FMLA Employee Guide

The employee’s guide to

The Family and
Medical Leave Act

Wage and Hour division
UniTed STATeS depArTMenT oF LAbor

An introduction to the Family
and Medical Leave Act
When you or a loved one experiences a serious health condition that
requires you to take time off from work, the stress from worrying about
keeping your job may add to an already difficult situation.
The Family and Medical Leave Act (FMLA) may be able to help. Whether
you are unable to work because of your own serious health condition,
or because you need to care for your parent, spouse, or child with a
serious health condition, the FMLA provides unpaid, job-protected leave.
Leave may be taken all at once, or may be taken intermittently as the
medical condition requires.
This guide provides a simple overview of how the FMLA may benefit you.
In your time of need, sometimes you just need time.

This Guide Will explain:
■■

Who Can Use FMLA Leave?

■■

When Can I Use FMLA Leave?

■■

What Can the FMLA Do for Me?

■■

How Do I Request FMLA Leave?

■■

Communication With Your Employer

■■

Medical Certification

■■

Returning to Work

■■

How to File a Complaint

■■

Web Site Resources

Who Can Use FMLA Leave?

In order to take FMLA leave, you must first work for a covered
employer. Generally, private employers with at least 50 employees are
covered by the law. Private employers with fewer than 50 employees
are not covered by the FMLA, but may be covered by state family and
medical leave laws. Government agencies (including local, state and
federal employers), and elementary and secondary schools are covered
by the FMLA, regardless of the number of employees.
If you work for a covered employer, you need to meet additional
criteria to be eligible to take FMLA leave. Not everyone who works for
a covered employer is eligible.
First, you must have worked for your employer for at least 12 months.
You do not have to have worked for 12 months in a row (so seasonal
work counts), but generally if you have a break in service that lasted
more than seven years, you cannot count the period of employment
prior to the seven-year break.
Second, you must have worked for the employer for at least 1250
hours in the 12 months before you take leave. That works out to be an
average of about 24 hours per week, over the course of a year.
Lastly, you must work at a location where the employer has at least
50 employees within 75 miles of your worksite. So even if your
employer has more than 50 employees, if they are spread out and
there are not 50 employees within 75 miles of where you work, you
will not be eligible to take FMLA leave.

airline Flight attendants/Flight Crew employees

Due to non-traditional work schedules, airline flight attendants and
flight crew members are subject to special eligibility requirements
under the FMLA. You meet the hours of work requirement if, during
the 12 months prior to your need for leave, you 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, not including personal
commute time, or time spent on vacation, medical or sick leave.

2 The Employee’s Guide to The Family and Medical Leave Act

Am I Eligible for FMLA Leave?

I work for an employer who has 50 or more employees
or
I work for a public agency, elementary, or secondary school
YES

NO
Your employer is not
covered by the FMLA
and does not have to
offer FMLA leave

Your employer
is covered by the
FMLA
AND

You are not eligible
for FMLA leave

NO

I have worked for
my employer for at
least 12 months
YES

You are not eligible
for FMLA leave

NO

I have worked for
my employer for at
least 1250 hours in
the last 12 months
YES

You are not eligible
for FMLA leave

NO

My employer has
50 or more
employees within 75
miles of my jobsite
YES
You are eligible for
FMLA leave

The Employee’s Guide to The Family and Medical Leave Act 3

When Can i Use FMLA Leave?
If you work for an employer that is covered by the FMLA, and you are
an eligible employee, you can take up to 12 weeks of FMLA leave in
any 12-month period for a variety of reasons including:

serious Health Condition

You may take FMLA leave to care for your spouse, child or parent
who has a serious health condition and when you are unable to work
because of your own serious health condition.
The most common serious health conditions that qualify for FMLA
leave are:
1) conditions requiring an overnight stay in a hospital or other
medical care facility;
2) conditions that incapacitate you or your family member
(for example, unable to work or attend school) for more than
3 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);
3) 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
4) pregnancy (including prenatal medical appointments, incapacity
due to morning sickness, and medically required bed rest).

Military Family Leave

The FMLA also provides certain military family leave entitlements. You
may take FMLA leave for specified reasons related to certain military
deployments. Additionally, you may take up to 26 weeks of FMLA leave
in a single 12-month period to care for a covered servicemember with
a serious injury or illness.

