In a fast-paced, rapidly changing economy that rewards innovative, adaptable workers and penalizes those who don’t keep up with the times, the idea of an equitable work-life balance seems out of date. Many employers, particularly those operating in competitive industries or requiring lots of unspecialized or low-skill labor, expect their employees to be flexible and work as hard as possible. Though employers can’t afford to treat highly skilled or specialized workers as expendable, it’s a different story when there are 10 such workers with equivalent skills eagerly lined up at the door.
To be fair, though, many laws exist to protect workers’ safety, dignity, and civil rights. Of these, the federal Family and Medical Leave Act (FMLA), which has been on the books since 1993, is among the most expansive and frequently invoked.
What Is the Family and Medical Leave Act?
Within any continuous 12-month period, the FMLA allows qualifying employees to take up to 12 consecutive or nonconsecutive weeks (and, in limited cases, up to 26 weeks) of unpaid work leave for specific medical and family-related reasons. These include childbirth and newborn care, adoption, serious personal medical conditions, or the need to care for an immediate family member with a serious medical condition.
Employers aren’t required to pay employees on FMLA leave, though about 65% do offer full or partial pay to employees on leave, according to the Department of Labor. And though employers are permitted to suspend benefits such as the accumulation of paid time off (PTO) for employees on leave, they can’t suspend or revoke employer-sponsored group health insurance coverage – certainly an important protection for employees taking time off for medical reasons.
However, employers can require employees to use accrued PTO, paid maternity leave, and other time-off benefits before dipping into their FMLA allotment. This can actually be beneficial for employees, since it maintains income for part of the leave period.
Legally speaking, the FMLA is a modification of the employment-at-will doctrine that governs most employer-employee relationships in the United States. This makes it similar to some other labor laws, such as those prohibiting discrimination on the basis of protected status. Employment-at-will gives both employers and employees the right to end an employment relationship at any time, and for any reason.
Under normal circumstances at many workplaces, an employee who took up to 12 weeks off would likely face termination. Upon returning from leave, however, FMLA-covered employees who take leave for a qualifying reason must almost always be reinstated at their previous position and pay grade, and with the same benefits and responsibilities. Eligible employees can’t be fired, demoted, harassed, or otherwise penalized for requesting or taking leave under the FMLA.
Who Qualifies for Family and Medical Leave Act Coverage?
The FMLA applies to public and private employers with at least 50 employees within a 75-mile radius of where the employee is based. This exempts both small businesses and small, isolated branch offices run by larger employers. Some government agencies and local educational authorities may be exempt as well. According to the Department of Labor’s 2012 FMLA Executive Summary, about 59% of all U.S. workers are eligible for unpaid leave under the FMLA.
To qualify for the FMLA’s protections, employees need to meet the following criteria:
- Work for a qualifying employer
- Have been employed by that employer for at least 12 months (not necessarily consecutively – periods of seasonal work for the same employer can be counted cumulatively)
- Have amassed at least 1,250 hours of work within the past 12 months – an average of about 24 hours per week
- Not be an elected official at any level of government
Though all employees who meet these criteria are covered under the FMLA, there’s a limited exception for key employees, who are defined as employees that meet all of the above criteria and are paid better than 90% of their coworkers within a 75-mile radius. The FMLA allows employers to forgo reinstatement for returning key employees if reinstatement would cause “substantial and grievous” harm to the employer’s finances – for instance, because the employee would be reinstated at a high rate of pay and with costly benefits.
However, an employer can’t prohibit a key employee from taking leave under the FMLA. And if an employer chooses not to reinstate a returning employee, it must make a convincing case for why reinstating the employee would cause grievous harm.
Complementary State Statutes
Some states have unpaid leave laws that piggyback off the FMLA, strengthening protections for employees who need to take time off for family or medical needs. These laws change regularly, so it’s best to check with your state labor authorities for up-to-date information.
Here’s a sampling of in-force state laws:
- Oregon. All employers with 25 or more employees are subject to the FMLA. Eligible employees can combine up to 12 weeks of leave for any covered condition other than pregnancy or child sick leave with up to 12 weeks of leave for each of those conditions, for a total of up to 36 weeks of leave an any one-year period.
- Maine. Private employers with 15 or more employees and municipal (town or county departments) employers with 25 or more employees are subject to the law.
- Maryland. Private employers with 15 or more employees must follow all FMLA provisions. Additionally, they must allow qualified employees at least 30 days off for bone marrow donation, and 60 days off for organ donation, which aren’t covered by federal law.
- New Jersey. New Jersey extends FMLA eligibility to employees who’ve amassed at least 1,000 hours of work in the previous 12 months, a more generous allowance than the federal 1,250-hour threshold.
Eligible Leave Under the FMLA
The FMLA allows qualifying employees to take up to 12 total weeks of unpaid, non-penalized work leave within any given 12-month period for the following:
- Birthing and Newborn Care. Parents are covered for time off related to childbirth, bonding, newborn care, and care for infants up to one year in age.
