Taking Family and Medical Leave

By Attorney Lisa Guerin, Nolo

Get information about all of the laws and benefits you may be entitled to before taking a leave.

Surveys prove it time and again: We all want more balance between the demands of our jobs and our personal and family needs. The Family and Medical Leave Act, or FMLA, provides some important — but limited — help. This law, passed by Congress in 1993, requires certain employers to give their workers up to 12 weeks off per year to care for a seriously ill family member, deal with their own serious illness, or take care of a newborn or new adopted or foster child. When they return from leave, these workers have the right to be reinstated to the same or an equivalent position. But FMLA leave is unpaid — and that's where, critics say, the law falls woefully short of its goals.

In addition to the federal FMLA, many states have enacted their own family and medical leave laws, some of which cover more workers or provide greater benefits than the federal law. And many employers are picking up where federal and state law leaves off. Because of this often complicated maze of laws, it's important that you gather information on all of the benefits and legal protections that apply to your situation before you take a leave from work.

Federal Law: The FMLA

An employee is entitled to FMLA leave if all three of the following conditions are met:

Number of employees. The employer has 50 or more employees who work within a 75-mile radius. All employees on the payroll — including part-time workers and workers out on leave — count toward the total.
Length of time employed. The employee has worked for the employer for at least 12 months.
Hours worked. The employee has worked at least 1,250 hours (about 25 hours a week) during the 12 months immediately preceding the leave.

Even if you meet all three of these requirements, you can take FMLA leave only for specified reasons. Not every personal or family emergency qualifies for FMLA leave. You must be seeking leave for:

Birth, adoption, or foster care. If you become a new parent or foster parent, you may take FMLA leave within one year after the child is born or placed in your home. You can start your leave before the child arrives, if necessary, for prenatal care or preparations for the child's arrival. If both parents work for the same employer, they may be entitled to less leave.
The employee's serious health condition. The idea is straightforward: You can take leave to deal with your own serious health problem. However, the law defines a "serious health condition" in a specific way. Generally, an employee who requires inpatient treatment, has a chronic serious health problem, or is unable to perform normal activities for three days while under the care of a doctor has a serious health condition.
A family member's serious health condition. You are entitled to take leave to care for a seriously ill family member. However, again, the law defines "family member" quite narrowly. Parents, spouses, and children are included; but grandparents, domestic partners (of the same or opposite sex), in-laws, and siblings are not.

Employers who are subject to the FMLA have certain responsibilities to employees who take FMLA leave. Employers must reinstate most employees to the same or an equivalent position as the one they held before going on leave, provide employees with continued health insurance while on leave, and allow employees to take paid time off (such as vacation and sick time) during unpaid FMLA leave under certain circumstances.

Reinstatement to Your Position

Under the FMLA, you can take up to 12 weeks of unpaid leave in any 12-month period for the reasons listed above. When your leave ends, your employer must reinstate you to the same position you held when you went out on leave or a position equivalent in pay, benefits, and other working conditions, subject to the following:

You have no greater right to reinstatement than you would have had if you had not taken leave. In other words, if your position is legitimately eliminated while you are out on leave, you don't have the right to be reinstated. However, this is true only if the elimination of your job is unrelated to your leave. For example, if you work in the accounting department and your employer decides, while you are on leave, to lay off the entire department and outsource the company's bookkeeping needs, you are not entitled to reinstatement. But your employer cannot eliminate just your position because you were out on leave — that would be retaliation against you for taking leave.
Employers can refuse to reinstate certain highly paid, "key" employees. If (1) you are among the 10% most highly paid of the employer's salaried workforce within a 75-mile radius of your workplace and (2) reinstating you would cause "substantial and grievous economic injury" to the company, your employer can refuse to give you your job back.

Continued Health Insurance

If your employer provides a group health plan, you are entitled to continued health insurance coverage while you are on leave. However, if you decide voluntarily not to return to work when your leave ends, your employer can require you to reimburse it for the health care premiums it paid on your behalf during your leave. (Your employer cannot require this if you cannot return to work after 12 weeks because the serious health condition continued or recurred or because of other circumstances beyond your control.)

