Under the national Family and Medical Leave Act (FMLA), many employees have a right to time off work when needed to due to caregiving for a new child or family member, or due to their own serious health condition or pregnancy. This law provides family caregivers and those experiencing health conditions with up to 12 weeks of unpaid time off each year while maintaining their health insurance.
If you are covered, your employer must give you the time off and hold your job for you while you are out. Leave may be taken all at once, or may be taken in parts (intermittently) in certain situations.
Frequently Asked Questions
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What is considered a serious health condition? How sick do I or my family member need to be to get time off?
The FMLA provides leave for “serious health conditions” for the worker or their family members. While this does not cover the common cold, upset stomach, or similar illnesses that can be treated without a visit to a doctor, a wide variety of health conditions are covered. A serious health condition is an illness, injury, impairment, or physical or mental condition that involves any of the following:
- inpatient care, like an overnight stay in a hospital. This includes any period of incapacity or any follow-up treatment after the inpatient care. “Incapacity” means an inability to work, attend school or perform other regular daily activities due to your health condition, or seeking treatment or recovery of your health condition. If you are too sick to work or go to school after a 1 night hospital stay, you are considered incapacitated from a serious health condition.
OR
- continuing treatment by a health care provider, such as for pregnancy, prenatal care, chronic conditions or long-term conditions;
“Continuing treatment” can include many things such as examinations, appointments for diagnosis, ongoing therapy, or continuing to take prescribed medication. Continuing treatment also covers periods of incapacity due to permanent or long-term conditions where active treatment may not be effective, but you or your family member are still being supervised by a health care provider, such as Alzheimer’s, severe stroke, or terminal cancer. Treatment does not include routine examinations or continuing to take over-the counter medications, such as aspirin, or being told to get more rest or exercise. If your child sees a doctor twice a year for their asthma and regularly uses a perscription rescue inhaler for their asthma, they are receiving “continuing treatment” for their serious health condition.
Because “continuing treatment” is a complex test, we recommend you visit our FMLA eligibility tool to learn more about the protections that may apply.
What type of “care” do I have to provide to be eligible for FMLA?
People take FMLA leave to provide care for a covered family member in many different ways.
Here are examples of caregiving:
- Bonding with a newborn or newly adopted child
- Accompanying a family member at medical appointments or driving them to appointments
- Providing psychological comfort and reassurance to a patient undergoing treatment
- Grocery shopping for a family member recovering for surgery or cooking their meals
- Helping a family member eat or bathe
- Providing comfort to a family member in hospice
- Arranging for medical treatment or nursing care
If my partner and I work for the same employer, do we both get to take leave under the FMLA?
Yes. If you both meet all the eligibility requirements, both of you have the right to leave under the FMLA. However, an employer can require spouses who work for the same employer to share their 12 weeks if they are taking leave to bond with a new child or to care for a child with a serious health condition. This means their combined leave to bond or care for seriously ill child cannot exceed 12 weeks total.
This only applies to eligible spouses who work for the same employer, and only for caregiving leave (not leave for the worker’s own health condition). The limitation does not apply to two employees working for the same employer who are not legally married, even if they have a child together.
How do I count employees at my worksite if I work remotely?
If you work from home, your worksite is the office to which you report or which you receive your assignments. So, for many it will be where your boss is located. Your home is not considered your worksite.
Do I have to provide a doctor’s note?
Most likely. Employers are not required to, but they usually ask that you or your family member’s healthcare provider fill out a medical certification. This can be a doctor, clinical psychologist, nurse practitioner, nurse-midwife, clinical social worker, or physician assistant. Generally, you have 15 days to provide the completed medical certification to your employer. If you need more time, make sure to talk to your employer about this and try to provide the medical certification as soon as you can.
Do I have to take my leave all at once, or can I take one day or a week at a time?
It depends on the reason you are taking leave. If you are taking leave to care for a serious health condition (your own or a family member’s), your employer must allow you to take intermittent or reduced schedule leave when it is medically necessary, i.e. when your doctor says it is needed. This means if you need to take 2 days off a month to attend certain prenatal appointments you can. However, if you are taking leave to bond with a new child, it is up to your employer whether to allow you to take time off intermittently and they can require you to take the full 12 weeks all at once.
How can I get paid while taking time off so I can afford to take FMLA leave?
The FMLA only requires employers to provide eligible employees with job-protected time off—it does not require your employer to pay you for the time off. However, there may be options for you. You may be able to use paid time off, such as sick or vacation, during your leave. Whether you can use your paid time off depends on the reason you need to take leave and your employer’s policies. Generally, your employer has the right to determine if you can or cannot use your paid time off during FMLA leave. However, if your employer normally allows employes to use their sick time to care for a sick family member, then they have to allow you to use it for FMLA caregiving leave. You may also be able to get paid through a state paid family and medical leave program. Currently, 13 states and the District of Columbia have a paid family and medical leave program. Check out our state law map to see if your state has a program.
I’m nervous my employer won’t like me taking FMLA. Is it safe?
It is illegal for your employer to fire, harass, or treat you worse because you asked to take or took FMLA leave. It is also illegal for your employer to do anything to try and stop you from taking FMLA leave. Contact our free legal helpline at (415) 703-8276 or hotline@worklifelaw.org if you want to discuss your situation.
I work for an airline, are the rules different for me?
Yes. As most airline flight attendants and flight crew employees have non-traditional work schedules, there are different hour requirements for these employees. For flight attendants and flight crew, you must have worked or been paid for at least 60% of your applicable monthly guarantee and have worked or been paid for at least 504 hours in the year prior to your leave, not including personal commute time, or time spent on vacation, medical or sick leave. If you meet these hour requirements and have worked for the airline for at least 1 year, you are then eligible for FMLA leave.
