Family & Medical Leave Act (FMLA)

Under the federal Family & Medical Leave Act (FMLA), if you work for an employer with 50 or more employees, you may be eligible to take unpaid leave to take care of family and medical responsibilities. In order to be eligible for FMLA leave, you must have worked for your employer for at least 12 months and for a minimum of 1,250 hours during the 12 months right before your requested leave.

If you are eligible, you have the right to take up to 12 weeks of unpaid leave from work within a 12 month period. Family and medical responsibilities can include births, illnesses, or other serious health conditions that you or a family member may have that prohibit you from performing the essential functions of your job. Serious illness does not include things like a cold or flu; outpatient surgery; elective or cosmetic surgery; routine dental or orthodontist appointments; or minor infections. However, it does include time you need to take care of your spouse, child or parent with a serious health condition. In 2015, regulations changed the definition of “spouse” under the FMLA so that eligible employees in legal same-sex marriages will also be able to take FMLA leave to care for their spouse or family member.

Under federal law, during most FMLA absences, your employer must keep up your health insurance/coverage and is not allowed to fire you. Your employer may not punish you or harass you for asking for or taking leave under the FMLA. Your employer cannot place undue burdens on your return to work. When you get back to work, you have the right to your old job back as long as you are medically able to do it. If your old job is no longer available, you have the right to be given an equivalent job or one that is nearly identical with substantially similar responsibilities, duties and status.

Employers usually violate the federal FMLA in the following ways:

• By not allowing you take a leave;
• By creating an undue burden on returning to work;
• By not allowing you to return to similar work; and/or
• By discriminating against you for exercising your rights under the FMLA.

While each case has different facts, here are some examples where an employer may be violating the FMLA laws:

• Because of a back condition, you become addicted to prescription painkillers. Your doctor believes it’s medically necessary for you to enter rehab for three weeks. Your employer does not let you take unpaid leave under FMLA because your addiction was “your own fault.”
• You and your wife work for the same employer and she has just given birth after a difficult pregnancy and is on eight weeks of FMLA leave. You ask for two weeks off at the beginning of her leave to help care for her and your newborn child. Your employer says no.
• After your FMLA leave, your employer lets you keep your job title as Account Manager, but only gives you simple administrative tasks.
• You request time off to take care of an elderly parent, but your employer does not advise you that you are eligible for FMLA leave.

Legal Editor: Albert Rizzo, February 2015 (updated June 2020)