- Adoption and Foster Care. Parents are covered for care and bonding of a newly placed adoptee or foster child up to one year from the placement date.
- Immediate Family Member Care. This covers the care of a seriously injured or ill child, parent, or spouse. The Department of Labor stipulates that, in this and all cases, “spouse” describes common-law and same-sex spouses; “parent” describes a biological, step-, foster, or adoptive parent, or any adult who legally served in loco parentis (as the employee’s legal guardian when the employee was a minor); and “child” describes a biological, step-, foster, or adoptive child, or a child with whom the employee has an in loco parentis relationship (including an adult child incapable of self-care due to disability).
- Personal Illness or Injury. Employees may take time off for an illness or injury that renders them unable to perform essential job duties. Thanks to emergency legislation passed by Congress in 2020, this stipulation covers convalescence (recovering from one’s own infection) and care (for infected family members) related to COVID-19 infection and may include a limited component of federally mandated paid leave.
- Domestic Violence. Although the FMLA does not explicitly cite domestic violence as eligible for leave under the act, FMLA-eligible employees may take up to 12 weeks’ unpaid leave for physical injuries or psychological trauma resulting from domestic violence.
- Military Exigency. This covers employees with immediate family members (child, parent, or spouse) in active-duty military service. “Exigency” describes a situation that can arise as a result of active-duty service, such as the servicemember being deployed to a foreign country on short notice. Since the employee might not see the servicemember again for many months in this situation, and due to the inherent dangers of some foreign deployments, FMLA leave would allow the two family members to spend quality time together before the servicemember shipped off and it would address any pressing logistical issues surrounding the deployment.
The FMLA allows up to 26 total weeks of unpaid, non-penalized work leave within a 12-month period for the following:
- Military Caregiver Leave. This applies to employees with servicemembers in their immediate family, as well as employees designated next-of-kin by the servicemember (for instance, a nephew with no living siblings, adult children, or parents). For employees to qualify as military caregivers, their servicemember kin must have an illness or injury related to or exacerbated by military service.
Though superficially similar to qualifying situations, these common situations are not covered by the FMLA:
- Minor Illness. Minor or short-term illnesses, such as the common cold and bouts of influenza that don’t require hospitalization, are not covered, even if the employee has to miss work. This applies whether it’s the employee or an immediate family member who’s sick.
- Routine Medical Care. Physical checkups, lab work, eye exams, and other routine care aren’t included.
- Care for Non-Immediate Family Members. Employees caring for a grandparent, uncle, or other non-immediate family member don’t qualify for time off under FMLA, no matter how close they are to the individual. The only exception is if the individual has, or had, an in loco parentis relationship with the employee.
- Pet Care. Time off for veterinary care or the death of a pet isn’t covered by the FMLA.
Some FMLA exceptions and restrictions are quite technical and detailed. If you’re not sure whether your specific situation is covered, check with the Department of Labor’s Wage and Hour Division (WHD), the federal agency tasked with enforcing the FMLA and other labor laws.
Employees who qualify for leave under the FMLA must be mindful of certain obligations in the run-up and aftermath of their time off:
- Providing Adequate Notice. The employee must provide as much advance notice as possible of the upcoming leave. For planned medical procedures, such as childbirth and non-emergency surgery, this typically means at least 30 days. (For childbirth, an actual due date or arbitrary date sometime prior to the due date is fine.) For unplanned events, such as a serious accident affecting an immediate family member or medical diagnosis requiring urgent surgery, employees must notify employers as soon as they learn about the issue. Notice can be given orally or in writing. If possible, employees also need to make themselves available to answer followup questions from the employer, such as the expected duration of time off.
- Certification Requirements. At their discretion, employers can require FMLA-qualified employees to certify the reason for their absence – for instance, by providing a written doctor’s letter. Eligible employees should plan to consult with a physician before taking leave under FMLA.
- Use of Paid Time Off. An employer can always compel an employee to use paid time off before FMLA leave, even if the reason for leave is covered by FMLA. By the same token, the employee has the right to request that all available PTO be put toward FMLA-qualified time off, even if the employer doesn’t request it or attempts not to allow it. Employees might want to do this to ensure that they’re paid as much as possible during their time off.
- Notification of Changed Circumstances. Employees may be required to give notice as soon as possible after the circumstances surrounding FMLA-qualified leave change. For instance, if the employee or immediate family member makes a faster-than-expected recovery, or if complications delay recovery and require additional leave. However, this isn’t a default requirement – employees only need to do so if their employer asks.
The FMLA imposes some obligations on employers as well. The most notable include the following:
- Posting a FMLA Notice. All employers, even those with no qualifying employees, must post an official Department of Labor notice outlining employees’ FMLA rights in a highly visible location, such as a break room or conference room. Employers with multiple locations must post at least one notice at each location. The DOL may levy a per-location, per-incident fine for non-compliance. This fine is less than $200 and increases to keep pace with inflation each year.
