Your Rights Under the Family and Medical Leave Act

Protecting Your Job When You Need Time Off for a Family or Medical Matter

Family and Medical Leave Act OverviewIt’s inevitable that times arise when you need time off from work to attend to a family matter. Maybe you or a spouse is facing medical issues, or you’re expecting a child and want to stay home with the baby for the first few months of their life. But what if you haven’t accumulated enough sick time and paid leave to take off as much time as you need, and you can’t risk losing your job? There’s good news—a federal law known as the Family and Medical Leave Act (“FMLA”) allows you to take unpaid leave and have your job protected until you return.

What Is the FMLA?

Enacted in 1993, the FMLA grants a qualified worker the right to take up to 12 weeks of unpaid leave without concern about losing their job. A worker may take one 12-week leave during any qualifying 12-month period.

History of the FMLA

In 1984, a national organization known as the Women’s Legal Defense Fund, put together an initial draft of the law that would ultimately become the FLMA. Legislators who supported the statute introduced a bill to Congress every year for the next nine years. It was finally passed by both houses in 1991 and again in 1992, only to have the bill vetoed both times by President George H.W. Bush. Congress passed the FMLA again in 1993, and newly-elected President Bill Clinton signed it into law.

The Goals of the FMLA

The impetus behind the introduction and enactment of the FMLA was a desire by legislators and proponents to give workers a better work-life balance, allowing them to take time off from their jobs to attend to important medical and other family issues without fear of losing their ability to provide for their families. Proponents of the bill also believe it facilitates equal employment opportunities for men and women.

Studies indicate that when employers participate in programs like the FMLA, they are able to attract more qualified employees. In fact, data suggests that employers who offer paid medical or family leave typically have less turnover and more desirable candidates for open positions.

Employee Rights Under the FMLA

Under the FMLA, a qualified employee may take up to 12 weeks off during a 12-month period for any of the following reasons:

  • The birth of a child and/or care of a newborn under the age of 12 months (either spouse is eligible)
  • The care of a spouse, child, or parent who is suffering from a serious health condition
  • A serious health condition that prevents the employee from performing essential tasks of their job
  • An adoption or foster care placement of a child under 12 months of age with the employee
  • Any “qualifying exigency” that stems from the fact that the employee’s spouse, child, or parent is a covered member of the U.S. Armed Forces on active duty

An employee may take up to 26 weeks during a 12-month period, if necessary to care for a spouse, child, parent, or next of kin who has suffered serious injury or illness as a covered military servicemember.

The worker has a right to receive all fringe benefits during the unpaid leave that would have been conferred had the employer not taken the leave.

When the unpaid leave is over, the employee has the right to return to their job, unless they were in the top 10% of highest paid workers at the company and the employer can show that allowing the employee to return to their job would cause “substantial and grievous economic injury” to the company. In general, the employee has a right to return to the same position they had before the leave. If that position has necessarily been filled, the employee has a right to a position that is substantially equivalent in pay, responsibilities, and benefits. Furthermore, an employer may not engage in any retaliatory conduct because a worker has taken FMLA leave.

Individual states may have their own mini-FMLAs, which may provide more protection or benefit for employees than the federal FMLA. You may wish to consult with an employment attorney to determine whether you are eligible for protections under a state FMLA.

Duties of an Employee Under the FMLA

An employee must, whenever possible, provide at least 30 days’ notice to an employer of the need for FMLA leave. In emergency situations, the employee must provide notice as soon as practicable and must adhere to any established call-in practices at the company.

Furthermore, the employee must provide the employer with sufficient factual data to help the employer confirm eligibility for FMLA leave, as well as the timing and duration of the unpaid time off. The employee must advise the employer if the requested leave is for any reason for which FMLA leave has previously been taken. If requested by the employer, the employee must also provide medical certification or documentation to support the leave.

Qualifying for Leave Under the Act

The FMLA does not apply to all workers. To qualify for unpaid leave under the act, an employee must:

  • Work for a company with more than 50 employees within a 75-mile radius, unless the employee works for a public agency or local educational agency; and
  • Have worked at least 1,250 hours for the employer over the past 12 months.

The FMLA does not apply to employees who request time off to care for sick elderly family members (other than parents) unless the sick person was acting as a parent to the worker when they became 18 years of age. FMLA leave is not available for routine medical care, or for short-term illnesses such as the flu or a common cold. A worker does not qualify for FMLA leave to care for a sick pet.

Violation of Your Rights Under the FMLA

The provisions of the FMLA are enforced by the Wage and Hour Division of the U.S. Department of Labor. An initial complaint alleging that an employer has violated the FMLA must be filed with Wage and Hour officials, who may conduct an investigation. If the Department of Labor finds violations, it may ask the employer to reinstate the employee or take other remedial actions. If the employer refuses to comply, the Department of Labor can file legal action to compel compliance. In addition, an employee may file a civil lawsuit seeking damages and reinstatement.


The FMLA protects the rights of certain workers, allowing them to take up to 12 weeks of unpaid leave during any 12-month period for a number of personal medical or family emergencies. A qualified worker has the right to have their old job back or be placed in a position with substantially similar pay, benefits, and responsibilities.

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