4 The Employee’s Guide to The Family and Medical Leave Act

expanding Your Family

You may take FMLA leave for the birth of a child and to bond with the
newborn child, or for the placement of a child for adoption or foster
care and to bond with that child. Men and women have the same
right to take FMLA leave to bond with their child but it must be taken
within one year of the child’s birth or placement and must be taken
as a continuous block of leave unless the employer agrees to allow
intermittent leave (for example, a part-time schedule).
Parent
Parent means a biological, adoptive, step or foster father or
mother, or any other individual who stood in loco parentis to the
employee when the employee was a son or daughter. This term
does not include parents “in law”.
son or daughter
Son or daughter means a biological, adopted, or foster child, a
stepchild, a legal ward, or a child of a person standing in loco
parentis, who is either under age 18, or age 18 or older and
“incapable of self-care because of a mental or physical disability”
at the time that FMLA leave is to commence.
in Loco Parentis
A child under the FMLA includes not only a biological or adopted
child, but also a foster child, a stepchild, a legal ward, or a child of
a person standing in loco parentis. The FMLA regulations define in
loco parentis as including those with day-to-day responsibilities to
care for and financially support a child. Employees who have no
biological or legal relationship with a child may nonetheless stand
in loco parentis to the child and be entitled to FMLA leave. For
example, an uncle who is caring for his young niece and nephew
when their single parent has been called to active military duty or
an employee who is co-parenting a child with his or her same sex
partner may exercise their right to FMLA leave. Also, an eligible
employee is entitled to take FMLA leave to care for a person who
stood in loco parentis to the employee when the employee was
a child. (See Administrator’s Interpretation No. 2010-3 and Fact
Sheets 28B and C.) 

The Employee’s Guide to The Family and Medical Leave Act 5

What Can the FMLA

Do for Me?
If you are faced with a health condition that causes you to miss work,
whether it is because of your own serious health condition or to care
for a family member with a serious health condition, you may be able
to take up to 12 weeks of job-protected time off under the FMLA.
If you take FMLA leave, your employer must continue your health
insurance as if you were not on leave (you may be required to
continue to make any normal employee contributions).
As long as you are able to return to work before you exhaust your
FMLA leave, you must be returned to the same job (or one nearly
identical to it). This job protection is intended to lessen the stress that
you may otherwise feel if forced to choose between work and family
during a serious medical situation.
Time off under the FMLA may not be held against you in employment
actions such as hiring, promotions or discipline.
You can take FMLA leave as either a single block of time (for example,
three weeks of leave for surgery and recovery) or in multiple, smaller
blocks of time if medically necessary (for example, occasional absences
due to diabetes). You can also take leave on a part-time basis if
medically necessary (for example, if after surgery you are able to return
to work only four hours a day or three days a week for a period of time).
If you need multiple periods of leave for planned medical treatment
such as physical therapy appointments, you must try to schedule the
treatment at a time that minimizes the disruption to your employer.
FMLA leave is unpaid leave. However, if you have sick time, vacation
time, personal time, etc., saved up with your employer, you may use
that leave time, along with your FMLA leave so that you continue to
get paid. In order to use such leave, you must follow your employer’s
normal leave rules such as submitting a leave form or providing advance
notice. Even if you don’t want to use your paid leave, your employer can
require you to use it during your FMLA leave. For example, if you are
out for one week recovering from surgery, and you have two weeks of
paid vacation saved up, your employer can require you to use one week
of your vacation time for your FMLA leave. When you use paid leave for
an FMLA-covered reason (whether at your request or your employer’s),
your leave time is still protected by the FMLA.
6 The Employee’s Guide to The Family and Medical Leave Act

How Do I Request

FMLA Leave?
To take FMLA leave, you must provide your employer with appropriate
notice. If you know in advance that you will need FMLA leave (for
example, if you are planning to have surgery or you are pregnant),
you must give your employer at least 30 days advance notice. If you
learn of your need for leave less than 30 days in advance, you must
give your employer notice as soon as you can (generally either the day
you learn of the need or the next work day). When you need FMLA
leave unexpectedly (for example, if a family member is injured in an
accident), you MUST inform your employer as soon as you can. You
must follow your employer’s usual notice or call-in procedures unless
you are unable to do so (for example, if you are receiving emergency
medical care).
While you do not have to specifically ask for FMLA leave for your first
leave request, you do need to provide enough information so your
employer is aware it may be covered by the FMLA. Once a condition
has been approved for FMLA leave and you need additional leave
for that condition (for example recurring migraines or physical
therapy appointments), your request must mention that condition
or your need for FMLA leave. If you don’t give your employer enough
information to know that your leave may be covered by the FMLA,
your leave may not be protected.
You do not have to tell your employer your diagnosis, but you do
need to provide information indicating that your leave is due to an
FMLA-protected condition (for example, stating that you have been to
the doctor and have been given antibiotics and told to stay home for
four days).

