From the Owens and Millsaps Blog

Some Needed Time Off: Family and Medical Leave Act Basics

iStock_000001498469XSmallThe Family and Medical Leave Act (FMLA) was intended to help employees with the work-life balance by guaranteeing time off for family responsibilities or medical emergencies. But, despite the required labor law postings gracing the walls of employee breakrooms all over the country, many employees don’t understand their rights under the law and many employers are left scratching their heads about what they must provide. Here are six things employers and employees should know about the FMLA:

The FMLA doesn’t apply to everyone.

While the FMLA covers all government employers, private employers are only covered when they have 50 or more employees. Even then, some private employers with 50 or more employees are not covered. For the FMLA to apply, there must have been 50 or more employees on payroll for at least 20 weeks (not necessarily consecutively) in the current or previous year.  Further, FMLA coverage does not cover facilities with fewer than 50 employees within a 75-mile radius. So, even if a company has had 50 employees on payroll for more than 20 weeks, the FMLA still might not apply if those employees are spread out over too great an area.

Employees, likewise, may not be entitled to FMLA benefits even if their employers are covered. For example, an employee might work at a facility with fewer than 50 employees within a 75-mile radius and would therefore not receive coverage, even if the employer is a large company. Most importantly, though, employees are not eligible for FMLA leave until they’ve worked for a covered employer for at least 12 months, and have worked at least 1,250 hours during the 12 months prior to taking FMLA leave.

The FMLA only covers certain types of leave.

Although FMLA leave exists to help employees balance work and other responsibilities, it can’t be taken for just any reason, nor is it unlimited. What the FMLA does cover is up to 12 workweeks of unpaid leave per 12-month period for reasons such as:

  • A serious health condition making the employee unable to perform the essential functions of the job;
  • To care for an immediate family member with a serious health condition;
  • The birth of the employee’s child, or placement of a child with the employee for adoption or foster care; or
  • Any qualifying emergency due to an immediate family member’s covered active duty military status

There are other special circumstances that may also change the amount or type of leave an employee may take under the FMLA. For example, an employee may also take up to 26 workweeks of unpaid leave in a single 12-month period to care for a covered servicemember with a serious injury or illness, as long as the employee is the servicemember’s spouse, parent, child, or next of kin. Additionally, sometimes an employee may use FMLA leave on an intermittent basis (for example, by working fewer hours per day or week, or taking a few days off at a time). Intermittent leave, though, may require the employer’s approval or reasonable pre-planning efforts by the employee so as not to unduly disrupt the employer’s operations.

Employees have to let their employers know in advance.

Even where FMLA leave is covered, employees don’t have the right to immediately take leave no matter the circumstances. The FMLA requires that employees give their employers at least thirty (30) days’ notice before taking leave. If the reason for the leave is unforeseeable, though, then the employee need only give as much notice as is practicable.

Employees aren’t the only ones who have to give notice. Once an employee requests leave for the first time in the 12-month period and gives enough information that the employer is on notice of a potential FMLA reason for the leave, the employer must provide an eligibility notice within five business days that informs the employee of eligibility under the FMLA. If the employee is not eligible for FMLA leave, the eligibility notice must state at least one reason why the employee is not covered.

Generally, employees must follow the employer’s usual requirements for requesting leave, but they don’t have to explicitly mention the FMLA as long as they provide enough information about the reason for leave that the employer can reasonably determine whether the FMLA applies. Notably, employers may not make it more difficult to request FMLA leave than normal leave, or they may become liable for FMLA discrimination or retaliation claims.

Following the notice requirements under the FMLA can get tricky, and employers should have an experienced employment attorney review their leave policies to ensure compliance with the law. Employees, likewise, should be sure to give their employers enough information that they would reasonably be on notice that their leave is for a potentially qualifying reason. If an employer improperly denies FMLA leave, employees may want to contact an experienced employment attorney for help challenging the employer’s decision. With the help of an attorney, these types of issues can often be resolved quickly and without ever involving the courts.

The employer may require employees to use their FMLA leave.

Even if an employee has accrued paid leave (such as vacation leave or sick leave), employers may sometimes require their employees to use their FMLA leave if their reason for leave qualifies under the law. Likewise, employers may sometimes require (or employees may even choose) to use accrued paid leave to cover part or all of their FMLA leave. Even if an employee would rather use all their accrued paid or vacation leave before or after taking their FMLA leave (to extend their total leave beyond 12 weeks, for example), they may not be allowed to do so.

Whether FMLA leave runs consecutively or concurrently with other types of leave is often determined by the employer’s leave policies. Employees, therefore, should check their employers’ policies before attempting to use leave in any particular way. Employers, on the other hand, should have an employment attorney review their leave policies to ensure they comply with the law and set up leave to be the most beneficial.

The employer doesn’t have to pay. Usually.

Employees have rights to FMLA leave under certain circumstances, but it’s important to note that the leave the FMLA provides is unpaid. Employers, however, may choose to provide paid leave instead. If an employer represents to an employee that FMLA leave will be paid leave and an employee relies on that representation, though, the employer may not be allowed to later argue that FMLA leave is unpaid. It’s important that employers avoid confusion by establishing and following consistent procedures for FMLA and other types of leave. An employment attorney can help employers establish these policies and procedures so that the employers are protected and employees get the leave they deserve under the law.

Although employers are not required to give paid FMLA leave, they are required to continue certain benefits such as group health insurance coverage for employees on covered leave. This may seem as simple as keeping the employee on the insurance plan while on leave, but there may be exceptions in certain circumstances (for example, the employee may be required to repay the employer for amounts spent to maintain group health insurance coverage while on leave if the employee chooses not to return to work after the conclusion of FMLA leave). Employers may want to speak with an employment attorney about the specific exceptions that could apply to their employees to ensure their own rights are protected from FMLA abuse.

The employee gets to come back.

After the conclusion of an employee’s FMLA leave, the employer must restore the employee to the same or an equivalent job with equivalent benefits and employment terms and conditions. This is easy if the employee’s old position is still available. Sometimes, though, the same position is not available and the employer must find an equivalent position. Under the FMLA, a position is equivalent when it is “virtually identical” in areas such as pay, benefits, working conditions, privileges, and status. It must also involve substantially similar responsibilities that require substantially equivalent skill, effort, and responsibility.

It’s not enough, then, to give an employee the same pay and benefits as their previous position. Rather, things such as diminished opportunities for career advancement, a technical demotion in rank (even despite otherwise equal pay, benefits, and responsibilities), or other differences between the previous and new position can prevent a position from being an equivalent one and can open the employer up to liability. This is another area where having an experienced employment attorney review the employee’s reinstatement plan ahead of time can be very beneficial in preventing disputes long before costly disputes and judgments arise.


The FMLA can be a powerful tool for employees and, if properly implemented, can help employers maintain happy and productive workforces that avoid the unnecessary stress of having true family or medical emergencies come with the threat of adverse employment actions. The provisions of the law can get tricky, though, and costly lawsuits neither help employees maintain a good work-life balance, nor help employers maintain a productive workforce.

Employees who feel they’ve been improperly denied FMLA protections or have otherwise been discriminated against because of a covered condition should contact an employment attorney with experience handling FMLA issues. Often, those types of disputes can be resolved quickly and efficiently without the need for a protracted lawsuit. Employers, likewise, should work with an experienced employment attorney to develop and review effective and legal leave policies, and to brief human resources and other managers on the law so that liability and costly disputes can be avoided before they become a problem.