FMLA Explained: 12 Weeks of Leave, Covered Employers, and Abuse

Forty-One Million Americans Used FMLA Leave in 2023

President Clinton signed the Family and Medical Leave Act into law on February 5, 1993 — his first piece of legislation. After seven years of failed attempts to pass federal medical leave legislation, FMLA established a baseline right that previously did not exist in the United States: job-protected, unpaid leave for serious health conditions. The Department of Labor estimates that approximately 41 million FMLA leaves were taken in 2023, covering childbirth, cancer treatments, surgery recovery, and care for ill family members. Despite its reach, FMLA excludes roughly 44% of private-sector workers from coverage due to employer size and individual eligibility requirements.

Who Is Covered: Employer and Employee Eligibility

Two tests determine FMLA eligibility — the employer must be covered and the individual employee must qualify.

Covered employers are those who employ 50 or more employees for at least 20 workweeks in the current or preceding calendar year. Part-time workers count toward the 50-employee threshold. The 50 employees within a 75-mile radius requirement applies to the employee's eligibility specifically — an employer with 60 total employees but only 40 within 75 miles of a particular worksite does not have to provide FMLA leave to employees at that site.

Eligible employees must have:

• Worked for the covered employer for at least 12 months (need not be consecutive — a seasonal worker counts if rehired)
• Worked at least 1,250 hours during the 12 months immediately preceding the leave
• Worked at a site where the employer employs 50 or more employees within 75 miles

Qualifying Reasons for FMLA Leave

FMLA provides up to 12 workweeks of unpaid leave per year for specific qualifying reasons. A 14th week of military caregiver leave exists separately — up to 26 weeks in a single 12-month period for a covered servicemember with a serious injury or illness.

• Birth of a child and caring for the newborn within the first year
• Placement of a child for adoption or foster care within the first year
• Caring for a spouse, child, or parent with a serious health condition
• The employee's own serious health condition that makes them unable to perform their job
• Qualifying exigency related to a family member's military service (foreign deployment)

Defining "Serious Health Condition"

The most disputed element of FMLA eligibility. A serious health condition is an illness, injury, impairment, or physical or mental condition involving inpatient care or continuing treatment by a healthcare provider. The regulation defines "continuing treatment" to include incapacity of more than three consecutive calendar days plus two or more treatments by a healthcare provider within 30 days, or at least one treatment that results in a regimen of continuing treatment. Common colds, flu (absent complications), cosmetic treatments, and routine physical exams do not qualify — unless they involve complications requiring physician-ordered treatment.

Intermittent Leave and the Abuse Problem

Intermittent leave is FMLA leave taken in separate blocks of time or by reducing the normal work schedule for a single qualifying reason. It is medically legitimate — a cancer patient needs days off for chemotherapy; a parent with a chronically ill child needs periodic leave for medical appointments. It is also the most administratively challenging and most contested form of FMLA leave.

Employers have long complained that intermittent leave is disproportionately clustered around Mondays and Fridays, around sporting events, and around denied vacation requests. The Department of Labor's surveys have confirmed some degree of manipulation. Employers' remedies are limited:

• Require medical certification and recertification (every 30 days, or every six months for chronic conditions)
• Request second or third opinions from independent healthcare providers (employer pays)
• Transfer an intermittent leave user to an equivalent position with equivalent pay that better accommodates recurring leave
• Require employees to follow normal call-in procedures for unforeseeable leave, unless FMLA physically prevents notification

What employers cannot do: count FMLA-protected absences in attendance records used to discipline or terminate employees. Disciplining an employee for an FMLA-protected absence is retaliation. Several courts have held that even denying a bonus tied to perfect attendance violates FMLA if the employee used FMLA leave during the period.

This article is for informational purposes only and does not constitute legal advice.