Under the national Family and Medical Leave Act (FMLA), many employees have a right to time off work when they need it due to caregiving for a family member, a new child, 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 (those caring for military servicemembers may be eligible for 26 weeks). During FMLA leave, workers keep their health insurance.
If you are covered by the law, 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.
Take our FMLA Eligibility Quiz here!
Frequently Asked Questions
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How do I know if I'm eligible?
WorkLife Law’s FMLA eligibility quiz can help you understand if you may be covered by the law. Take the quiz here.
The FMLA covers workers who need time off for:
- the birth or adoption/placement of a child;
- to care for their spouse, child, or parent with a serious health condition;
- to take leave for their own serious health condition (including pregnancy);
- for certain needs in relation to their spouse, son, daughter, next-of-kin or parent’s active duty status in the Armed Forces, National Guard, or Reserves.
To be eligible for FMLA coverage, workers must also meet minimum work requirements. To qualify, typically workers must:
- have worked for the employer for at least 12 months total in the last seven years (this does not need to have been 12 months in a row);
- have worked 1,250 hours during the 12 months just before the start of leave; and,
- work at a location where the employer has 50 or more employees within 75 miles.
If you don’t qualify, you may still have a right to family or medical leave under state law. Contact us for help.
What is considered a serious health condition? How sick do I or my family member need to be to get time off?
WorkLife Law’s FMLA eligibility quiz can help you understand if you may be covered by the law. Take the quiz here.
The FMLA provides leave for “serious health conditions” for the worker or their family members. (Note, different standards apply for those who are ill or injured service members.) This does not cover the common cold, upset stomach, or similar illnesses that can be treated without a visit to a doctor, but a wide variety of health conditions are covered. “Serious health conditions” protected by the FMLA include 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 follow-up treatment after the inpatient care or period of incapacity after the care. “Incapacity” means an inability to work, attend school or perform other regular daily activities due to your health condition 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 doctor’s appointments, 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 prescription 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?
WorkLife Law’s FMLA eligibility quiz can help you understand if you may be covered by the law. Take the quiz here.
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
- Going with a family member to medical appointments or driving them to appointments
- Providing psychological comfort and reassurance to a patient undergoing treatment
- Grocery shopping or cooking for a family member who is recovering from surgery
- 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 parent with a serious health condition. This means their combined leave to bond with their newborn or newly adopted child or care for seriously ill parent cannot exceed 12 weeks total.
This only applies to eligible spouses who work for the same employer, and only for birth/adoption leave or caregiving leave for a parent (not leave for the worker’s own health condition or the serious health condition of a child). 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 from which you receive your assignments. So, for many workers 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. The provider 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 (that is, when your doctor says it is needed). This means that 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 other be options for you. You may be able to use paid time off, such as sick or vacation days, 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, which 13 states and the District of Columbia currently have. 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.
I need leave related to military service, are the rules different for me?
Yes. Family of covered military service members have the option to take leave for different reasons than other workers. You may have the right to take up to 26 weeks to care for your family member if they have a qualifying serious injury or illness. Military family members may also have the right to take up to 12 weeks of time off for “qualifying exigencies” related to deployment/covered active-duty status such as arranging childcare and movers, joining your service member on R&R, or seeking counselling.
To learn more about your rights to leave, contact us or check out the following resources:
