FMLA: Who Gets Job-Protected Leave

1Why this matters

A new baby, a surgery or a parent's illness can force a choice between a job and a family. The FMLA protects many workers from having to make it, but not everyone, and it does not replace pay. Knowing whether you are covered, how to ask, and what your employer must do lets you plan the leave, protect your health insurance and avoid losing your job over a misunderstanding. This guide covers the federal law; state laws may give you more.

2Who is eligible?

• A covered employer: private employers with 50 or more employees, and all public agencies and public and private elementary and secondary schools.
• At least 12 months working for the employer, which do not have to be in a row.
• At least 1,250 hours actually worked in the 12 months before the leave begins, about 24 hours a week. Vacation and sick time do not count toward the hours.
• A worksite where the employer has at least 50 employees within 75 miles.

Part-time workers, new employees and people at small employers may not qualify. If you do not, state law, your employer's policy or the Americans with Disabilities Act may still protect some time off.

3What reasons qualify?

• The birth of a child and caring for the newborn, within the first year.
• The placement of a child with you for adoption or foster care, within the first year.
• Caring for a spouse, child or parent with a serious health condition.
• Your own serious health condition that makes you unable to do your job.
• Certain urgent needs when a spouse, child or parent is called to active military duty, and caring for a covered service member with a serious injury or illness, for up to 26 weeks.

A serious health condition generally means an illness, injury or condition that needs inpatient care, or continuing treatment by a health care provider, such as an incapacity of more than three days with ongoing treatment, a chronic condition like diabetes or asthma that causes episodes, or pregnancy and prenatal care. A cold or the flu usually does not qualify.

4How much leave, and what protections?

Eligible employees can take up to 12 workweeks in a 12-month period, which the employer defines, such as the calendar year or a rolling year. The leave is unpaid, though you may use accrued paid leave, and the employer can require you to. Spouses who work for the same employer may be limited to 12 weeks combined for the birth or placement of a child.

Leave does not have to be taken all at once. For a serious health condition it can be intermittent, in separate blocks of time, or on a reduced schedule, when medically necessary; leave for a new child can be taken that way only if the employer agrees.

During leave your employer must keep your group health coverage on the same terms as if you were working; you generally keep paying your share of the premium. When you return, you must be restored to the same or an equivalent job with the same pay, benefits and conditions. A small group of the highest-paid employees can be denied restoration in limited circumstances.

5How to ask for leave

Give your employer 30 days' notice when the need is foreseeable, such as a birth or planned surgery, and as soon as practical when it is not. You do not have to use the words FMLA, but you must give enough information for your employer to know the leave may qualify. Follow your employer's usual call-in rules where you can.

Your employer must tell you within five business days whether you are eligible and what it requires. It may ask for a medical certification from a health care provider, which you generally have at least 15 calendar days to return, and may ask for a fitness-for-duty certification before you come back from your own medical leave. Keep copies of everything you send and receive.

6Paid leave and other income during leave

FMLA itself provides no pay. Options to replace some income include accrued vacation and sick leave, short-term disability insurance through an employer, and paid family and medical leave programs, which more than a dozen states and D.C. now run or have enacted, usually funded by small payroll contributions. Your state labor department can tell you what exists. If a serious health condition will last a year or more, read our guide to how Social Security decides disability.

Unemployment benefits generally are not paid while you are on leave from a job you still have, because you are not available for work.

7Special situations

Pregnancy

Prenatal appointments and time unable to work because of pregnancy count as FMLA leave, before the 12 weeks for bonding with the baby begin to run. Separately, the Pregnant Workers Fairness Act requires employers with 15 or more employees to make reasonable accommodations for pregnancy-related limitations, such as more breaks or temporary changes in duties, which can reduce the leave you need.

When FMLA leave runs out

If you still cannot return after 12 weeks, the Americans with Disabilities Act may require an employer with 15 or more employees to consider additional unpaid leave or another accommodation for a disability. Ask in writing before your FMLA leave ends.

8If your rights are violated

Employers may not interfere with your FMLA rights, deny leave you are entitled to, or retaliate against you for using it, such as by firing or demoting you. You can file a complaint with the Department of Labor's Wage and Hour Division, generally within two years, or three years for a willful violation, or you can sue the employer in court. Our guide to unpaid wages and wage complaints explains how the Wage and Hour Division handles complaints. If you lose your job, see our unemployment guide.

9Common mistakes

• Not telling the employer enough about why you need leave for it to count as FMLA.
• Missing the deadline to return a medical certification.
• Assuming time off from a small employer or in your first year is protected.
• Not knowing your employer's 12-month period and running out of leave sooner than expected.

11What this does not tell you

Not everyone is covered. Smaller employers, new employees and part-time workers with fewer than 1,250 hours may not qualify, though state laws may help.

This guide is a general summary, not legal advice. The Department of Labor's fact sheets, your state's laws and your employer's leave policy set out the details.