Updated July 8, 2020:

If you're wondering how to apply for FMLA, the info below will help you get started. Applying for FMLA involves submitting a form to your employer that is filled out by a medical professional stating that it's necessary for you to miss work for family or medical reasons.

What Is FMLA?

The Family Medical Leave Act requires employers to allow employees that meet certain standards to receive up to 12 weeks of unpaid leave. This job-protected leave also includes up to 26 weeks for service member family leave.

Here are the criteria for medical leave for birth or an employee's own serious health condition:

  • A "serious health condition" is defined as a condition that involves inpatient care or continual treatment.
  • The employee must receive medical verification, and the employee's position and description must be provided by the employee's health care provider.
  • The employee may be required to get a second opinion from a medical professional. A third opinion might be necessary if the first two are not similar. The third medical professional will be selected and agreed upon by the employee and employer.
  • The employee might be required to supply additional medical certification during the leave and a fitness for duty report before returning to work.

Who Is Eligible?

The employee must have worked for their covered employer for at least one year to be eligible to apply for FMLA. The employee must have also worked 1,250 hours for their current employer in the previous 12 months and 50 percent of time scheduled. The company must employ over 50 employees within 75 miles to be required to offer FMLA. The employee must also miss three consecutive days of work for a qualified reason to be eligible for FMLA.

What Do You Need to Apply?

To apply for FMLA, the employee must take an FMLA Medical Certification Form to their health care provider. This form ensures that the employee's or family member's applicable health condition is valid. After receiving the form, the employee must return it within 15 calendar days.

After employees are approved, they must submit the FMLA Notification Form within two days of requesting leave.

After the leave is approved, employees should give advance notice and may be denied if they don't meet that requirement. The employee typically should offer 30 days advance notice when the leave is foreseeable.

Advanced Notice and Medical Certification

When applying for FMLA, an employee might be required to produce supporting paperwork for their claim in the form of an advanced leave notice and medical certification. A request for leave under FMLA might be denied if the following requirements aren't met:

  • If the leave can be considered as foreseeable, the employee is normally required to provide an advanced notice no later than 30 days prior to the beginning of the requested leave period.
  • Employers have the right to require medical certification in support of an employee's leave request due to serious health conditions.
  • Employers are also legally allowed to request second and even third opinions at their expense.

In addition, a fitness for duty evaluation is often required before employees are allowed to return to their duties at the end of their leave of absence.

Reasons to Consider Applying for FMLA

Personal leave under FMLA allows a person to take time off work to care for a family member with a serious health condition or other extraordinary circumstances. It also includes service member leave. The medical condition must be verified by a medical professional who must also certify the employee's presence is necessary or beneficial.

Here are some examples of appropriate FMLA leave:

  • Adoption
  • Care of a newborn child born to a spouse
  • Foster care placement of a child
  • Maternity
    • 18 states, plus Washington D.C. and Puerto Rico, have maternity leave laws which are more stringent than FMLA

Military Family Leave also falls under FMLA and allows service members the opportunity for leave under the following two conditions:

  • Military Caregiver Leave — Caregivers of a service member, including a spouse, parent, child, or next of kin, can take up to 26 weeks of unpaid leave to care for a military relative.
  • Qualifying Exigency Leave — A person may be eligible for FMLA to take care of some important issues that come with having a loved one deployed to a foreign country. The person can take leave as soon as they are given notice their loved one will be deployed.

Types of FMLA

  • Continuous FMLA Leave refers to a situation where the employee has been absent for three consecutive business days and sought treatment from a medical professional.
  • Intermittent FMLA Leave is when an employee has a serious qualifying health condition and will miss work in separate blocks. Intermittent leave may be hourly, daily, or weekly. Typically, intermittent leave is used when an employee needs ongoing treatment.
  • Reduced Schedule Leave means a need to work fewer hours per day or per week. This type of leave is often appropriate for someone taking care of a family member or who needs to reduce stress in their own life.

Maternity Leave

There are currently 18 states in the United States, plus Washington D.C. and Puerto Rico, that have maternity leave legislation in place. In many cases, these laws offer more rigorous protection for mothers than FMLA does.

FMLA Payment and Benefit Requirements

Employers only have to continue paying employees on FMLA leave if the employee chooses to use paid time off or sick time during their leave. Some employers also have a policy that paid time off must be used when taking FMLA leave. Some employers have specific paid leave time policies for FMLA leave. Payroll departments must be alerted of any changes in salary or pay during FMLA leave.

Employee benefits remain active for up to 12 weeks, as long as the employee pays their contribution amounts. An employer may have a continuation of benefits language for employees who don't qualify for FMLA leave.

Enforcement of FMLA

There are a few important points to keep in mind when it comes to enforcing FMLA claims:

  • The United States Department of Labor has legal authority to thoroughly investigate and determine the resolution of complaints pertaining to FMLA violations.
  • Eligible employees have the right to pursue legal action against their employers in the event of a violation.
  • FMLA doesn't affect state or federal laws that prohibit discrimination.
  • FMLA doesn't supersede federal or state laws or any collective bargaining agreements that might offer greater rights associated with medical or family leave rights.

In the event that an employer is found to be in violation of FMLA, remedies that may be available to the affected employee can include:

  • Wages
  • Employee benefits
  • Any other compensations that were denied or lost by the employee as a result of the violation
  • Actual monetary losses experienced by the employee

These remedies are limited to a maximum of 12 weeks when they pertain to:

  • Wages
  • Interest
  • An amount equaling "liquidated damages"

The exception to this is when the employer is able to offer proof that they've taken action in good faith. These scenarios are often referred to as "double damages." The employee may also be entitled to relief in other forms like:

  • Employment
  • Reinstatement of duties
  • An acceptable promotion

In addition to all of this, employees may also be entitled to receive compensation for things like:

  • Reasonable attorney fees
  • Expert witness fees
  • Other fees associated with the legal action in question

In short, when an employer is found to be in violation of FMLA, the affected employee is potentially entitled to compensation that would ultimately end up costing the company much more than they would have lost had the violation not occurred.

Employer Considerations

Employers must provide a specified amount of leave for the following:

  • Jury Duty
  • Voting with Paid Time Off
  • Military

Other leaves are not protected by law, and the employer is not required to offer the position to the employee when they return.

To make sure the company is legally compliant, it's best to create custom compliant forms specifically for the company. Free templates online and through the Department of Labor don't always completely cover the employer. Forms should include start and end dates. Supervisors are able to approve or deny the request, but documentation is crucial to avoid legal complications.

It's ideal to have one point person dealing with leaves of absences within the company. This process allows more consistency and compliance with state and federal laws and helps to prevent civil action by the employee for employer violations.

The U.S. Department of Labor is authorized to resolve complaints. If the investigation finds the employer violated FMLA, remedies include the following:

  • Wages
  • Employment benefits
  • Compensation denied or lost to the employee
  • Actual monetary loss
  • Reinstatement
  • Promotion
  • Reasonable attorney's fees
  • Reasonable expert witness fees
  • Other costs of legal action

These remedies are limited to 12 weeks of wages, interest, and liquidated damages, or double damages. Employers can also attempt to prove these actions were done in good faith.

Finally, FMLA does not supersede state and local laws and collective bargaining agreements above and beyond FMLA. It also doesn't affect federal or state laws prohibiting discrimination.

If you need help with knowing how to apply for FMLA, 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.