The Family & Medical Leave Act (FMLA) provides up to 12 weeks of unpaid, job-protected leave to eligible individuals in the following circumstances:

·         Birth, adoption, or placement of a child;

·         Serious health condition of a child, spouse, parent, or self;

·         For any qualifying exigency arising out of the fact that a spouse, son, daughter, or parent is a military member on covered active duty or call to covered active duty status; or

·         To care for a covered service member with a serious injury or illness, when the employee is the spouse, son, daughter, parent, or next of kin of the servicemember. (Care of an injured or ill servicemember may be taken for up to 26 weeks)

Covered Employer

Private sector employers are covered if they employ 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 sector employers and public or private sector elementary or secondary schools the FMLA applies regardless of number of employees.

Eligible Employees

Employees who work for covered employers are eligible for leave if they have:

·         Worked for the employer for at least 12 months (does not have to be consecutive);

·         Worked at least 1250 hours in the 12 month period immediately preceding the leave; and

·         Work at a location that employs at least 50 employees within a 75 mile radius


Covered employers must:

·         Post a notice explaining the rights and responsibilities under FMLA;

·         Include information about FMLA in employee handbooks or provide information the new employees upon hire;

·         When the employer learns of an employee’s need for FMLA leave (either by direct request or by acquired knowledge that a reason for FMLA leave may exist), provide the employee with information about their rights and responsibilities under FMLA; and

·         Notify employees that their leave has been designated as FMLA leave and the amount of leave that will be applied to their FMLA entitlement

Job protection

FMLA requires employers to restore employees utilizing this leave to an equivalent job once they are ready to return from leave. “Equivalent” is a higher standard than “comparable”.  This means that at the end of a leave, the individual must be restored to a job that has the same status, pay, benefits, working conditions, shift, etc. as the job they had when they went on leave.

Also, an employer is not permitted to retaliate in any way against an individual who has exercised their right to take leave under FMLA.

12 Weeks of Leave in a 12 month period

Employees are entitled to a total of 12 weeks of leave during a 12-month period.  An employee is not entitled to 12 weeks for each incident that may occur during the 12 month period.  So, for example, if an employee has surgery and is out of work for 6 weeks for that procedure and recovery, he would have 6 weeks left to use during the 12 month period.  If his wife subsequently gives birth to a child, he would be entitled to a maximum of an additional 6 weeks of leave because he already used 6 of his 12 week allotment.

The FMLA rules allow the employer to select which 12 month period it will use to calculate the leave entitlement.  Employers may choose from one of four options:

·         Calendar year;

·         12 month period measured forward from when leave is first used;

·         Some other fixed 12-month period (such as a fiscal year); or

·         A rolling 12-month period measured backward

It is important that an employer select which 12 month period it will use for calculating FMLA and incorporate it into its policy.  If the employer fails to select a 12 month period, then it is defaulted to the 12 month period that most benefits the employee.  More information about the 12 month period can be found in the Department of Labor (DOL) fact sheet on this topic.

Serious Health Condition

As described on the DOL website, a serious health condition includes:

conditions requiring an overnight stay in a hospital or other medical care facility;
conditions that incapacitate you or your family member (for example, unable to work or attend school) for more than three consecutive days and have ongoing medical treatment (either multiple appointments with a health care provider, or a single appointment and follow-up care such as prescription medication);
chronic conditions that cause occasional periods when you or your family member are incapacitated and require treatment by a health care provider at least twice a year; and
pregnancy (including prenatal medical appointments, incapacity due to morning sickness, and medically required bed rest).
FMLA can be a complicated and challenging law to manage.  However, the DOL provides guidance, including fact sheets, FAQs, and special guides on their FMLA website.

Contributed by Christine Crews, SPHR, SHRM-SCP is Vice President of Human Resource Services for the Employers Association Forum, Inc. (EAF). EAF is a non-profit corporate membership-based association dedicated to serving the business and HR communities with world-class HR tools, hotlines & legal compliance, news & trends, surveys & economic data, benefits & insurance, risk management, training & consulting, and leadership & organizational development. HCCMO members receive discounted rates on all EAF classroom training at EAF’s training center in Longwood. Click here to learn more about EAF membership benefits