Labor and Employment

Taking Leave Under the Family and Medical Leave Act

By Lisa Guerin, ​J.D., Boalt Hall at the University of California at Berkeley

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In most states, employers are not legally required to provide paid sick leave. However, the federal Family and Medical Leave Act (FMLA) requires larger employers to give eligible employees unpaid time off for health and caregiving reasons. Your state’s law may give you additional leave rights.

Who Is Covered

Employers must comply with the FMLA if they have 50 or more employees. Not every employee of a covered employer is automatically eligible for FMLA leave, however.

To take FMLA leave, you must have worked for a covered employer for at least 12 months. During the 12 months before your leave will begin, you must have worked at least 1,250 hours. And, you must work at a location where you employer has at least 50 employees within a 75-mile radius.

Reasons for Leave

FMLA leave is available for the following reasons only:

  • for your own serious health condition
  • to care for a family member with a serious health condition
  • to bond with a new child
  • to handle certain needs arising out of a family member’s call to active military duty (called “qualifying exigency leave”), or
  • to care for a family member who was seriously injured in active military duty (called “military caregiver leave”).

For most categories of FMLA leave, family members include only parents, spouses, and children. However, you may take military caregiver to care for a wider set of family members, including parents, spouses, children, siblings, grandparents, grandchildren, aunts, uncles, and even cousins, depending on the circumstances.

A serious health condition is an illness, injury, impairment, or condition that involves:

  • inpatient care
  • incapacity due to pregnancy or prenatal care
  • incapacity or treatment for a chronic serious health condition
  • permanent or long-term incapacity
  • incapacity for more than three full days with continuing treatment by a health care provider, or
  • absences for multiple treatments for a condition that would result in more than three days of incapacity if left untreated.

For more information, see What Is a Serious Health Condition Under the FMLA?

Notice and Medical Paperwork

If you know in advance that you will need leave for a foreseeable reason (such as childbirth or a scheduled surgery), you must give your employer at least 30 days’ notice. For unforeseeable leave (to care for a spouse who was in a car accident, for example), you must give as much notice as is practical under the circumstances.

Once you give notice, your employer will give you paperwork about your rights and obligations under the FMLA. Your employer can ask you to provide written proof of the reason for your leave. If you are taking leave for your own serious health condition or that of a family member’s, your employer can require you to provide a medical certification from a doctor. You may also be required to provide proof of a family relationship and/or proof of your family member’s military service, depending on your reasons for taking leave.

Amount of Leave

For most types of FMLA leave, you may take up to 12 weeks of unpaid leave in a 12-month period. If you need to take leave intermittently—a few hours or days at a time rather than all at once—you may do so for most types of leave. However, if you want to take intermittent leave to bond with a new child (for example, by working part time, or taking some leave right after the birth and some later), your employer must agree to the request.

If you need leave to care for a family member who was injured or exacerbated an injury in active military service, you may take up to 26 weeks of unpaid leave in a single 12-month period. This leave is available whether your family member is still in the military or is a veteran.

Job and Benefit Protections

During your FMLA leave, your employer must continue to pay for your health insurance coverage. Your employer cannot harass you or discriminate against you for taking leave. When you return from leave, you must either be reinstated to your former position or be given an equivalent job without forfeiting pay, benefits, or seniority.

State Leave Laws

A number of states have their own family and medical leave laws. Some of these laws are more generous than the FMLA because they apply to smaller employers, allow leave for additional health conditions, give employees more time off, or cover additional family members, for example. Some state laws also allow time off for reasons other than health and caretaking responsibilities. For example, in California, employers with 25 or more employees must provide unpaid time off for an employee to attend a child’s school conferences or to seek treatment for domestic violence. You can find out what your state provides at Nolo’s State Family and Medical Leave Laws page.

When to Speak to a Lawyer

If your employer has incorrectly denied your request for leave, has not properly continued your benefits during your leave, is harassing you or requiring you to work during leave, or has refused to reinstate you when your leave is through, talk to an experienced employment lawyer right away. A lawyer can help you assert your rights with your employer to protect your job. And, if you are fired for taking FMLA leave, a lawyer can help you sue your employer for damages.

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