The Family Medical Leave Act

The Family Medical Leave Act (“FMLA”) is a federal statute that provides certain employees of qualified employers with leave related to a personal or family medical issue. Additionally, the FMLA prohibits an employer from retaliating against an employee for taking FMLA leave.  Navigating the FMLA can be difficult; accordingly, we want to take this opportunity to break it down for TACT readers.

What qualifies as FMLA leave?

Twelve workweeks of leave for the following:

  • Leave for the birth of a child and to care for the newborn child within one year of birth;
  • Leave for the placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement;
  • Leave to care for the employee’s spouse, child, or parent who has a serious health condition;
  • Leave related to a serious health condition that makes the employee unable to perform the essential functions of his or her job;
  • Leave related to any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty” (covered active duty is defined in the statute) or

Twenty-six workweeks of leave for the following reason:

  • Twenty-six workweeks of leave during a single 12-month period to care for a covered servicemember with a serious injury or illness if the eligible employee is the servicemember’s spouse, son, daughter, parent, or next of kin (military caregiver leave).

Can all employees get FMLA protection?

No, to qualify to take FMLA leave, you must work for a “qualified employer.”  Under the FMLA, the following employers are considered “qualified employers”:

  • Private-sector employers, with 50 or more employees in 20 or more workweeks in the current or preceding calendar year, including a joint employer or successor in interest to a covered employer;
  • Public agency, including a local, state, or Federal government agency, regardless of the number of employees it employs; or
  • Public or private elementary or secondary school, regardless of the number of employees it employs.

Additionally, in order to take FMLA leave, an employee must be eligible under the statute.  To be eligible, an employee must have worked for his or her employer for at least twelve months.  These twelve months do not have to be consecutive.  The employee must have at least 1,250 hours of service for the employer during the 12-month period immediately preceding the leave, and the employee must work at a location where the employer has at least 50 employees within a 75 mile radius.

Is FMLA leave paid?

No, while the FMLA allows you to take leave without recourse, it does not require your employer to pay you during that time.

How does FMLA leave impact my paid sick leave?

It depends on your employer.  Employers have the option to run FMLA leave and paid sick leave concurrently.  If they choose to do this, they must notify the employee that the leave will be designated FMLA leave within 5 business days of being notified that the employee is taking FMLA qualified leave.

Employees also have the option to use paid sick leave or vacation time during a period of FMLA leave.  The leave will still be protected FMLA leave.

What are my employer’s obligations under the leave?

An employee who takes FMLA leave is entitled to continued health benefits during his or her leave.  Additionally, employees are entitled to return to their same or similar job upon return from FMLA leave.

What do I do if I believe I have been retaliated for taking FMLA leave?

It is unlawful to discharge or otherwise retaliate against an employee who has exercised his or her rights under the FMLA.  Generally, there is a two year statute of limitations for claims for violation of FMLA (claims of a willful violation may have a three year statute of limitations).  Although persons who have experienced FMLA retaliation may have the right to damages, these damages are limited if the employee is a government employee.

You can make complaints of FMLA violations to the US Department of Labor Wage and Hour Division.  However, there is no guarantee that they will take any action on your behalf.  Moreover, filing with the Department of Labor does not toll your statute of limitations (meaning you must still file a lawsuit within the two year limitations period.)  As you can see, the FMLA is a detailed and complex statute.   As a result, if you believe you have been retaliated against for taking FMLA leave, you should contact an employment attorney as soon as possible to discuss your options.


This article is not intended to provide legal advice, but is merely a summary of the law generally applicable in these situations.  This article does not create an attorney-client relationship.