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How Does FMLA Work?

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Marissa is the writer of ThePracticalMommy and the blog Mommy Knows What's Best. She is a stay-at-home mom to four and was a teacher.

Family and Medical Leave Act, also known as FMLA

Family and Medical Leave Act, also known as FMLA

What Is FMLA Law?

In 1993, the U.S. Department of Labor, specifically the Wage and Hour Division, began enforcing FMLA, the federal Family Medical Leave Act. This law was for all eligible employees—of companies, businesses, and institutions that were covered under the law—who needed to take off an extended period of work due to certain medical and family circumstances.

Before this law, employees and their jobs were not protected should a need arise for them to leave their job for medical or family circumstances. Jobs and benefits were often lost if the employers did not provide other leave provisions, leaving employees penniless and unable to care for their families.

Am I Eligible for FMLA?

FMLA works by protecting employees from losing their jobs and benefits if the employee needed a legitimate extended leave of absence from work.

FMLA provides the following for eligible employees:

  • 12 weeks of unpaid leave within 12 months. Job will be protected for 12 weeks and benefits will continue.
  • Unpaid leave of absence. Leave can be for birth, adoption, a sick family member (spouse, son, daughter or parent with serious health issue), serious health condition of the employee that makes the employee unable to work, or to care for a spouse, son, daughter or parent who was injured or became ill while on active duty in the National Guard or Reserves
  • Protection of job and benefits for employees of companies, businesses, or institutions with 50 workers within a 75-mile radius. For example, if you work in a school with only 30 employees, but the main district located 15 miles away has 20 employees, you would still be covered under FMLA since the total number of employees is 50.

FMLA for Family Member on Active Duty

If you are caring for a family member who is on active duty or can be called to active duty in the Armed Forces, National Guard or Reserves, you are entitled to 26 weeks of unpaid work leave under amendments of FMLA made in 2008-2010.

What Does FMLA Cover?

Serious Health Conditions

Under the law, a serious health condition is any illness, injury or medical condition which prohibits the employee from completing his/her job by making the employee spend time in a medical facility (hospital or treatment center) or under the care of a physician for continuous treatment. For a family member, the serious health condition must prohibit that person from attending school or other daily activities.

Pregnancy and birth are covered under this definition, as are chronic health issues such as diabetes, asthma, stroke, and terminal diseases. Also, any treatments such as chemotherapy or physical therapy are covered.

Under FMLA, eligible employees are guaranteed a job, benefits, and the same level of pay upon return.

Under FMLA, eligible employees are guaranteed a job, benefits, and the same level of pay upon return.

FMLA Guidelines

To be eligible, employees must:

  • Have worked for at least one year, with 1,250 hours worked in that year.
  • Provide notice to employers 30 days in advance of leave.
  • Not be a 'key' employee (i.e., someone who is a highly-paid employee whose absence would cause major economic issues for a company or business).

FMLA Regulations

Employers are required to:

  • Let an employee know if he/she is eligible under FMLA.
  • Give reasons why an employee might not be eligible under FMLA.
  • Post the Employee Rights and Responsibilities Under the Family Medical Leave Act guide poster in a visible place within the buildings of the company, business or institution.
  • Explain FMLA and other relevant company policies to employees.
  • Provide any health benefits and other benefits that would be given, as it is to people on disability. This includes health insurance for the family of the employee.
  • Keep a job for the employee for 12 weeks. If the employee's position had to be filled, then a position with the same pay and same level will be given to the employee upon return.

FMLA Intermittent Leave

If an employee does not need to be absent from work for a full 12 weeks at one time, he/she is able to take an intermittent leave, which can be a few weeks at a time until they total 12 weeks. An intermittent leave can be taken as a reduced work schedule as well, as long as it is medically necessary and the employee has made every effort to plan accordingly for medical treatment or doctor's visits.

School Employees and FMLA

Special limitations exist for public or private school employees who wish to take family or medical leave. It mostly pertains to when those employees want to take the leave or return from the leave.

If a school employee needs to take a leave near the end of an academic term, the school district may ask the employee to stay out of work until the term is over. If the employee is a teacher, this may be due to the fact that a substitute had been hired to complete the job and the students should have one steady person teach to keep the continuity of the lessons. Switching teachers too close to the end of the term or semester may be distracting to students who may need to focus on end of semester tests or finals.

When Does FMLA Start?

Family and medical leave can be taken for any 12 weeks within a 12 month period.

FMLA starts on the day designated by the employee and employer as the first day of leave. This is true in most cases when the employee gives the employer a written request thirty days in advance.

