The call comes in late: your parent has suffered a serious medical event, or perhaps you’ve just welcomed a newborn and the thought of returning to work already feels impossible.

You know you need time—time to heal, time to care, time to bond. But the stress of these life-changing moments is often compounded by a terrifying fear: Will I lose my job?

For millions of workers, the answer lies in a vital piece of federal legislation designed to protect their security when they need it most.

Introduce the Family and Medical Leave Act (FMLA)

That protection is the Family and Medical Leave Act, or FMLA. Enacted in 1993, this federal law provides eligible employees with the right to take unpaid, job-protected leave for specified family and medical reasons without the fear of immediate termination or demotion.

It is a fundamental safety net intended to balance the demands of the workplace with the needs of families.

Establish Authority

The legal complexities surrounding FMLA are often daunting, making it difficult for employees to know their true rights. At the Law Offices of Todd M. Friedman, P.C., we specialize in employment law, and FMLA violations are a core part of our practice.

We have dedicated years to fighting for employees who have been wrongfully denied leave, fired, or retaliated against for exercising their legal rights, making us a trusted resource for understanding this crucial area of law.

Our commitment is to ensure that employees are treated fairly and legally when navigating serious life events.

What is the Family and Medical Leave Act (FMLA)? (Defining the Law)

Detailed Explanation

The Family and Medical Leave Act (FMLA) is a federal labor law of the United States that requires covered employers to provide employees with job-protected and unpaid leave for qualified medical and family reasons.

The central premise of the FMLA is that an employee should not have to choose between their job and a serious health or family crisis. The law is strictly enforced by the U.S. Department of Labor’s Wage and Hour Division (WHD) and establishes minimum standards for leave policies across the nation.

Key Provisions

The FMLA is anchored by several key provisions that dictate both the amount and the nature of the leave available to eligible employees. These provisions are non-negotiable for covered employers and form the foundation of an employee’s protections.

Leave Entitlement

The core benefit of the FMLA is the right to take up to 12 weeks of leave for specific reasons.

This 12-week entitlement covers the birth and care of a newborn child, the placement of a child for adoption or foster care, the need to care for an immediate family member (spouse, child, or parent) with a serious health condition, or the employee’s own serious health condition. This leave does not have to be taken all at once; it can be used intermittently when medically necessary.

Military Family Leave

The FMLA also extends special provisions for military families. Eligible employees may take up to 26 workweeks of leave in a single 12-month period to care for a covered service member who has a serious injury or illness incurred in the line of duty.

Additionally, up to 12 weeks of leave can be taken due to a “qualifying exigency” arising out of a family member’s active duty or call to active duty status.

Legal Citations

For those seeking the bedrock legal language, the FMLA is codified in the United States Code, specifically under 29 U.S.C. § 2601 et seq. Detailed regulations explaining how the law is to be implemented and interpreted can be found in 29 C.F.R. Part 825.

Referencing these statutes demonstrates the definitive legal authority behind your rights and is often necessary when contesting an employer’s decision.

Eligibility Requirements: Are You Covered?

FMLA coverage is not universal. Both the employee and the employer must meet specific criteria for the leave protection to apply. Understanding these thresholds is the first step in asserting your rights.

Employee Eligibility

To be an eligible employee under FMLA, you must satisfy three key tests:

Employed for at least 12 months (can be non-consecutive)

The first requirement is that you must have worked for the employer for at least 12 months. Crucially, these 12 months do not need to be consecutive.

Breaks in service of up to seven years are generally disregarded, meaning if you worked for a company for six months, left, and then returned for another six months, you would likely meet this threshold.

Worked at least 1,250 hours during the 12 months immediately preceding the leave

The second test is based on actual hours worked. In the 12 months immediately before the date your FMLA leave is set to begin, you must have logged a minimum of 1,250 hours.

This calculation includes only the hours you were actually at work, not paid or unpaid leave, such as vacation time, sick time, or holidays. This rule often excludes part-time employees who work very few hours, even if they have been employed for over a year.

Employed at a worksite with 50 or more employees within a 75-mile radius

The third requirement relates to the size and location of your workplace. Your employer must have at least 50 employees who work within 75 surface miles of your worksite for you to be eligible for FMLA protection.

This rule is designed to ensure that employers have enough personnel to cover your duties while you are away.