The Employee’s Guide to The Family and Medical Leave Act 7

Communication
With Your employer
Ongoing communication between you and your employer will make
the FMLA process run much more smoothly. Each of you has to follow
guidelines about notifying the other when FMLA leave is being used.
You will need to inform your employer if your need for FMLA leave
changes while you are out (for example, if your doctor determines that
you can return to work earlier than expected). Your employer may also
require you to provide periodic updates on your status and your intent
to return to work.
Your employer must notify you if you are eligible for FMLA leave within
5 business days of your first leave request. If the employer says that
you are not eligible, it has to state at least one reason why you are not
eligible (for example, you have not worked for the employer for a total
of 12 months).
At the same time that your employer gives you an eligibility notice, it
must also give you a notice of your rights and responsibilities under
the FMLA. This notice must include:
■■

a definition of the 12-month period the employer uses to keep track
of FMLA usage. For example, it can be a calendar year, 12 months
from the first time you take leave, a “fixed” year such as your
anniversary date, or a “rolling” 12-month period measured backward
from the date you use FMLA leave. You need to know which way
your employer measures the 12-month window so that you can be
sure of how much FMLA leave you have available when you need it;

8 The Employee’s Guide to The Family and Medical Leave Act

■■

whether you will be required to provide medical certification from a
health care provider;

■■

your right to use paid leave;

■■

whether your employer will require you to use your paid leave;

■■

■■

your right to maintain your health benefits and whether you will be
required to make premium payments; and
your right to return to your job at the end of your FMLA leave.

When your employer has the information necessary to determine if
your leave is FMLA protected, it must notify you whether the leave
will be designated as FMLA leave and, if possible, how much leave will be
counted against your FMLA entitlement. If your employer determines
that your leave is not covered by FMLA, it must notify you of that
determination.

The Employee’s Guide to The Family and Medical Leave Act 9

The FMLA Leave process

This flowchart provides general information to walk you through your
initial request for FMLA leave. It is a step-by-step guide that will help
you navigate the sometimes complicated FMLA process.
Please note, it is ESSENTIAL that you are familiar
with your employer’s leave policy. There are
several instances throughout the FMLA
leave process where you will need to comply
with BOTH the FMLA regulations AND
your employer’s leave policy.

Your employer
must provide
you with your
FMLA rights &
responsibilities,
as well as any
request for
certification
Please see pg. 8

STarT hErE

t

STEP 1
You must notify
your employer
when you know
you need leave
Please see pg. 7

certification
requested

STEP 3
You must
provide a
completed
certification to
your employer
within 15
calendar days
Please see pg. 12

certification
not
requested

eligible

STEP 2
Your employer
must notify
you whether
you are eligible
for FMLA
leave within 5
business days

STOP
Your leave is not
FMLA-protected
not
eligible

Please see pg. 8

10 The Employee’s Guide to The Family and Medical Leave Act

(You may request
leave again in the
future. Employee
eligibility can
change.)

your responsibility
your employer’s responsibility

STOP
Your leave is not
FMLA-protected
(You may request
leave again in the
future.)
not designated

STEP 4
Your employer
must notify you
whether your
leave has been
designated as
FMLA within 5
business days
Please see pg. 8

STEP 5
Your leave is
FMLA-protected

designated

(There are employee
responsibilities
while out on
FMLA leave.)

Please see pg. 8

STEP 6
When you
return to work,
your employer
must return you
to your same or
nearly identical
job
Please see pg. 14

The Employee’s Guide to The Family and Medical Leave Act 11

Medical Certification

If your employer requests medical certification, you only have 15

calendar days to provide it in most circumstances. You are responsible

for the cost of getting the certification from a health care provider and

for making sure that the certification is provided to your employer.

If you fail to provide the requested medical certification, your FMLA

leave may be denied.

The medical certification must include some specific information,

including:

■■

contact information for the health care provider;

■■

when the serious health condition began;

■■

how long the condition is expected to last;

■■

■■

■■

appropriate medical facts about the condition (which may include
information on symptoms, hospitalization, doctors visits, and
referrals for treatment);
whether you are unable to work or your family member is in need
of care; and
whether you need leave continuously or intermittently. If you need
to take leave a little bit at a time, the certification should include an
estimate of how much time you will need for each absence, how
often you will be absent, and information establishing the medical
necessity for taking such intermittent leave.