Use of Paid Time Off

Although FMLA leave is unpaid, you are entitled to use your accrued paid leave during FMLA leave in certain circumstances. You can always use accrued paid leave that is characterized as vacation or personal leave. And, in certain circumstances, you may substitute accrued sick or family leave for FMLA leave. You can use this type of accrued leave only if the reasons for the leave are covered by your employer's leave policy or state law. For example, you cannot use paid sick leave during FMLA leave to care for an ill family member unless your employer's policy or state law allows employees to take sick leave to care for others who are ill.

In addition, your employer can require you to use accrued vacation days during FMLA leave and accrued sick days if the reasons for the leave are covered by your employer's sick leave policy. For instance, if you take time off to care for a sick family member, your employer can force you to use your accrued sick leave if its leave policy allows you to use sick leave to care for ill family members.

Scheduling and Notice Requirements

The FMLA requires you to give 30 days' notice of the need for leave if it is foreseeable. This is most often the case if you plan to take leave for the birth or adoption of a child or to care for a family member recovering from surgery or other planned medical treatment.

If your need for leave is not foreseeable, you are required to give as much notice as is both possible and practical under the circumstances. If you have a medical emergency, for example, it might not be possible for you to give any advance notice at all, but you should notify your employer as soon as you are able to do so.

Some employees may want to take leave intermittently rather than all at once. If you need physical therapy for a serious injury, for example, or you need to care for a spouse receiving periodic medical treatments such as chemotherapy, you might want to take a few hours off per week rather than 12 weeks at a clip. You may take FMLA leave intermittently for your own serious health condition or that of your child, parent, or spouse when medically necessary. Employers are not required to allow intermittent leave for the birth or adoption of a new child, but they may agree to do so.

State Law and Benefits

Most states have their own family and medical leave law in addition to the federal FMLA. In many states, the law parallels the protections provided by the FMLA. In some states, however, the law provides greater benefits or protections than the federal FMLA. For example, state law may cover smaller employers not covered by the FMLA or employees who have worked for an employer for less time than the FMLA requires, or may provide greater total job-protected time off than the 12 weeks the FMLA provides — especially for women giving birth to newborns, who may be entitled to time off for their own pregnancy disabilities, plus time off to care for their newborn after the birth.

In addition, a handful of states provide some form of wage-replacement benefits for which you can apply while you are on an unpaid family or medical leave from work. Five states (California, Hawaii, New Jersey, New York, and Rhode Island) and Puerto Rico provide temporary disability benefits to workers who are temporarily unable to work due to their own medical conditions, including pregnancy and birth.

California is the first state in the nation to provide comprehensive paid leave benefits — the Paid Family Leave Insurance program, which provides an additional six weeks of partial wage benefits during a worker's unpaid time off to bond with a newborn, newly adopted, or new foster child, or to care for an ill parent, child, spouse, or domestic partner.

Also, many states have laws that allow at least some workers to use their own accrued sick days to care for an ill family member.

Employer Policies and Benefits

Lastly, many employers are now choosing to provide family and medical leave benefits above and beyond what state and federal law requires of them. For example, smaller employers that are not covered by state or federal family and medical leave laws may choose to provide unpaid, job-protected leave anyway, or employers who are required to provide only unpaid leave may choose to provide a certain amount of paid leave for their employees. Be sure not to miss out on any additional benefits your employer provides.

Do Your Homework

Because family and medical leave laws and benefit programs are so varied and complex, it's important that you get complete information about all of the laws and benefits that apply to your situation, including the following:

Federal law. Find out if your employer is covered by, and if you are eligible to receive leave under, the federal Family and Medical Leave Act. For more information on the FMLA, visit the U.S. Department of Labor's website, at www.dol.gov. You can also find helpful information on the FMLA at the website of the National Partnership for Women and Families, atwww.nationalpartnership.org.
State law and benefits. Find out about any additional protections and benefits your state provides. For more information, contact your state labor department, state fair employment department, and the state agency that administers temporary disability benefits if your state has them (for example, California's State Disability Insurance and Paid Family Leave Insurance programs are administered by the state Employment Development Department, which you can visit atwww.edd.ca.gov). The website of the National Partnership for Women and Families at www.nationalpartnership.org also provides state-by-state information on state unpaid leave laws, state paid leave laws, and state paid sick leave laws, including legislative efforts to expand such laws in each state.
Your employer's policies and benefits. Find out about any benefits or policies your employer provides. Look in your employee handbook or manual, read any informational posters posted in your workplace, and/or ask your HR department for any information related to taking a family and medical leave.