Employer Coverage

Even if an employee meets all three eligibility requirements, the employer itself must be covered by FMLA. Covered employers fall into three main categories:

Private-sector employers with 50 or more employees

Any private-sector business that employs 50 or more employees for at least 20 workweeks in the current or preceding calendar year is a covered employer. This is the most common category of FMLA coverage.

Public agencies (federal, state, and local)

All public agencies are covered employers, regardless of the number of employees they hire. This includes government offices at the federal, state, and local levels.

Elementary and secondary schools (public and private)

Both public and private elementary and secondary schools are covered employers, again regardless of the number of employees they have. This special inclusion recognizes the essential function of educational institutions.

Exceptions and Special Cases

While FMLA is broad, there are limited exceptions. The most notable is the “key employee” exception. A key employee is a salaried employee among the highest paid 10% of all employees employed by the employer within 75 miles of the worksite.

While a key employee can still take FMLA leave, the employer may deny job restoration if the restoration would cause substantial and grievous economic injury to the operations of the employer. Multi-state employers must adhere to complex rules regarding the calculation of the 50-employee/75-mile radius rule across different jurisdictions.

Qualifying Reasons for FMLA Leave: When Can You Use It?

FMLA is only applicable for specific, qualifying reasons. These reasons center on serious health conditions or significant family events.

Serious Health Condition

A “serious health condition” is the most common reason for FMLA leave. It is defined as an illness, injury, impairment, or physical or mental condition that involves:

• Inpatient care (hospital stay): Any overnight stay in a hospital, hospice, or residential medical care facility, and any period of incapacity or subsequent treatment in connection with the inpatient care.
• Continuing treatment by a health care provider: This covers various scenarios, including incapacity for more than three consecutive full calendar days with subsequent treatment, chronic conditions requiring periodic treatment (like severe asthma or diabetes), or conditions requiring multiple treatments (such as chemotherapy or physical therapy).
• Pregnancy (including prenatal care and childbirth): Any period of incapacity due to pregnancy, or for prenatal care, qualifies as a serious health condition.

Concrete examples of conditions that often qualify for FMLA leave include treatment for cancer, recovery from major surgery, severe physical injuries requiring prolonged rehabilitation, and serious mental health conditions like severe depression or anxiety that prevent an employee from working.

Family Member’s Serious Health Condition

FMLA allows you to take leave to care for an “immediate family member” with a serious health condition. The definition of an immediate family member is limited to your spouse, child, or parent. Caring for a grandparent, sibling, or in-law generally does not qualify under federal FMLA, unless they stand in loco parentis (acting as a parent).

The scope of “caring for” is broad; it includes providing physical comfort, making medical appointments, assisting with personal hygiene, or providing necessary psychological support.

Birth, Adoption, or Foster Care

Both parents are entitled to FMLA leave for the birth of a child and to bond with the newborn within the first year of life. This leave is also extended to the placement of a child for adoption or foster care.

The ability of the employee to bond with the child is considered paramount, and the leave must be concluded within 12 months of the child’s birth or placement.

Military Family Leave (Qualifying Exigency and Caregiver Leave)

The FMLA provides two distinct types of military-related leave:

Qualifying Exigency

This provision allows eligible employees to take up to 12 weeks of leave to manage affairs when their spouse, child, or parent is a covered military member on active duty or called to active duty status in support of a contingency operation. Examples include arranging for alternative childcare, attending military ceremonies, making financial or legal arrangements, or attending counseling sessions.

Caregiver Leave

This is the expanded leave entitlement, providing up to 26 weeks in a 12-month period. It is available to an employee who is the spouse, child, parent, or next of kin of a covered service member who has incurred a serious injury or illness in the line of duty. This extended leave recognizes the profound demands placed on the families of injured service members.

Employee Rights and Responsibilities Under FMLA

When taking FMLA leave, you have guaranteed rights that your employer must uphold, but you also have crucial responsibilities to fulfill to ensure your leave is protected.

Employee Rights

Right to Unpaid Leave

You have the unqualified right to take up to 12 weeks (or 26 weeks for military caregiver leave) of job-protected, unpaid leave for a qualifying reason, provided you meet the eligibility criteria. While the leave is unpaid by law, you may have the option, or be required by your employer, to substitute accrued paid leave (like vacation or sick time) for some or all of the FMLA leave period.

Right to Job Restoration

This is the cornerstone of FMLA protection. Upon returning from leave, you must be restored to your original job or to an equivalent job. An equivalent job means one that is virtually identical to the original job in terms of pay, benefits, and other terms and conditions of employment. An employer generally cannot require you to accept a lesser position or one with a significantly different schedule.

