Labor and Employment

Time Out and Off Work

By Sherrie Bennett, Attorney

The Family Medical Leave Act (FMLA) requires certain employers to allow eligible employees up to 12 weeks of unpaid leave for certain family and medical reasons. Exceptions apply to employers who have fewer than 50 employees, and other reasons.


Generally, employers must have 50 or more employees working each day for 20 or more weeks in the current calendar year (or the previous one). Employees of federal, state and local government agencies are also eligible to take advantage of FMLA. Local educational agencies and private elementary and secondary schools do not need to have 50 or more employees for FMLA to be available.

An employee seeking leave under FMLA must have worked for the business for at least 12 months and 1,250 hours.

What Events are Eligible for FMLA Leave?

FMLA allows up to 12 weeks of unpaid leave. Some of the reasons FMLA may be taken are:

  • The birth and care of a newborn child
  • To care for a newly adopted or foster child
  • To care for an immediate family member with a serious health condition
  • A child over age 18 is not covered, unless that person is considered "incapable of self-care because of a mental or physical disability" as defined by the Americans with Disabilities Act.
  • To care for yourself if you have a serious health condition that makes you unable to perform the duties of your position

For the birth or placement of a child, leave may be taken for up to 12 weeks beginning on the date of birth or placement.

What is a Serious Health Condition?

A serious health condition is defined as an illness, injury, impairment, or physical or mental condition that involves "inpatient care" or continuing treatment by a health care provider. For example, cancer, diabetes, surgery and pregnancy difficulties are considered serious health conditions. Employers must offer employees accommodations for serious health conditions so that the employee can keep working.

Can I be Penalized for Taking FMLA Leave?

Employers are not permitted to count FMLA leave against you in any manner. When returning to work at the end of the (up to) 12-week period, you're entitled to be restored to your position you held or an equivalent position unless you can no longer perform the job or same work because of a physical or mental condition.

An exception applies for "key" employees (those who are among the highest paid 10 percent of the business). Key employees do not have to be reinstated to their jobs if FMLA leave will cause "substantial and grievous economic injury" to the business.

What are the Procedures for Taking FMLA Leave?

If you are eligible to take leave under the FMLA, you should:

  • Give your employer 30 days written notice
  • Provide medical documentation
  • Ensure that your health benefits remain active during your leave
  • Determine whether you should use accrued paid leave, such as sick or vacation time. Employers can require employees to use accrued leave before FMLA leave begins.
  • Keep in contact with your employer on your status and intentions regarding returning to work

Employer Obligations under the FMLA

Employers must post a notice approved by the Secretary of Labor explaining rights and responsibilities under FMLA. Employers must also provide information to all employees about the requirements for taking leave and what happens if you decide not to return to work for that employer.

Questions for Your Attorney

  • Does my state have any other requirements for taking leave?
  • Are there any exceptions to the 30 day written notice rule?
  • What could happen if I do not return to work after I take leave under the FMLA?
  • Do I have to keep my employer informed of my intentions about coming back to work?
  • What if my job has been given to a new person and there aren't other positions available?
  • What if I took leave and was terminated while on leave?

Related Resources on Lawyers.comsm

- Employment Law in Your State
- Employees' Wages and Hours FAQ
- Mininim Wage
- Wages and Overtime for the Employer
- Employee Benefits articles and information
- Employees: Selecting a Good Lawyer
- Find an Employeee Benefits lawyer in your area
- Visit our Employment Law message boards for more help

Related Web Links

- Americans with Disabilities Act
- Family Medical Leave Act (FMLA)

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