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An overview of your rights: What is FMLA leave?

The Family and Medical Leave Act (FMLA) is a federal law that protects eligible employees who need to take leave for certain medical reasons.  If you’re an eligible employee, your covered employer can’t fire you for taking FMLA leave and must allow you to return to your job when your leave ends.  Here’s a basic overview of your rights under the FMLA:

Is my employer covered under FMLA?

The FMLA only covers the following employers:

  • Public-sector employers (federal, state, and local government agencies), regardless of the number of employees
  • Public and private elementary and secondary schools, regardless of the number of employees
  • Any other private-sector employers (non-government employers) that have 50 or more employees in 20 or more workweeks during the current or prior calendar year

What are the eligibility requirements for FMLA?

To be eligible for FMLA leave, you must meet all of the following requirements:

  • You work for a covered employer.
  • You’ve worked for your covered employer for at least 12 months.
  • You’ve worked at least 1,250 hours for your covered employer during the 12-month period immediately prior to the leave.*

If you work for a private-sector employer that is not a primary or secondary school, in addition to the three requirements above, you must work at a location where your employer has at least 50 employees within 75 miles.

How long is FMLA leave, and when can I take it?

If you are an eligible employee under the FMLA, you are entitled to take up to 12 workweeks of unpaid leave in a 12-month period for any of the following reasons:

  • For your own serious health condition that prevents you from performing your job
  • To care for a newborn child within one year of the child’s birth
  • To care for an adopted or foster within one year of the child’s placement
  • To care for a spouse, child, or parent who has a serious health condition
  • For any qualifying exigency relating to your spouse, child, or parent being a covered military member on “covered active duty”

Alternatively, eligible employees may take up to 26 workweeks of leave during a 12-month period to care for a spouse, child, parent, or next of kin who is a covered service member with a serious injury or illness.

FMLA leave may be continuous (e.g., for a period of two weeks) or intermittent (e.g., up to three hours per week, as needed, to attend doctor’s appointments).  You may take FMLA leave in periods of weeks, days, or hours.

Is FMLA paid leave?

The FMLA only requires employers to provide unpaid leave.  However, your employer may require you to use any accrued paid leave when you take FMLA.  For example, say your employer gives every employee 10 days of paid annual leave.  You request 15 days of FMLA leave.  Your employer can require you to exhaust your paid annual leave during your FMLA leave.  In other words, you’ll receive pay during the first 10 days of your FMLA leave, and you’ll be on unpaid leave for the remaining 5 days.

How do I apply for FMLA leave?

Follow your employer’s policy for requesting leave.  Ask for FMLA leave as early as possible, especially if you need leave for an extended period of time.  Your leave request should include enough information for your employer to determine if FMLA applies.  For example, your request should indicate if you need leave to have surgery, get medical treatment for a disability, take care of a family member who has cancer, or care for a newborn child.

If you request leave for your own serious health condition or a covered family member’s health condition, your employer may require you to provide documentation from a health care provider.  Your employer can deny your FMLA leave request if you refuse to provide necessary medical documentation.

Can an employer deny FMLA leave?

It’s against the law for a covered employer to deny an eligible employee’s proper request for FMLA leave.  Your employer can’t require you to perform any work while you’re on approved FMLA leave.  It’s also illegal for a covered employer to retaliate against an eligible employee who requests FMLA leave.

What can I do if my employer denies FMLA leave?

If your employer unlawfully denies your leave request, retaliates against you for requesting FMLA leave, or otherwise interferes with your FMLA rights, you may file a complaint with the U.S. Department of Labor or file a lawsuit in federal court.

If you are considering taking legal action, it may be helpful to consult an experienced employment attorney.  A lawyer can determine whether you work for a covered employer if you are an eligible employee, and if your employer broke the law.  An attorney can assess the strengths and weaknesses of your case and recommend a course of action.

If your employer violated your FMLA rights, Alan Lescht and Associates, P.C., can help.  Our attorneys represent federal government employees around the world, as well as private-sector and state and local government employees in Washington, DC, Maryland, and northern Virginia.  We provide experienced legal representation in FMLA cases and other employment-related matters.

* There are special service hour eligibility requirements for airline flight crew employees.

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Disability and medical issues Discrimination Employee Rights Federal Employees FMLA Law Retaliation Wrongful Termination

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