What Is FMLA: Family and Medical Leave Explained

What Is the Family and Medical Leave Act?

The Family and Medical Leave Act (FMLA) is a federal law enacted in 1993 that entitles eligible employees of covered employers to take up to 12 weeks of unpaid, job-protected leave per year for certain family and medical reasons. During FMLA leave, the employer must continue the employee's group health insurance coverage under the same terms as if the employee had continued working. When the employee returns, the employer must restore them to their same position or an equivalent position with the same pay, benefits, and working conditions.

The FMLA was a significant advancement in workplace rights, recognizing that employees sometimes face family or health situations that require extended time away from work and that employees should not have to choose between their health or family and their jobs. Before the FMLA, there was no federal guarantee of job-protected leave for serious medical conditions or family care needs, leaving workers vulnerable to termination if they needed extended absences.

The FMLA is administered and enforced by the US Department of Labor's Wage and Hour Division. Employees who believe their FMLA rights have been violated can file a complaint with the WHD or file a private lawsuit. Unlike some employment laws, the FMLA allows individual supervisors and managers — not just the employing company — to be held personally liable for FMLA violations in some circumstances, which is an important enforcement mechanism.

Coverage: Which Employers and Employees Are Covered

Not all employers and employees are covered by the FMLA. Covered employers include private-sector employers with 50 or more employees within 75 miles of the worksite, all public agencies (including state and local governments and public schools), and all schools — public and private. The 50-employee threshold has been a persistent criticism of the law, leaving workers at many small businesses without FMLA protection.

To be eligible, employees must have worked for their employer for at least 12 months (not necessarily consecutively), have worked at least 1,250 hours during the 12 months before leave begins, and work at a location where the employer has at least 50 employees within 75 miles. Employees who have not met these requirements — such as relatively new employees or part-time employees who work fewer hours — are not entitled to FMLA leave, though some state family and medical leave laws have more generous eligibility requirements.

Calculating the 12-month period and hours worked correctly matters both for eligibility and for determining how much leave has been used. Employers may use one of four methods to calculate the 12-month FMLA year: calendar year, any fixed 12-month period, the 12 months beginning with the first day of FMLA leave, or a rolling 12-month period measured backward from the date leave is used. The rolling period method is most commonly chosen by employers because it prevents employees from taking up to 24 consecutive weeks of FMLA leave.

Qualifying Reasons for FMLA Leave

Leave under the FMLA must be taken for a qualifying reason. The major qualifying reasons are: the birth of a child and bonding with the newborn within the first year; adoption or foster placement of a child and bonding 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 the employee unable to perform essential job functions; and qualifying exigencies arising from a covered family member's military service.

A serious health condition is a key concept. It means an illness, injury, impairment, or physical or mental condition involving either inpatient care or continuing treatment by a health care provider. The continuing treatment standard covers conditions requiring treatment by a health care provider twice within 30 days, conditions requiring a regimen of continuing treatment, chronic conditions that continue over an extended period (like asthma, diabetes, or epilepsy), permanent or long-term conditions (including Alzheimer's and terminal illness), and conditions requiring multiple treatments such as chemotherapy or dialysis.

Common conditions that qualify as serious health conditions include cancer, heart disease, back conditions requiring extended treatment, mental health conditions like severe depression or anxiety requiring ongoing treatment, and chronic conditions like migraines, diabetes, and asthma. Ordinary illnesses like colds and flu generally do not qualify unless complications develop that meet the serious health condition definition. Pregnancy-related conditions qualify during pregnancy and after childbirth, making FMLA a key protection for pregnant employees and new parents.

Military Family Leave Provisions

The FMLA includes two special provisions for military families. Qualifying exigency leave allows eligible employees to take up to 12 weeks for certain purposes related to a covered military member's deployment to a foreign country, including childcare and school activities, financial and legal arrangements, counseling, and post-deployment activities. Military caregiver leave allows eligible employees who are the spouse, child, parent, or next of kin of a covered servicemember to take up to 26 weeks in a single 12-month period to care for the servicemember's serious injury or illness.

These military family leave provisions reflect the particular challenges that military deployment creates for families and the importance of supporting caregivers of wounded service members. The 26-week military caregiver leave is the longest job-protected leave available under the FMLA and can be a critical resource for families of service members recovering from combat injuries or illness.

The definitions of covered servicemember and serious injury or illness for military leave purposes are broader than the serious health condition definition for non-military leave, covering current members of the regular Armed Forces, National Guard, and Reserves, as well as veterans who were members of the Armed Forces at any time during the five years preceding the leave.

Taking FMLA Leave: Notice and Certification

Employees must provide notice of the need for FMLA leave. When the need is foreseeable (such as planned surgery or the anticipated birth of a child), employees must give at least 30 days advance notice when possible. When the need is unforeseeable, employees must notify the employer as soon as practicable — generally the same or next business day. Notice need not explicitly invoke "FMLA" — providing enough information to indicate that the leave may be FMLA-qualifying triggers the employer's responsibility to notify the employee of their FMLA rights.

Employers may require medical certification from the employee's health care provider supporting the need for leave. Certification must be returned within 15 calendar days (or as soon as reasonably possible). Employers may contact the healthcare provider to clarify or authenticate the certification (through HR or a health care provider, not the supervisor). If the employer doubts the certification, it may require a second opinion at its expense; if the opinions conflict, it may require a third opinion from a mutually agreed-upon provider, whose opinion is final.

Leave may be taken continuously (all at once), intermittently (in separate blocks of time), or on a reduced leave schedule (a reduction in the normal weekly or daily work schedule). Intermittent FMLA leave is one of the most practically important and challenging aspects of the law — employees with chronic conditions like migraines, asthma, or depression may take leave in small increments, sometimes as little as one hour at a time. Employers must track FMLA leave carefully and may transfer employees using intermittent leave to alternative positions with equivalent pay and benefits that better accommodate recurring periods of leave.

Employee Rights and Employer Obligations

While on FMLA leave, employees cannot be required to work (though they may choose to check in voluntarily). Accrued vacation, sick leave, or PTO may run concurrently with FMLA leave, meaning employees may be paid during FMLA leave from their accrued paid leave balances. Employees on FMLA leave continue to accrue benefits under the same terms as other employees on leave.

The anti-interference and anti-retaliation provisions of the FMLA are critically important. It is illegal for employers to interfere with, restrain, or deny FMLA rights, or to discriminate or retaliate against employees for exercising FMLA rights. An employer cannot count FMLA absences against an employee in an attendance policy, deny promotion because of FMLA use, or subject an employee to heightened scrutiny because of FMLA leave. Proving FMLA retaliation requires showing that the protected leave was a motivating factor in the adverse action, and timing (adverse action shortly after FMLA leave) is often significant evidence.

Many states have enacted their own family and medical leave laws that provide additional protections — broader coverage (including smaller employers), longer leave periods, additional qualifying reasons, or partial wage replacement. California, New Jersey, New York, Washington, Massachusetts, Oregon, Connecticut, Colorado, and other states have paid family and medical leave programs funded through payroll deductions that provide wage replacement during otherwise unpaid FMLA leave. Understanding the interaction between federal FMLA rights and applicable state law is important for both employees and employers seeking to comply with all applicable requirements.