Key Takeaways

  • The Family and Medical Leave Act (FMLA) entitles eligible employees to up to 12 weeks of unpaid, job-protected leave for qualifying family or medical reasons.
  • FMLA covers situations such as childbirth, adoption, foster care placement, serious health conditions, and certain military-related events.
  • Eligibility depends on the employer size (50+ employees), employee tenure (12 months), and hours worked (1,250 in the prior year).
  • Employees must provide advance notice and documentation for foreseeable leaves, and employers must maintain health benefits during leave.
  • States may have stricter or paid-leave versions of FMLA, offering greater protection to workers.
  • Employers may require the use of paid vacation or sick time concurrently with FMLA leave if this policy is applied uniformly.

Enacted in 1993, the Family and Medical Leave Act (FMLA) requires certain employers to provide unpaid, job-protected leave for qualifying medical and family situations.

FMLA mandates that employees of all genders receive at least 12 weeks of unpaid, job-protected leave within 12 months of giving birth, adopting a child or becoming a foster parent. Employees affected by personal or family illnesses are also protected under FMLA.

Employees with immediate family affected by military service (e.g., called to active duty or injured in the line of duty) may take 12 to 26 weeks of unpaid, job-protected leave depending on the circumstances.

Employees may also receive FMLA leave leading up to a pregnancy if they suffer from a related “serious health condition” that requires inpatient medical care or ongoing treatment by a healthcare provider. This includes severe morning sickness.

However, employers can require employees use paid vacation or personal leave for any FMLA leave as long as that policy is properly communicated well in advance.

When is an Employee Covered by FMLA?

The size and location of a business determines whether an employee can claim FMLA leave. FMLA leave kicks in if the following requirements are met:

  1. The employer has at least 50 employees within a 75-mile radius of where the employee’s office is based.
  2. The employee has worked at the company for more than one year (not necessarily continuously) and worked more than 1,250 hours (roughly 24 hours per week) in the previous year.

However, many states have created additional regulations that require businesses with fewer than 50 employees to offer paid and medical leave and/ or guarantees these types of leave also to employees who have worked less than 1,250 hours for the company. 

California, New Jersey and Rhode Island require paid family and medical leave financed through employee-paid payroll taxes. Washington, D.C., mandates paid medical leave (but not parental leave). 

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Eligibility and Employee Rights Under FMLA

To understand what is FMLA leave in practice, employees should be aware of both eligibility requirements and the rights that accompany coverage. Eligible employees can take up to 12 weeks of unpaid leave in a 12-month period for:

  • The birth or care of a newborn child
  • Adoption or foster care placement of a child
  • Serious health conditions that prevent the employee from performing job duties
  • Caring for a spouse, child, or parent with a serious health condition
  • Certain military family needs, such as caring for a covered service member or addressing qualifying exigencies related to active duty

During FMLA leave, employers must continue group health insurance coverage as if the employee were still actively working. Upon return, employees are generally entitled to reinstatement to the same or an equivalent position with the same pay and benefits. Employers cannot retaliate against employees for requesting or taking FMLA leave.

Notification and Certification Requirements

Employees must give 30 days’ advance notice if the need for FMLA leave is foreseeable (for example, childbirth or a scheduled surgery). If the situation is unexpected—such as a sudden illness—notice should be given as soon as practicable.

Employers are entitled to request medical certification to verify the serious health condition of the employee or family member. The certification must generally be provided within 15 calendar days of the request. Failure to submit appropriate documentation may result in delay or denial of leave.

In addition, employees are required to comply with the employer’s normal call-in procedures unless exceptional circumstances make this impossible. Employers, in turn, must notify the employee in writing about whether the leave qualifies under FMLA and explain the employee’s rights and responsibilities during the leave period.

Intermittent or Reduced Schedule Leave

FMLA does not always require leave to be taken in one continuous block. Employees may take intermittent leave (in separate blocks of time) or on a reduced schedule if medically necessary.

For example, an employee undergoing chemotherapy or physical therapy may take a few hours off each week rather than consecutive weeks of leave. When leave is taken intermittently, the employer can temporarily transfer the employee to an alternative position that accommodates a reduced schedule while maintaining the same pay and benefits.

This flexibility ensures employees can balance ongoing treatment or family care with continued employment, minimizing financial disruption while receiving the care they need.

FMLA and Military Family Leave

FMLA extends additional protections to families of service members:

  • Military caregiver leave: Up to 26 weeks of unpaid leave in a single 12-month period to care for a covered service member with a serious injury or illness.
  • Qualifying exigency leave: Up to 12 weeks of leave to manage issues arising from a family member’s deployment—such as arranging child care, attending military ceremonies, or addressing financial and legal matters.

These provisions ensure families of service members can meet caregiving and administrative obligations without risking job security. Employers are required to treat military-related FMLA requests with the same level of protection and documentation standards as other qualifying leaves.

State Family and Medical Leave Laws

While the federal FMLA sets a nationwide baseline, many states have expanded family and medical leave protections. States such as California, New Jersey, Rhode Island, Massachusetts, and Washington offer paid family leave programs funded through payroll taxes.

These programs often:

  • Cover employers with fewer than 50 employees
  • Offer partial wage replacement during leave
  • Extend coverage to domestic partners and siblings
  • Provide broader definitions of “family member”

Employees should review both federal and state-specific laws to determine their full range of benefits. Consulting an employment attorney through UpCounsel can help ensure compliance and proper application of these overlapping laws.

Employer Responsibilities and Best Practices

Employers have specific legal duties under FMLA, including:

  • Posting FMLA notices outlining employee rights in a visible location.
  • Providing written notice of eligibility and designation within five business days of an employee’s leave request.
  • Maintaining confidentiality of medical information.
  • Prohibiting retaliation against employees who exercise FMLA rights.

Employers can minimize compliance issues by maintaining accurate leave records, training HR personnel, and adopting consistent leave policies. Clear communication ensures both the business and the employee understand their obligations throughout the leave process.

Frequently Asked Questions

  1. What does FMLA leave cover?
    FMLA covers unpaid, job-protected leave for childbirth, adoption, serious health conditions, or certain military-related needs.
  2. Do employees get paid during FMLA leave?
    No. FMLA leave is unpaid, but employers may require employees to use accrued paid time off concurrently.
  3. Can an employer deny FMLA leave?
    Yes—if the employee is ineligible or fails to provide proper notice or medical certification.
  4. How long is FMLA leave?
    Eligible employees can take up to 12 weeks per 12-month period, or 26 weeks for military caregiver leave.
  5. Are there state laws that offer better benefits than FMLA?
    Yes. Several states offer paid family and medical leave programs that provide wage replacement and cover smaller employers.

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