A Detailed Guide To the Family And Medical Leave Act

Updated : August 17th, 2022

Have you ever undergone a health related emergency? Have you ever been in a situation where the needs of your family conflicted with your ability to show up fully actualized at work? Or even to show up at work at all? If you work at one of the many places required to adhere to the Family and Medical Leave Act, you have the right to put yourself and your family first.

What Does the FMLA Provide?

  • 12 weeks of unpaid leave per year (does not need to be consecutive weeks)
  • Employee health insurance is maintained during leave
  • Employee is entitled to the same job as before (or equivalent) upon return to work
  • Military family leave entitlements for deployment of a family member
  • 26 weeks of unpaid leave to care for injured or sick servicemember (must be direct family member, not “in-law”)

 There are a number of excellent reasons why someone can’t come into work for an extended period of time. While some employers might seem to have a total lack of empathy regarding difficulties outside of work, the truth of the matter is that most employers are required to show more than empathy.

Your employer is actually required to provide you with unpaid time off. Take note that we said unpaid, because paid time off for any of the reasons is solely up to the discretion of an employer in most states. There are 11 states where employers are required to provide paid time off for the concerns we’ll outline below: California, Colorado, Connecticut, Delaware, Massachusetts, Maryland, New Jersey, New York, Oregon, Rhode Island, Washington, and the District of Columbia. But outside of these states, the best you can get is essentially 12 weeks per year, with guaranteed employment upon your return.



What Is the Family and Medical Leave Act?

The roots of the FMLA began in the Clinton administration. It was the mid-90s, and the workforce was seeing an influx of women, some of them needing maternity leave on occasion. The Federal Government decided to revamp guidelines around unpaid time off to facilitate a better work-life balance for the American people. In the words of the U.S. Congress:

“It is important for the development of children and the family unit that fathers and mothers be able to participate in early child rearing. The lack of employment policies to accommodate working parents can force individuals to choose between job security and parenting.”

Who Qualifies for the Family and Medical Leave Act?

There are several eligibility requirements to qualify for FMLA benefits. You must have been at your current workplace for 12 months already, and worked at least 1,250 hours over that timespan. This comes out to about 24 hours per week. This essentially means that FMLA even covers some part-time employees.

A company is only required to provide FMLA if it employs 50 people within a 75 mile radius. You can rely on the fact that pretty much every corporate employer is required to offer unpaid time off for family and medical leave. Small businesses are not required to offer FMLA, and clients who have hired you as an independent contractor are also not required to offer it.

If you are a federal employee, please note that federal employees are entitled to the same employee rights guaranteed to the private sector via FMLA leave.

If the situation is foreseeable, an employer can require advanced notice of an employee taking advantage of FMLA. A company may require 30-day advance notice before an employee exercises their FMLA privilege for unpaid leave. In some cases, such as that of serious illness, they may request a second or even third opinion from a medical professional.

Sometimes, they will collect this information using a form called Department Of Labor Certification of Health Care Provider. Within 5 days of making their request, the company’s HR department must fill out a DOL Notice of Eligibility and Rights and provide it to the employee. If the company needs anything else from the employee, such as a letter from a doctor), the employee must responsively provide that within 15 days.

As you can imagine, sometimes an employee does not have time to adhere to these protocols. Individual situations should be handled on a case by case basis between the employer and the employee. For instance, a company may still require certain procedures to be adhered to even if the employer has already left to begin their unpaid leave.

It is best to consult with your company’s human resources manager proactively before you would be in a situation where you need to use FMLA, just so you are familiar with the policies of the company. Moreover, you might learn that your employer offers certain benefits like paid time off such as maternity leave or paternity leave, which is much better than unpaid leave.

If you or your spouse have just given birth, FMLA is also meant for you. If you have an adopted child or are welcoming a foster care child into your family, you can also use FMLA. If your spouse is in the military and there has been some sort of emergency (like injury or death), FMLA will also protect your employment. The FMLA applies to mothers and fathers as well as gay couples. If you cannot work because of severe health conditions, or you need to provide care to an immediate family member (spouse, child, or parent) with serious health conditions, FMLA is there for you.

What Does the FMLA Provide?

