07/ 15/ 2005
by Megan Mocho
NFIB Legal Foundation
Many employers are required by federal law to allow their employees 12 weeks of unpaid leave under the Family and Medical Leave Act. Although the FMLA has now been in effect for almost 12 years, many questions and legal disputes still arise over the FMLA’s requirements. While many small-business owners grant virtually all requests for family and medical leave, it is still a good idea to make sure your company’s policy complies with the law’s technical requirements. 
What is the FMLA?
The FMLA is a federal law that provides job security to employees who request time off for a family or medical reason. Under the law, a “qualified employee” is entitled to receive up to 12 weeks of unpaid leave for family and medical responsibilities.
Which employers must provide FMLA leave?
Employers who have 50 or more employees are required to comply with the FMLA.
Who is a qualified employee under the FMLA?
To qualify for FMLA leave, an employee must have worked for the employer for a minimum of twelve months (consecutively or non-consecutively). The employee is then qualified to receive FMLA benefits if they worked at least 1,250 hours during the 12-month period before the leave (which translates to 25 hours per week for 50 weeks).
What must I provide to a qualified employee?
- Unpaid Leave –– Covered employers must provide up to 12 workweeks of unpaid leave for certain family and medical issues. If the employee has accrued paid time off, an employer may require them to use some or all of their accrued paid time off as the FMLA leave. If two spouses work for the same employer, their combined FMLA leave entitlement is only 12 weeks.
- Accommodating Schedule –– If possible, the employee may work on an intermittent or part-time schedule.
- Benefits –– The employee is entitled to retain their health insurance coverage while on FMLA leave. However, the employee is still required to pay their portion of the contribution.
- Job Security –– Employers must place the employee in the same job position or a comparable job position with equal pay when the employee returns from leave.
- Notice –– Employers covered by the FMLA must notify their employees that they are eligible for FMLA leave. In addition, covered employers must display a poster describing the benefits and requirements of the law. Copies of the poster can be downloaded for free from the U.S. Department of Labor Web site.
When can an employee take FMLA leave?
An employee may use FMLA leave for the following reasons:
- to care for an immediate family member with a serious health condition
- for the birth or adoption of a child
- inability to work because of a serious heath condition
An employee may not use FMLA leave for the following reasons:
- regular illnesses such as colds, flu, stomach aches or headaches
- routine dental care
- any other condition that does not make the employee unable to perform their job
What is a serious health condition?
A serious health condition is any illness, injury or condition that requires inpatient or overnight care, more than three days absence from work, incapacity due to pregnancy or treatments for a medical condition that would likely worsen if left untreated. The condition must make the employee unable to perform their key job function.
How do I know if the employee is taking FMLA leave?
The employee should provide a 30-day notice if they foresee taking FMLA leave. If the need for leave is unforeseeable, the employee should notify their employer as soon as practicable, or within one to two business days. It is the employer’s responsibility to denote the leave as FMLA leave.
If the employer was unaware that the employee was absent for FMLA reasons, the employee has up to two days after returning to work to designate their absence as FMLA leave.
How does a state family leave law affect the FMLA?
If your state law provides an employee with more family and medical leave rights than the federal law, the state law applies.
