What Is the Family and Medical Leave Act (FMLA) and How Does It Work?

If an employee complaint arises, the Wage and Hour Division may investigate, which could lead to legal action to compel compliance with the FMLA. Employees can also bring private civil actions against employers for violating the FMLA. Beyond the potential for fines, legal actions along these lines can prove detrimental to a company's public image and might discourage job candidates from applying for open positions with that company.

An eligible employee may take leave under the FMLA for the following qualifying reasons:

• Birth of a child: Up to 12 weeks of continuous leave for qualifying employees.
• Adoption or placement of foster child: Up to 12 weeks of continuous leave for qualifying employees.
• Serious employee health condition: Up to 12 weeks of leave for employees too sick or injured to conduct their job responsibilities.
• Caring for a spouse, child, or parent with a serious health condition: Up to 12 weeks leave for situations where a family member cannot take care of themselves.
• Military deployment: Up to 12 weeks for childcare duties when a military spouse is deployed overseas.

To meet requirements, covered employers must:

• Post a notice explaining rights and responsibilities under the FMLA. Covered employers may be subject to a civil money penalty for willful failure to post. Employers may use the Department's FMLA poster, which is free and publicly available on the Department's website, to satisfy this requirement.³
• Include the information provided in the FMLA poster in your employee handbooks. If no handbook or written leave materials exist, the employer must distribute the general notice provided on the DOL website to each new employee upon hire.
• When an employee requests FMLA leave or the employer learns that leave may be for an FMLA-qualifying reason, provide the employee with notice concerning their eligibility for FMLA leave and their rights and responsibilities under the FMLA.
• Notify employees whether leave is designated as FMLA leave and the amount of leave that will be deducted from the employee's FMLA entitlement.

Additional information about Notification Requirements under the FMLA is available on the USDOL website.⁴

Covered employers must post the FMLA poster in a visible, conspicuous location at the workplace so both employees and job candidates can see it. According to the USDOL, the poster must be displayed at all locations even if there are no eligible employees,

Where a significant portion of the employer's workforce is not proficient in English, the employer must provide the notice in the language in which the employees are literate. Employers also must follow applicable requirements for notices under federal and state law for sensory-impaired individuals.

Willful failure to post the required FMLA notice may result in a civil money penalty by the USDOL Wage and Hour Division, not to exceed $211, effective Jan. 16, 2024, for each separate offense. Other notice provisions besides the FMLA poster also exist under the Act.

Fathers have the same right as mothers to take FMLA leave to bond with a newborn child. A mother may also take FMLA leave for prenatal care, incapacity related to pregnancy, and for their own serious health condition following the birth of a child. A father can use FMLA leave to care for their spouse's serious health condition, such as incapacitation due to pregnancy or childbirth.

Leave to bond with a newborn child or for a newly placed adopted or foster child must conclude within 12 months after the birth or placement of the child. The use of intermittent FMLA leave for these reasons is subject to the employer's approval.

Under some circumstances, employees may take FMLA leave on an intermittent or reduced schedule basis. That means an employee may take leave in separate blocks of time or by reducing the time they work each day or week for a single qualifying reason. When leave is needed for planned medical treatment, the employee must make a reasonable effort to schedule treatment to not unduly disrupt the employer's operations. If FMLA leave is for the birth, adoption, or foster placement of a child, use of intermittent or reduced schedule leave requires the employer's approval.

Employees may use FMLA leave in the smallest increment of time the employer allows for the use of other forms of leave, as long as the smallest increment is no more than one hour. If an employer uses different increments for different types of leave (for example, accounting for sick leave in 15-minute increments and vacation leave in one-day increments), the employer must allow FMLA leave to be used in the smallest increment used for any type of leave.

