FMLA FAQs: Key Facts About Your Right to Protected Leave

As is typical in employment law, our firm handles a large number of cases involving FMLA violations each year. The FMLA, or Family and Medical Leave Act, is a federal law which aims to protect employee rights in the event of a medical or family-related situation that necessitates leave from work. The Act guarantees unpaid, job-protected leave for up to 12 weeks in the event of a qualifying condition—but many employees are unclear about the details of the law. In this blog, we’ll cover some of the most important frequently asked questions about the FMLA. Familiarizing yourself with all aspects of the Act is a key first step to determining whether you are covered, and whether you may have a case for a possible FMLA violation.

Does my condition qualify me to take leave under the FMLA?

If you’re contemplating making use of the FMLA, the first question that you’ll ask is likely “do I qualify?” According to the Department of Labor, the official guidelines for qualifying conditions are as follows. You may take FMLA protected leave for:

• the birth of a child, and to bond with the newborn child;
• for the adoption or fostering of a child, and to bond with that child;
• to care for an immediate family member (spouse, child, or parent – but not a parent “in-law”) with a serious health condition;
• to take medical leave when the employee is unable to work because of a serious health condition; or
• for qualifying exigencies arising out of the fact that the employee’s spouse, son, daughter, or parent is on covered active duty or call to covered active duty status as a member of the National Guard, Reserves, or Regular Armed Forces.

What is a “serious health condition” and how do I know if mine qualifies?

The FMLA defines a serious health condition as one which incapacitates you or a family member for more than three consecutive days and requires ongoing medical treatment. Conditions requiring an overnight stay at a hospital or other medical facility, as well as chronic conditions that cause occasional periods of incapacitation and require medical treatment at least twice a year, are also protected under the FMLA. Pregnancy is one of the most common conditions that qualifies an employee to take FMLA leave.

Am I eligible to take leave under the FMLA?

Sometimes, even if an employee has a qualifying condition, they may not be eligible for FMLA leave under certain circumstances. If you work for a private sector employer who employs fewer than 50 employees, you are ineligible for FMLA leave. Additionally, if you have worked at your place of employment for fewer than 12 months total, or if you have worked fewer than 1,250 hours during the past 12 months prior to leave, you cannot claim leave under the FMLA.

What do I need to do to request FMLA leave?

When an employee seeks to use FMLA leave for the first time, the employee does not need to expressly invoke their FMLA rights to their employer, or even mention the law at all. For subsequent FMLA leave requests to the same employer, involving a qualifying condition for which the employee has previously received FMLA-protected leave, the employee must specifically reference the qualifying condition or the need for FMLA leave. When the leave is foreseeable, employees should provide their employers with at least 30 days of advance notice prior to beginning the leave. If the need for leave is unforeseeable due to a medical emergency, for example, the employee should provide notice as soon as practically possible.

Is FMLA leave always unpaid?

Under the Act, employers are only required to provide employees with up to 12 weeks of unpaid leave. However, employees are free to use accrued paid leave during the FMLA leave period—including paid vacation days or sick days. The law also allows employers to require employees to use accrued paid leave during FMLA leave, at the employer’s discretion. If you do use paid leave for a qualified condition covered by the FMLA, your leave is still protected under the law. This means that your job is still protected and upon your return, you must be given your same or equivalent position within the company. Employers may not retaliate against employees for taking FMLA leave, even if employees use paid leave.

Can men also take FMLA leave in relation to the birth of a child?

Yes. Men and women have equal rights to FMLA leave after the birth of a new baby or an adoption, in order to allow for family bonding. Men can also use FMLA leave to care for a spouse who requires attention due to pregnancy or childbirth. Separately, women may use FMLA leave for prenatal care or for their own serious health condition following childbirth.

If I want to take FMLA leave for my own serious health condition, am I required to provide medical certification?

Employees are not required to give the employer their medical records. However, under the law, employers can require employees to obtain a certification from their healthcare provider that establishes that a serious health condition exists. Employers must allow employees at least 15 days to obtain the certification, and, if dissatisfied with the certification, the employer must state in writing what additional information is necessary “to make the certification complete and sufficient.” Employees will then have a minimum of seven additional days to correct the deficiency. If the serious condition is ongoing, employers may legally request recertification every 30 days.

How will my medical privacy be affected?

The FMLA requires that any contact between an employer and an employee’s healthcare provider must comply with HIPAA privacy regulations—so there are no special privileges or access that an employer can gain to your health records when you take FMLA leave. Employers can contact your healthcare provider only for authentication or clarification of the medical certification you provide regarding your FMLA-qualifying condition. They may not request any additional information beyond that listed on the certification form. For privacy reasons, an employee’s direct supervisor may never contact the employee’s healthcare provider.

Do I need to take my entire period of FMLA leave all at once?

No. Covered employees can choose to take their FMLA leave in one block of up to 12 weeks, if they wish; however, they may also take leave intermittently if their qualifying health condition requires it. If medically necessary, employees are also permitted to work on a reduced leave schedule, in which the employee’s usual work hours are lessened on a daily or weekly basis. Employees may also request intermittent leave to bond with a newborn child or a newly adopted or fostered child. However, in these instances, intermittent leave is subject to the employer’s approval and may only be taken within the 12 months immediately after the birth or placement.

Navigating the FMLA can be tricky, but it’s your right as an employee to have access to information about the laws that protect you. As always, if you have any questions or think that you may be dealing with a violation of the FMLA, contact our firm at (646) 430-7930 or via our contact form here.