If your employer finds that necessary information is missing from
your certification, it must notify you in writing of what additional
information is needed to make the certification complete. You must
provide the missing information within 7 calendar days.
If your employer has concerns about the validity of your certification,
it may request a second opinion, but it must cover the cost. Your
employer may request a third opinion if the first and second opinion
differ, but it must cover the cost.
If your need for leave continues for an extended period of time, or if
it changes significantly, your employer may require you to provide an
updated certification.

12 The Employee’s Guide to The Family and Medical Leave Act

Certification at a Glance

STEP 1
Your employer
must notify you
if a certification
is required

STEP 3
Your employer
must designate
your leave if it is
FMLA-protected

STEP 2
You must
provide a
completed
certification to
your employer
within 15 days

your employer may require you to:

l

Correct any
deficiencies
in your
certification
identified by
your employer
within 7 days

l

Obtain a 2nd
medical opinion
if your employer
doubts the
validity of your
certification

l

Obtain a
3rd medical
opinion if the
1st and 2nd
opinions differ

YOUR EMPLOYER MAY DENY FMLA LEAVE IF YOU FAIL TO PROVIDE

A REQUESTED CERTIFICATION

your responsibility
your employer’s responsibility

The Employee’s Guide to The Family and Medical Leave Act 13

Returning to Work

When you return to work, the FMLA requires that your employer
return you to the same job that you left, or one that is nearly identical.
If you are not returned to the exact same job, the new position must:
■■

■■

■■

■■

■■

involve the same or substantially similar duties, responsibilities, and
status;
include the same general level of skill, effort, responsibility and
authority;
offer identical pay, including equivalent premium pay, overtime and
bonus opportunities;
offer identical benefits (such as life insurance, health insurance,
disability insurance, sick leave, vacation, educational benefits,
pensions, etc.); and
offer the same general work schedule, and be at the same (or
nearby) location.

Please keep in mind that if you exhaust your FMLA leave entitlement
and are unable to return to work, your employer is not required to
restore you to your position.
SPECIAL CIRCUMSTANCES:

“Key” employees

Certain “key” employees may not be guaranteed reinstatement to
their positions following FMLA leave. A “key employee” is defined as
a salaried, FMLA-eligible employee who is among the highest paid 10
percent of all the employees working for the employer within 75 miles
of the employee’s worksite.

Teachers

Special rules apply to employees of local education agencies.
Generally, these rules apply when you need intermittent leave or when
you need leave near the end of a school term.
Please visit our web site for more complete information.

14 The Employee’s Guide to The Family and Medical Leave Act

How to File a Complaint

The U.S. Department of Labor’s Wage & Hour Division (WHD) is

responsible for administering and enforcing the Family and Medical

Leave Act for most employees.

If you have questions, or you think that your rights under the FMLA

may have been violated, you can contact WHD at 1-866-487-9243. You

will be directed to the WHD office nearest you for assistance. There

are over 200 WHD offices throughout the country staffed with trained

professionals to help you.

The information below is useful when filing a complaint with WHD:

■■

your name;

■■

your address and phone number (how you can be contacted);

■■

the name of the company where you work or worked;

■■

location of the company (this may be different than the actual job

site where you worked);

■■

phone number of the company;

■■

manager or owner’s name; and

■■

the circumstances of your FMLA request and your employer’s
response.

Your employer is prohibited from interfering with, restraining, or
denying the exercise of FMLA rights, retaliating against you for filing
a complaint and cooperating with the Wage and Hour Division, or
bringing a private action to court.  You should contact the Wage and
Hour Division immediately if your employer retaliates against you for
engaging in any of these legally protected activities.

To contact the WHD office nearest you, visit:
www.dol.gov/whd/america2.htm.

The Employee’s Guide to The Family and Medical Leave Act 15

Web Site Resources
Visit the Wage and Hour Division web site at www.dol.gov/whd/fmla
for resources containing information about the FMLA, including:
■■

Key News

■■

General Guidance

■■

Fact Sheets

■■

e-Tools

■■

posters

■■

Forms

■■

interpretive Guidance

■■

Law

■■

Regulations

16 The Employee’s Guide to The Family and Medical Leave Act

u.s. department of Labor
Wage and Hour division
200 Constitution Avenue, NW
Washington, DC 20210
1-866-4-USWAgE
(1-866-487-9243)

www.dol.gov/whd

WH-1506

august 2012