For example, for the impending birth of my daughter, in early November of 2010 my employer and I decided on January 1, 2012 as the day when my maternity leave would begin, which was more than 30 days in advance but fell within the guidelines.

If an employee is not able to give the written request thirty days in advance, then the leave begins immediately when the employee is unable to go to work. This can only occur if something unexpected happens, such as premature birth, sudden serious illness of a family member (spouse, child or parent of employee), or sudden serious illness of the employee. Leave will be counted from the first day that the employee is unable to go to work.

For example, when I went into labor early with my daughter, the first day of my leave became December 21st instead of the first of January, and my employer had no issue with that under FMLA.

Note: If 12 weeks of leave have been used by the employee, then the next eligible time period for FMLA begins twelve months after the prior leave has ended. In other words, the employee needs to work for at least 12 months and 1,250 hours before he/she is eligible for FMLA again.

Maternity leave is covered under FMLA.

Maternity leave is covered under FMLA.

When Should I Tell My Boss I'm Pregnant?

Deciding to tell your boss and co-workers about your pregnancy can be a bit tricky. A common standard would be to wait until at least your second or third month, when the possibility of having a miscarriage has passed.

It's best if your boss or employer knows first, before your co-workers, because it's something you should announce yourself. Depending on how close you are with your boss or employer, you can tell him/her in your third month and then follow all other procedures for FMLA later on in the pregnancy. If you feel uncomfortable telling your boss or employer about your pregnancy that early, you can wait until you are showing and let them know of your intentions of maternity leave later on in the pregnancy.

You can tell your co-workers after you have spoken to your boss or employer. Remember: neither your boss nor your co-workers can discriminate against you due to the pregnancy. Your job and duties should remain the same until you can not perform them or you have other complications. It is up to you and your doctor whether or not you should still perform certain duties, like lifting heavy objects, or being around chemicals, etc.

Maternity Leave Rules

If an employee is pregnant and working, she can be covered under FMLA and maternity leave if the following conditions are still true:

  • The employee has worked for the company, business or institution for at least 12 months and 1,250 hours in the 12 months.
  • The employee works for a company, business or institution with at least 50 employees within a 75 mile radius.

An employee cannot be denied FMLA because of the pregnancy thanks to the Pregnancy Discrimination Act of 1978. That act protects pregnant women in the workplace from unfair treatment due to pregnancy, which includes unfair practices pertaining to leave of absence.

Once an employee makes the employer aware of the pregnancy, the employer can initiate the FMLA process by providing information about the law and other relevant policies, although that is not required until the thirty day notice is given by the employee.

After verbal notice is given to the employer about maternity leave, the employer will ask the pregnant employee for certification from the employee's doctor stating the reason why the employee can't work, which is giving birth and caring for a child. The doctor basically signs a form with information about any duties the employee might not be able to do, any complications the employee might encounter, and the approximate due date of the baby.

Pregnancy Complications

If the employee experiences pregnancy complications, such as bed rest, or other pregnancy related issues that would prohibit the employee from completing her duties, any time away from work can be counted towards family and medical leave. For example, if the woman needs to be on bed rest for the last two months of pregnancy and cannot work, those two months (eight weeks) can be deducted from the standard twelve weeks of FMLA time. Therefore, after the birth of the baby, the employee would have a remaining four weeks to care for her child under FMLA.

