave, or terminated at the end of an approved leave, an employee may file a complaint. Union members may submit grievance to their union.

How can I file a complaint? How much time do I have to file?

Employees who have experienced rights violation associated with rules to FMLA may file a grievance via a union, directly with the DOL, or a court. Unlike Equal Employment Opportunity Commission (EEOC) rules, FMLA does not require a claimant to first file with an administrative agency prior to filing a complaint in court. DOL limitations on filing exclude claims filed after two years of the date of the last action believed to be a violation of FMLA.

What are the remedies available to me?

If an employer is found to have violated FMLA, remedies available to the employee may include: compensation, wages, employment benefits, costs associated with medical care, interest incurred on accounts, and liquidated damages. Other forms of relief include: employment reinstatement and promotion. Cases filed in court may also result in compensatory damages in the form of attorney's fees, expert witness fees, and other costs associated with litigation.

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