Additional information is available on the DOL website.⁵

Only eligible employees are entitled to take FMLA leave. An "eligible employee" under the FMLA is an individual who:

• Works for a covered employer;
• Has worked for at least 12 months (not necessarily consecutive) as of the date the FMLA leave is to start;
• Has worked for at least 1,250 hours for the employer during the 12 months immediately preceding the leave; and
• At the time leave is requested, works at a location where the employer employs at least 50 employees within 75 miles of that worksite as of the date when the employee gives notice of the need for leave.

Please note that eligibility requirements may vary based on the industry that the employee is in.

Generally, an employer may select one of four methods to establish the 12-month period to be applied to its employees. The method the employer selects must be uniformly applied to all employees taking FMLA leave. Below are the different methods to establish the 12-month period:

1. The calendar year: The 12-month period that runs from Jan. 1 through Dec. 31;
2. Any fixed 12 months: A 12-month period such as a fiscal year (for example, Oct. 1 through Sept. 30), a year starting on an employee's anniversary date (for example, Sept. 22 through Sept. 21), or a 12-month period required by state law;
3. The 12-month period measured forward: The 12-month period measured forward from the first date an employee takes FMLA leave. The next 12-month period would begin the first time FMLA leave is taken after the completion of the prior 12-month period;
4. A "rolling" 12-month period measured backward: A 12-month period measured backward from when an employee uses any FMLA leave. Under the "rolling" 12-month period, each time an employee takes FMLA leave, the remaining leave entitlement would be the balance of the 12 weeks that have not been used during the immediately preceding 12 months.

Additional information about calculating the 12-month period can be found on the USDOL website.⁶

Employees must comply with their employer's usual and customary requirements for requesting leave and provide enough information for their employer to reasonably determine whether the FMLA may apply to the leave request. Employees generally must request leave 30 days in advance when the need for leave is foreseeable. When the need for leave is foreseeable less than 30 days in advance or is unforeseeable, employees must provide notice as soon as possible and practicable under the circumstances.

There is no entitlement to paid leave under the FMLA. However, under certain conditions, the employee may choose to use — or be required by their employer to use — accrued paid leave, such as sick or vacation leave, to cover some or all of the FMLA period. Additionally, a state or local paid leave program may run concurrently with leave taken under the FMLA, providing the employee with pay through that program.

FMLA is a federal law outlining specific rights for eligible employees of covered employers, obligating those employers to provide unpaid, job-protected leave for qualifying reasons.

Paid Family Leave may be a state, local, or optional insurance policy that differs from one jurisdiction to the next, separate from federal regulations, and where benefits may be more generous than those provided by FMLA. Depending on the circumstances, if a business offers paid leave, it may qualify for the Paid FMLA Tax Credit for Employers.

Several states and local jurisdictions have established laws or created optional insurance programs regarding time off for family and medical reasons, including paid family and medical leave. Employees are entitled to all the benefits under federal, state, and local law for which they are eligible.

The answer to this question depends on several variables and differing scenarios. For example, while an employee's job can be eliminated while on FMLA leave, they cannot be let go for asking for or taking FMLA leave.

On the other hand, termination is possible for any of the following:

• The employee neglected to apply for leave under the FMLA.
• The employee's job performance is deemed "poor" before they take FMLA leave.
• Any misconduct or fraudulent behavior the employee commits.

Employers must have a legitimate and non-discriminatory reason for ending an individual's employment, regardless of whether they have applied for FMLA leave. It's important that employers always maintain comprehensive documentation of the situation, and they might wish to consult legal counsel.

In 2015, the USDOL amended the definition of "spouse" in the FMLA regulations so that employees in legal, same-sex marriages have the same rights and privileges as those in opposite-sex marriages under the FMLA. Employers must ensure leave policies recognize legal same-sex and opposite-sex marriages.

Employers are not required to notify coworkers when an employee takes FMLA leave. The reasons behind time off under the FMLA are considered personal to the employee and employer involved, and discretion is recommended. Also, note the reasons why an employee's medical or family leave might be protected under applicable laws.