Questions about FMLA

Questions about FMLA

Frequently Asked Questions About FMLA

  • What exactly is 'giving notice'? In order to take extended family and medical leave, you must have verbal contact with your employer. Once you say that you may need leave for yourself or a family member, your employer will start the process of FMLA. Calling in 'sick' does not work for FMLA as it does not specifically meet any of the employer requirements for starting the process.
  • Can I take leave for the care of an in-law? No. FMLA does not cover care of an in-law.
  • Can I take leave to care for my 20 years old son? No, unless he is incapable of caring for himself due to a physical or mental disability.
  • Am I limited in how I spend my time off from work? No, unless it is deemed no longer necessary to be on leave OR if you fail to provide certification that the leave is necessary. That's not to say that you can go on a vacation or a cruise. As my boss once told me, "If I see you on TV for a game show, I know you no longer need to be at home". You can go shopping, visit friends and family, go out for dinner or anything you would be able to do while still caring for yourself or your family.
  • Can my boss ask me questions about my leave? The only thing your employer can ask you is for certification that the leave is still needed. He/she cannot ask you for medical records or how you are spending your time off.
  • Can I still get bonuses? If you earned bonuses prior to the leave, then upon returning to work you can still receive the bonuses. You do not earn towards bonuses while on FMLA as there are no special allowances for that.
  • Am I still required to do any work when I am at home? No, you are not required to do any work. That isn't to say if your employer calls or emails you for details needed for someone else to complete a task that you should ignore him/her. When I was on maternity leave, I stayed in contact with my substitute and parents to help out, but it was not required of me.
  • Am I allowed to take FMLA as a new dad? Absolutely! Fathers can take FMLA to help care for their newborns. Some call that 'Paternity Leave' which isn't as common as maternity leave, but fathers are entitled to leave just as much as mothers. In fact, fathers can take FMLA for any child under 18 who needs full-time care at home for a serious illness.
  • My wife and I work at the same company. Does that mean we get 24 weeks family and medical leave under FMLA? No. Spouses who work at the same company can take a combined twelve weeks of unpaid leave.
  • Can I take leave for more than 12 weeks? It depends on your state's FMLA laws and any company policies in place for leaves. When I took maternity leave for the birth of my daughter, I was able to take the twelve weeks FMLA afforded me plus additional time up to a year afforded to me by our school's policies.
  • I have no intent to return. Do I need to inform my employer? Yes. If you have no intent to return to your job, you must inform your employer before the end of your leave. That way, arrangements can be made for a replacement in your position. If you do not give your notice of resigning, you can be fired and possibly held accountable for any benefits given to you while on leave. Make sure to follow all company policies about resigning if you want to remain in good standing.
  • What do I do if I believe my FMLA rights were violated? If you feel that any of your FMLA rights were violated by your employer, you have the right to file a complaint with the Secretary of Labor or file a private lawsuit (as per Section 107 of FMLA) within two years of the infraction.
  • I didn't give 30 days notice for my FMLA. Can I be fired? If you didn't attempt to give sufficient notice beforehand or didn't give notice within a few days after you took the leave, then yes, you can be fired. Of course, if an emergency comes up and you need to leave immediately, you can notify your employer as soon as you're able. If you do not give 30 days notice and there is no emergency, then your employer can hold you at your job until 30 days have passed and then grant you your leave.

FMLA Resources

Who Does FMLA Apply To?

For each question, choose the best answer. The answer key is below.

  1. Company A: Philadelphia, PA w/ 25 employees. Division of Company A: Reading, PA, w/30 employees, 65 mi. away. Eligible?
    • Yes. There are 50 employees within a 75 mile radius.
    • No. They are too far away and not in the same building.

Answer Key

  1. Yes. There are 50 employees within a 75 mile radius.

What is covered under FMLA?

For each question, choose the best answer. The answer key is below.

  1. I have been sick with a serious case of a stomach virus and out of work for two days.
    • Not covered under FMLA.
    • Covered under FMLA.
  2. My husband has been diagnosed with cancer and needs me to take him to his treatments every week.
    • Not covered under FMLA.
    • Covered under FMLA.
  3. I am going to adopt a baby from another country.
    • Not covered under FMLA.
    • Covered under FMLA.
  4. My son's doctor is only available during my work hours.
    • Not covered under FMLA.
    • Covered under FMLA.

Answer Key

  1. Not covered under FMLA.
  2. Covered under FMLA.
  3. Covered under FMLA.
  4. Not covered under FMLA.

This content is accurate and true to the best of the author’s knowledge and is not meant to substitute for formal and individualized advice from a qualified professional.

Questions & Answers

Question: Can you just take FMLA leave randomly through the year?

Answer: FMLA needs to be approved prior to the absence (with few exceptions). You need to speak with your HR representative.

Question: Why would my employer refuse me FMLA?

Answer: I suggest speaking to your HR department. If your request does not fall within the regulations, it can be denied.

Question: Can I call off from work using FMLA?

Answer: FMLA is usually a pre-approved absence from work. Contact your HR department.

Question: What if I have leave before I use my FMLA? Does the FMLA start after I use all of my leave?

Answer: That's a question to ask your HR department.

Question: I have back issues and go to therapy for it. Would this qualify for FMLA?

Answer: Your best bet is to talk to your HR department to see if you qualify.

© 2012 Marissa


Marissa (author) from United States on May 27, 2012:

Sharyn, thank you so much for your comment! I'm glad someone with experience in FMLA finds the hub useful. :) I am pretty well versed in the process since I had two kids while working, but I did do my research to cover everything. It can be difficult to understand some of the aspects of the law, so I wanted to make sure that anyone who found this would have all of their questions answered.

Thanks again for reading and commenting!!

Sharon Smith from Northeast Ohio USA on May 26, 2012:

This is an excellent hub Marissa! You've covered everything plus! Extremely well researched. Many years ago, I worked in HR and had to learn about the new FMLA and be able to answer questions for employees. I love the layout of your hub ending with the frequently asked question. Great job!