Family Medical Leave Act (FMLA)

Family And Medical Leave Act (FMLA) Overview

The Family and Medical Leave Act (FMLA) is a federal law that provides job protected leave for the birth or placement of a child and for leave related to serious medical conditions.  In addition, FMLA also provides for military leave benefits under specific circumstances.  There are many factors that determine if a particular employee is eligible for FMLA leave, which include the size of an employer, how long an employee has worked for the employer and also the particular type of leave within FMLA leave that is needed.  This overview is intended to be general in nature and is not intended to cover all aspects of the Family Medial Leave Act and its applications.

Covered Employers

In general, the Family or Medical Leave Act only applies to employers with 50 or more employees. There are a few exceptions to this general rule which are not discussed here.  Employers who do meet the criteria discussed above are referred to in the law as “covered employers”.  Smaller employers who employ les than 50 employees do not have to comply with the requirements of FMLA.  Likewise, employees who do not work for a covered employer do not receive the benefits and protections that the Family and Medical Leave Act offers. 

Eligible Employees

If an employee works for a covered employer as described above, the employee must also meet the requirements of establishing himself or herself as an “eligible employee” pursuant to the requirements of the Family and Medical Leave Act.  In order to be eligible for FMLA benefits, the employee must have worked for the employer for at least 12 months and during the 12 months preceding the request for FMLA leave, the employee must have worked at least 1,250.00 hours.  Thus, for new employees or those that work on a part-time basis, FMLA is generally not available.

Types of Leave Provided under FMLA:

FMLA leave may be taken by eligible employees for the birth or adoption (placement) of a child, for the employee’s own serious medical condition or that of a family member and also for various reasons associated with military leave.  In order to take FMLA leave for a serious medical condition, there are specific documentation and medical certification requirements that must be met.  Not every illness will qualify as a serious medical condition, although most longer-term types of illness that last more than a few days and require multiple treatments by a medical provider will qualify as serious medical conditions.  In addition, serious medical conditions that require hospitalization will automatically qualify for FMLA leave assuming the employee works for a covered employer and is eligible for leave as described above.

What does FMLA provide for eligible employees

FMLA gives eligible employees the right to take up to 12 work weeks of unpaid, job protected leave for the reasons noted above.  In the case of a birth or adoption, the right to take the full amount of allowable leave (up to 12 weeks) is automatic and the amount of leave taken is at the employee’s election.  In cases of leave based upon a serious medical condition, the amount of leave will depend on the particular circumstances of the medical conditions involved and will be based upon the medical certification provided by the medical provider. FMLA leave is job protected, meaning that the employee has the right to return to his or her position or an equivalent position at the conclusion of his or her FMLA leave.  During the time that an employee is on FMLA leave, benefits are to continue on the same basis as if an employee were working.  If the employee has paid time off, that can run concurrently with their FMLA leave and in this way, employees can be paid during FMLA leave although the basis for being paid is not the FMLA statute, but the employer’s policy on granting paid time off.  In addition to the above, employees cannot be disciplined for absences related to having taken job protected leave. 

Intermittent Use of Leave

In certain circumstances, employees may be eligible to use their FMLA leave on an intermittent basis.   Intermittent leave means that an employee may take FMLA leave in smaller increments such as partial days or a smaller numbers of days in a row than simply taking continuous leave for a specified period of time.   For example, an employee may need to be gone for a few hours per day or a few days per month depending on the nature of the condition.  In some instances whether an employee is allowed to use leave intermittently is based upon the employer’s discretion to decide and it is not necessarily legally required. 

Disciplinary Actions/Retaliation

Employees who are on job protected leave under FMLA cannot be disciplined for FMLA related absences, even under a no-fault attendance policy.  In addition, it is also unlawful for an employer to retaliate against an employee for his or her exercise of his legal rights to take FMLA leave.  On the other hand, FMLA also cannot be used by employees in order to avoid termination for poor job performance.  In other words, if the employee would have been subject to termination regardless of whether he or she had taken FMLA leave, FMLA does not interfere with an employer’s right to otherwise terminate an employee in these circumstances. 

Interaction with the Americans with Disabilities Act

A medical condition that meets the definition of “serious medical condition” under the Family and Medical Leave Act may also constitute a disability under the Americans with Disabilities Act.  This may mean that employees who have exhausted the allotted amount of FMLA leave may have the right to additional unpaid leave under the Americans with Disabilities Act which is referred to as reasonable accommodation leave.  It is important for both employers and employees to understand the potential application of the Americans with Disabilities Act with FMLA depending on the circumstances.


FMLA provides employees with the opportunity to take unpaid leaves of absence under various circumstances and it is an important statute that both employers and employees should have a basic understanding of as it applies to today’s work environment. footer Add 2