Labor and Employment

Family and Medical Leave

Family and Medical Leave Act

The Family and Medical Leave Act (FMLA) is designed to help employees balance their work and family responsibilities by allowing them to take a reasonable amount of time away from work to receive medical care and to care for certain family members.

In general, FMLA provides eligible employees with up to 12 weeks of unpaid, job-protected leave during each 12-month period.  During an approved FMLA absence, an employer is required to maintain an employee’s benefits such as health insurance, disability insurance, and sick leave.  This is one of the greatest benefits of the law.


All public agencies, including federal, state, and local governments, as well as all public and private elementary and secondary schools are required to comply with the FMLA.  Most private businesses that employ 50 or more employees are also covered.  Nevertheless, according to a survey conducted in 2000, more than 89% of U.S. businesses are not covered employers, which leaves approximately 33.6 million employees without FMLA rights.  A majority of those employees work in the service and retail industries.  Employees working for a non-covered employer can look to the employer’s policies and to state law for options regarding medical leave.


To be eligible for leave, an employee must have worked for the employer at least 12 months and at least 1,250 hours during the 12-month period immediately preceding the commencement of leave.  Employers should inform employees which method it uses to calculate the 12-month period.  There are four options:

  1. The calendar year
  2. Any fixed 12-month “leave year”
  3. The 12-month period measured forward from the date any employee’s first FMLA leave begins
  4. A “rolling” 12-month period measured backward from the date an employee requests FMLA leave

Most employers use either the calendar year or the rolling year method.

Note that there are special rules relating to school employees and airline flight crews.


Eligible employees can take up to 12 weeks of unpaid leave each year.  FMLA leave may be taken intermittently or on a reduced leave schedule under certain circumstances, such as for one’s own serious health condition; to care for a spouse, parent, son, or daughter with a serious health condition; or to care for a covered servicemember with a serious injury or illness.  Intermittent leave is taken in separate blocks of time due to a single qualifying reason.  Examples include leave taken for chemotherapy or for doctor’s appointments, including chiropractic, physical therapy, and psychotherapy appointments.  Absences related to pregnancy or a chronic serious health condition may qualify for FMLA leave even if the employee does not receive treatment from a health care provider during the absence and even if the absence does not last more than three consecutive full calendar days.

FMLA leave may also be taken on a reduced leave schedule, which is a schedule that reduces an employee’s usual number of working hours per workweek or hours per workday.  An example is an employee who is recovering from a serious health condition and is not strong enough to work the employee’s regular, full-time schedule.


In general, leave may be taken for the following reasons:

  1. For birth of a son or daughter, and to care for the newborn child;
  1. For placement with the employee of a son or daughter for adoption or foster care;
  1. To care for the employee’s spouse*, son, daughter, or parent with a serious health condition;
  1. Because of a serious health condition that makes the employee unable to perform the functions of the employee’s job;
  1. Because of any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a military member on covered active duty (or has been notified of an impending call or order to covered active duty status); and
  1. To care for a covered servicemember with a serious injury or illness if the employee is the spouse, son, daughter, parent, or next of kin of the covered servicemember.

*As of March 2015, the FMLA’s definition of spouse includes individuals in lawfully recognized same-sex and common law marriages.


The FMLA only requires unpaid leave, but the law permits an employee to elect, or the employer to require the employee, to use accrued paid leave, such as vacation or sick leave, for some or all of the FMLA leave period.  When paid leave is substituted for unpaid family medical leave, the paid leave and FMLA leave run concurrently, and the leave time may be counted against the 12-week FMLA leave entitlement if the employee is properly notified of the designation when the leave begins.


There are over 50 regulations clarifying the requirements of the FMLA, and many confusing situations arise when the requirements of the FMLA intersect with the requirements of other laws, such as the Americans with Disabilities Act, the Fair Labor Standards Act, and state workers’ compensation laws.  If you have questions related to the rights and requirements of the FMLA, talk to an experienced labor and employment lawyer in your area.

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