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Introduction to The Family and Medical Leave Act of 1993 (FMLA)


The Family and Medical Leave Act of 1993 (FMLA) protects the jobs of eligible employees who wish to take unpaid time off from work in order to:

  • treat or recover from their own serious medical condition;
  • care for a seriously ill child, spouse, or parent (though not an in-law); or
  • spend time with a newborn baby or newly adopted child.

Under the FMLA, a “serious health condition” means an illness, injury, impairment, or physical or mental condition that involves either inpatient care in a hospital, hospice, or residential medical-care facility, including any period of incapacity or subsequent treatment in connection with such inpatient care; or continuing treatment by a health care provider. If you are incapacitated for a period of three days or more, have sought medical treatment for the condition at least once, and are under an ongoing treatment regimen, the condition will most likely qualify.

Eligible employees may take a maximum of 12 weeks of protected, unpaid medical or family leave per year. The leave may be continuous or intermittent (i.e. brief leave time taken every so often, if medically necessary). The law stipulates that the employer must return the employee to his or her position, or to a position that is equivalent in pay, benefits, working conditions, and seniority, at the end of the leave.

Who is Covered by the FMLA?

Several important restrictions limit the coverage of employees under the FMLA. In order to qualify for a protected family or medical leave:

  • Your employer must have 50 or more employees within a 75 mile radius of your job site (including part-time employees and those on leave);
  • You must have been employed by your company for at least twelve months; and
  • In those twelve months, you must have worked at least 1,250 hours for the employer.

Requesting FMLA Leave

If you are qualified and wish to take leave, the FMLA requires you to notify your employer at least 30 days in advance if the need for leave is foreseeable (for example, if you have a surgery scheduled or are pregnant and wish to take time off after giving birth), or “as soon as practicable” (i.e. within one or two business days) if the need for leave is unforeseen.

You must also provide the employer with enough information for them to understand that the leave is needed for an FMLA-qualifying reason. The employer is permitted to require a doctor’s certification to confirm the need for leave. They may also require you to seek a third-party opinion at the employer’s expense, periodically recertify your leave, or provide periodic updates during your leave regarding your status and ability to return to work.

You may request to use accrued paid vacation or sick time as part of your FMLA-protected leave. In addition, the employer is permitted to require you to use this time as part of your leave.

How to Request Leave

You should, but are not required to, use the magic words “I want family/medical leave”. If you told the correct person at your employer that you are sick or need to care for a family member, your employer was on notice and should have offered the leave to you. Even if you did not use those exact words, you should still contact an FMLA attorney if you requested time off to treat a medical condition (or to attend to a family member’s medical condition) and were fired, demoted or otherwise retaliated against in any way.

Common Violations

Some common violations are:

  • Not allowing qualified employees to take FMLA leave.
  • Firing an employee after learning about the employee’s medical condition before he or she is able to request FMLA leave.
  • Disciplining or firing employees for taking leave. This often comes in subtle forms, such as counting time off against an employee, giving an employee a bad performance review based on work that wasn't completed because of the employee's leave, and so on.
  • Failing to continue health insurance. Some employers cut off employee insurance prematurely. If an employee is more than 30 days late in making a premium payment, the employer must give the employee written notice and an additional 15 days to make the payment before cutting off coverage.
  • Hounding or pressuring employees who are on leave. Employers have the right to request periodic status reports while employees are on leave. However, employers may not put pressure on an employee to return sooner that the employee planned, excessively check up on an employee to the point of harassment, or require an employee to provide detailed information beyond what the FMLA allows.
  • Reinstating an employee to a lesser position. If the employee's former position isn't available, the employer may give the employee an equivalent position. A position is equivalent only if it is virtually identical to the employee's former position in pay, benefits, duties, site, shift, schedule, and so on.
  • Postponing reinstatement. An employee must be reinstated immediately, after giving two days notice. Employers cannot force employees to wait for their position to open up or for the employer to shift schedules and job duties.
  • Failing to reinstate benefits. An employee may not be required to take a physical, wait for open enrollment, or otherwise requalify for coverage. If any automatic raises occurred while the employee was on leave (such as a cost of living increase), the employee is entitled to that as well.
  • Misclassifying the employee as a “key employee.” Employers aren't required to reinstate key employees (employees who are among the highest-paid 10% of employees within 75 miles), but only if reinstatement would cause substantial and grievous economic injury to the company. Key employees are entitled to take FMLA leave. Some employers refuse to allow key employees to take FMLA leave, or classify employees as "key" if giving them time off would be a hardship for the company. This isn't the test, however: An employee is "key" only if reinstatement would cause the injury.

Contact The Durst Law Firm for Help with FMLA Issues

If you believe your employer has violated the FMLA, or if your business is confronted with an FMLA issue, contact us at (513) 621-4999 to learn about your rights and options.