Basics of the Family and Medical Leave Act (FMLA)

April 18, 2012
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The Family and Medical Leave Act – commonly called FMLA – was signed into law by President Clinton in 1993. The core provision of the legislation provides for 12 weeks of leave for employees with serious medical conditions or who need to care for family members. The employee cannot lose his or her job because of the leave from work. The employer is not required to give paid leave, but any health benefits must be continued for the employee.

Congress has made changes to the provisions over the years – tightening, clarifying, and sometimes expanding eligibility standards – but the basics have remained the same. The last major changes to the regulations were issued in 2008.

Like COBRA, FMLA is regulated by the Department of Labor.

Benefits Provided

Under FMLA, an eligible employee at a covered employer who experiences a qualifying event is entitled to

  • 12 weeks of leave (26 weeks for military caregiver leave).
  • Maintenance of health benefits under the same terms as if the employee were working.
  • Restoration to the same or equivalent position. This provision is subject to the Key Employee exception.

A “key employee” is one whose earnings are in the top 10% of all employees at the relevant worksite. An employer is not required to restore a key employee to the same or equivalent job if they can demonstrate “substantial and grievous economic injury” by doing so. To take advantage of the provision, the employer must notify the employee of the key employee designation and the reasons for not reinstating the employee and also give him/her a reasonable opportunity to return to work.


There are two parts to determining eligibility for FMLA leave: employer size and employee status.

Covered Employer

The employee must work for a covered employer. A covered employer is one with at least 50 total employees working at one or multiple locations within a 75 mile radius.

When counting then number of employees, remote workers such as salespeople and telecommuters are counted with the worksite to which they report or from which they take direction.

Employee Status

An employee must meet service and hours of work standards – as well as work for a covered employer – to be eligible for FMLA.

  • The individual must have been employed by the employer for at least 12 months prior to the leave. The months of service don’t have to be consecutive, but the employer doesn’t have to count any time worked before a break in service of seven or more years. The only exception is if the break in service is because of military service.
  • The employee must have worked at least 1,250 hours in the 12 months before the start of the FMLA leave. The burden is on the employer to show through accurate records that an employee did not work enough hours.


Even though an employee does not have to specifically request FMLA leave, the employer does have the right to ask for enough information about the employee’s situation to figure out whether or not FMLA applies.

The employee is also expected to give his or her employer at least 30 days notice for foreseeable events based on the expected date of that event. Examples include the birth or adoption of a child or a medical procedure that is generally planned ahead of time such as a knee replacement.

If something changes about the situation – perhaps a baby is born early – the employee or a representative must notify the employer as soon as possible.

Failure to give at least 30 days notice for foreseeable events means the employer potentially has the right to delay the FMLA coverage for the leave.

When a leave is triggered by an emergency, the employee or a representative must notify the employer within the same guidelines normally applied for calling in sick.

The counterpoint to the employee’s obligation to notify the employer of leave situations is the requirement that employers notify employees in some way about the FMLA rules. The Department of Labor makes a poster available for employers that meets the posting requirement.

Eligible Events and “Serious Medical Condition”

FMLA leave has been available for several core reasons since it was first passed:

  • Complications or incapacity related to pregnancy and/or child birth.
  • Caring for a newborn child or newly placed adopted or foster child. Available for both parents. Might be referred to as maternity or paternity leave by some employers.
  • Caring for the employee’s spouse, child (biological, adopted, foster, step, legal ward), or parent who is suffering a serious medical condition.
  • The employee’s own serious medical condition.
Some employers have chosen to broaden the categories of people for whom an employee can take FMLA leave. For example, expanding their policies to include domestic partners, grandparents, or siblings. But this is not required, so check with your employer before making any assumptions.

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Employers can ask for reasonable documentation to prove a family relationship being used to get FMLA leave.
The definition of “serious medical condition” has been an area of confusion and conflict from the beginning.  Some situations such as being in the hospital or placed on bed rest during pregnancy are fairly straightfoward. But periods of incapacity – as determined by a medical professional – for more than three straight days also qualify even when they don’t rise to the level of requiring hospitalization.
Certain chronic conditions can also qualify. Asthma is a classic example in this category.
Employers can ask for medical certification in support of a leave request, but they are required to provide proper notice of the requirement. Employees are required to give all the necessary information to support their need for FMLA leave.
The DOL has developed several forms that employers can use to gather the necessary information, although their use is not required. But any alternate data collection method should provide all the same information.
The DOL has a FAQ document that includes a good review of the “serious medical condition” issue (an many others).
Leave specific to military service was added in 2008.

Military-Specific Provisions

The 2008 changes to the FMLA law included a new category known as military family leave.  There are two basic types:

  • Qualifying exigency leave
  • Military caregiver leave
The regular eligibility provisions related to employer size and number of hours worked still apply.
The Department of Labor has plenty of information about this new leave type, including a thorough FAQ document.

Qualifying Exigency Leave

Eligible family members of National Guard or Reserves members may use up to 12 weeks of FMLA leave to take care of a variety of arrangements that suddenly become necessary when a person is called to active duty. Common examples are arranging for child care and making various financial or legal arrangements such as getting wills and powers of attorney set up.  The family member can even take up to five days to spend time with the military member when that individual is on a temporary leave while deployed.
The employer and employee (the eligible family member) can come to agreement about any situations not explicitly mentioned by the DOL as being a qualifying exigency.  These additional situations should arise out the of the call to active duty and should be appropriately documented.  The employer can count these ad hoc situations against the employee’s FMLA allowance.

Military Caregiver Leave

Eligible family members can take up to 26 weeks of FMLA leave within a 12-month period to take care of a covered servicemember – pretty much any current member of the armed forces or temporary disability retiree – who has a serious injury or illness.
The employer can ask for appropriate medical documentation of the covered servicemember’s condition to make sure it meets the FMLA requirements.  In cases where the family member must fly immediately to Landstuhl Regional Center in Germany under an invitational travel order (ITO) or invitational travel authorization (ITA) to be with a servicemember, the employer must accept the travel papers in lieu of other medical certification.

Ways To Take FMLA Leave

There are several ways to divvy up the available FMLA time:

  • Continuous Leave.
    For example, taking the full 12- or 26-week benefit in one uninterrupted span, assuming the circumstances support the need for the full span.
  • Reduced Leave.
    With this approach, the employee’s work schedule is temporarily reduced.  This reduction can take the form of fewer hours per day, fewer days per week, or some combination.
  • Intermittent Leave.
    In this scenario, the employee takes leave in smaller, multiple chunks.  All absences must be for the same illness or injury.  The employee has an obligation to try and minimize disruption to the operation of the business when scheduling.  The employer has the option of putting the employee in a different position that better suits the employee’s situation.  The new position must provide equivalent pay and benefits.

Regardless of how employee takes FMLA leave, careful record keeping is essential to make sure both the employer and employee understand how much has been used for a particular qualifying event and how much has been used within any given 12-month window.