- Providing Written Notice in New-Hire Materials. Employers must provide all new hires with written notice of FMLA protections. The most common way to do this is in an employee handbook or new-hire packet – but employers that don’t normally distribute such materials can hand out a sheet with all the necessary information, or simply distribute copies of the official DOL notice directly to new hires.
- Eligibility Notice. Within five business days of an employee’s request for time off under FMLA, an employer must provide oral or written notice of the employee’s eligibility. If the employer determines that the employee doesn’t qualify for FMLA, the notice must include at least one valid reason why (for instance, not enough hours worked in the past 12 months). Unless the employee’s eligibility changes, the employer doesn’t have to distribute a separate notice for each time-off request within the same 12-month period – one per year is enough.
- Written Rights and Responsibilities Notice to Employees Approved for Leave. Along with the eligibility notice, an employer must provide a notice outlining employees’ FMLA-related rights and responsibilities to every employee approved for time off under FMLA. The notice must include the employee obligations and restrictions outlined above, as well as the employee’s rights to full reinstatement upon returning. For simplicity, the DOL recommends using Form WH-381, which contains a comprehensive overview of this information.
FMLA Violations and Enforcement
Filing a FMLA Claim
The Wage and Hour Division investigates and enforces all FMLA-related claims. Complementary state statutes that provide additional, related protections are enforced by the appropriate state labor agencies.
Though WHD does conduct independent investigations of employers it suspects of violating labor laws, including the FMLA, most FMLA violations are discovered as a result of complaints filed with WHD by or on behalf of an aggrieved employee. To file a claim, employees contact their local WHD office online, by phone, or in person, and provide as much detail as possible about their identity, employer, job, and the alleged violation.
All claims filed with the WHD are confidential. The agency doesn’t report claimants’ identities to any other federal departments or agencies, including immigration enforcement agencies. Additionally, federal law prohibits employers from retaliating in any manner, such as withholding pay or terminating employment, against employees who file WHD claims.
Common Violations and Pitfalls for Employers
Many managers and business owners are smart enough to know that they’re unlikely to get away with blatant FMLA violations, such as firing a qualifying worker while on unpaid leave. However, employers frequently violate the act in more subtle ways.
Common FMLA violations include the following:
- Holding an employee accountable on a future performance review for project work not completed during the leave period, possibly resulting in termination
- Reinstating an employee in a lesser position
- Denying a valid leave request from a qualifying employee
- Terminating employees without cause prior to the start of the leave period, though this is typically only deemed a violation if the employees can prove they would have kept the job in the absence of a FMLA request
- Misclassifying an employee as a key employee to avoid reinstatement (The FMLA allows employers to forgo reinstatement for returning key employees under certain circumstances.)
Employers who aren’t intimately familiar with the law (or who don’t have access to legal counsel) may not even know they’re violating the act, or may mistakenly think they’re not bound by it. A Department of Labor survey found that 16% of FMLA-covered employers either weren’t sure whether the law applied to them or were convinced that it didn’t.
Employee Redress and Employer Penalties
If a WHD investigation finds that a particular claim has merit, the affected employee is entitled to the following, per the American Bar Association:
- Lost Wages and Benefits. This category includes any lost wages, bonuses, benefits, and other compensation – plus interest – directly attributable to the FMLA violation, such as earnings employees would have received up to the leave period’s start date had they not been proactively terminated.
- Compensation for Actual Costs Incurred During Leave. This applies if employees didn’t lose wages, benefits, or other compensation as a result of the violation – for example, if the employer denied their qualifying leave request but didn’t fire them. It includes any expenses related to the reason for leave, such as the cost of medical care and supplies, up to an amount equal to 12 weeks’ wages plus interest.
- Equitable Relief. If the violation resulted in adverse employment action, such as termination or demotion, the employee is entitled to full reinstatement to a position with equal or greater responsibility.
- Attorney Fees. Fees incurred by the claimant for legal action against the employer, such as attorney’s fees and expert witness fees, must be paid in full by the employer. This isn’t necessary in all cases, as an employer may agree to settle and pay claims without going to court.
Labor laws and worker protections have come a long way in a relatively short period of time. According to the Department of Labor, the United States didn’t have a permanent federal minimum wage until 1938. And discrimination on the basis of gender, race, and other protected statuses wasn’t seriously addressed until the 1960s and 1970s. Laws like the Civil Rights Act (1964) and Equal Employment Opportunity Act (1972) enshrined some measure of protection for historically disenfranchised workers.
However, legal statutes and the agencies that enforce them aren’t all-seeing or all-powerful. And though employees shouldn’t automatically assume that they’re viewed as disposable commodities, they do bear responsibility for understanding the laws that protect them and spotting potential violations. Otherwise, those laws are just words on paper.
Have you ever taken advantage of the Family and Medical Leave Act?