12 weeks of unpaid leave per year

These 12 weeks do not need to be consecutive, and they renew every year (although they do not roll over like vacation time). The year-long period begins on the first day you utilize FMLA, so you also cannot put 12 weeks from one year together with 12 weeks from another year, making a full 24 weeks. As a practical example, this might mean taking 6 weeks off to welcome a newborn into your family, and then saving the remaining 6 weeks in case your spouse needs additional help the rest of year, or if there is some sort of other emergency.

Employee health insurance is maintained during leave

This is a crucial piece of FMLA that can be a real lifesaver for many employees. Considering that FMLA is exclusively geared toward health concerns (with the exception of time off used toward adoption), this is great news that can ease a lot of worries. With FMLA, you keep your health insurance. There will be a lot of doctor visits as the newborn gets adjusted to life at home. If your employer offers an HSA (health spending account, a sort of pre-tax shelter for medical purchases like medicine and prescriptions) this account will also be accessible during your FMLA if funds are available.

Employee is entitled to the same job as before (or equivalent) upon return to work

There are a number of people in the workforce who are very hesitant to assert their family-related needs because they assume that if they leave work for an extended amount of time, they won’t get their job back. While this may still be the case for a small employer like a family owned business, and it was certainly the case for all employers a number of years ago, these days, no employer meeting the requirements above (namely 50 employees) can threaten to take your job away if you need to dedicate even up to three months of time away from work. If the job you had will not be available when you return, they are required to offer you a similar or equivalent job, which might mean a similar job description or pay.

Military family leave entitlements for deployment of a family member

If you have a spouse in the armed forces, reserve forces, or national guard, and your spouse is suddenly deployed, you can also use FMLA to take care of other family members such as your children and secure caretaking arrangements for the future. Remember that your company will require some advanced notice regarding your use of FMLA, so as soon as those deployment orders come in you should speak to your HR manager.

26 weeks of unpaid leave to care for injured or sick servicemember

The service member in question must be a direct family member (spouse, child, or parent) and not an in-law. As you can see, there is a significantly greater amount of time provided for this concern. If you are using FMLA for this purpose, you might want to look at eligibility for additional benefits. Though you may not qualify for unemployment benefits, there are other programs such as SSDI and VA benefits that could be worth exploring.

How Do I Request Family Medical Leave?

As mentioned, you need to give your employer 30 days of notice. However, you are not required to tell your employer specific medical details, even if they request a second or third opinion from a doctor or medical professional (rather, the letter proffering such information can remain vague enough to avoid violating your HIPPA rights). Really, the best answer to this question is to ask your human resources department what the policies and procedures are for requesting FMLA.

FMLA Certification

If you do need to provide some certification of a medical condition, there are specific pieces of information your employer will need. They will need contact information for your healthcare provider.

They will need to know when the condition began, how long it is expected to last, appropriate medical facts about the condition, a statement as to whether or not you can work and whether or not you need care, and an indication as to whether the condition will be an acute one-time incident or occur intermittently (that is to say, whether you need to use 12 weeks of FMLA up all at once, or spread them out throughout the year).

Keep in mind that while you are not legally required to furnish the name of your exact condition, the more information you can provide your employer, the easier it will be to get FMLA. By the same token, your employer should not push you to disclose what you’re not comfortable with.

What If My Employer Denied My FMLA?

If your request for FMLA is denied after adhering in a timely manner to requests by your employer for more information (for instance, second and third opinions), it’s time to immediately contact the Wage and Hour Division of the Federal Government.

Additionally, if your employer threatens or intimidates you (such as implying or stating you won’t get your job back) you should contact the WHD as well by calling 1-866-4-USWAGE anytime between 8:00 AM and 5:00 PM. In some cases, you may choose to bring the company to court, but you should definitely consult with the WHD first to see if there is another recourse that does not require hiring a lawyer. It’s important to keep in mind that FMLA is not the same as going to quit your job for a good cause. The FMLA was passed to help you keep your job.

Remember that FMLA is not sick leave, and it is not vacation leave. It is unpaid, job-protected leave – only if you have a qualifying issue such as those outlined above. Regarding paid leave, many companies do offer paid family leave, but in all but 11 states they are not required to do so. For a covered employer with 50 employees, an eligible employee being able to balance work and life is an invaluable tool for employee relations. But more than that, the FMLA is a form of job protection created so that you do not have to choose between your job and your family’s wellbeing.



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