Right to Maintain Health Insurance

Your employer must maintain your health insurance coverage under the same terms as if you had not taken leave. You are responsible for paying your share of the health insurance premium during the leave period. If you fail to return from FMLA leave, your employer may, in certain circumstances, recover the premiums they paid to maintain your coverage.

Right to File a Complaint

If you believe your FMLA rights have been violated (e.g., your leave was wrongly denied, you were fired, or you were not restored to an equivalent position), you have the right to file a complaint with the Department of Labor’s Wage and Hour Division or file a private lawsuit.

Employee Responsibilities

Providing Notice

Employees must provide their employer with notice of their need for FMLA leave. If the need for leave is foreseeable (e.g., for the birth of a child or scheduled surgery), the employee must give the employer at least 30 days’ notice. If the need is not foreseeable (e.g., a medical emergency), notice must be given “as soon as practicable,” usually within one or two business days of learning of the need for leave.

Providing Certification

If the leave is due to a serious health condition, the employee must provide medical certification from a healthcare provider to support the need for leave. The employer must give the employee at least 15 calendar days to provide this certification. If the employee fails to provide adequate certification, the leave may be denied.

Following Employer’s Leave Policies

While FMLA rights supersede any conflicting employer policy, employees are still required to comply with their employer’s internal leave policies concerning procedures for requesting leave, as long as those policies do not violate FMLA standards. This includes complying with call-in procedures for unscheduled absences.

Communication with Employer

Throughout the leave period, it is important to maintain clear and timely communication with your employer. This includes updating them on your expected return date, especially if that date changes, and responding promptly to reasonable requests for status reports.

Common FMLA Myths and Misconceptions (Debunking Myths)

A great deal of confusion surrounds FMLA, often leading employees to miss out on the protections they are entitled to. Clearing up these myths is critical to empowering workers.

Myth 1: FMLA is only for women who have babies.

Reality

While FMLA is famously used for maternity leave, it is gender-neutral and covers a wide variety of medical and family needs. FMLA leave is equally available to fathers for the birth and bonding of a child, as well as to any eligible employee, regardless of gender, who needs to care for a sick spouse or parent or address their own serious health condition.

Myth 2: My employer can deny my leave request if it’s inconvenient for them.

Reality

If you are an eligible employee, and the reason for your leave is a covered, qualifying reason, your employer cannot legally deny your request, even if it creates a staffing inconvenience. The only exceptions are if you do not meet the eligibility criteria or if you are a designated “key employee” and the denial of job restoration is necessary to prevent grievous economic injury (a very high bar for employers to meet).

Myth 3: I can be fired while on FMLA leave.

Reality

It is strictly illegal to terminate an employee because they took or requested FMLA leave—this is unlawful retaliation. However, FMLA does not offer absolute job security. An employer can still terminate an employee while on FMLA leave for reasons entirely unrelated to the leave, such as a company-wide layoff or for performance issues that arose before the leave began. The employer must be able to prove the termination would have occurred even if the employee had not taken FMLA leave.

Myth 4: I have to use all my FMLA leave at once.

Reality

This is false. FMLA leave can be taken on a continuous basis (all at once) or on an intermittent basis or reduced leave schedule when medically necessary. Intermittent leave allows you to take leave in separate blocks of time for a single qualifying reason (e.g., two days a month for chemotherapy). A reduced leave schedule changes your usual number of working hours per week or day (e.g., working half-days while recovering from surgery).

Myth 5: My employer doesn’t have to hold my job for me.

Reality

The FMLA explicitly guarantees job restoration. An eligible employee has the right to be restored to the same position or an equivalent position upon their return. An employer who fails to honor this job restoration requirement has violated the FMLA, unless the “key employee” exception applies.

Myth 6: FMLA provides paid leave.

Reality

The FMLA provides unpaid, job-protected leave. While it ensures your job and health benefits are safe, the federal law itself does not mandate that the time off be paid. However, many employees can substitute accrued paid time off (like vacation, personal, or sick days) for FMLA leave.

Furthermore, several states, including California, New York, and New Jersey, have passed separate paid family leave programs that can be used concurrently with federal FMLA leave.

What to Do If Your FMLA Rights Are Violated (Call to Action)

If you believe your employer has violated your FMLA rights—by denying a qualifying request, firing you for taking leave, or failing to restore you to an equivalent position—immediate action is essential.

Steps to Take

Document Everything

The first and most critical step is to create a clear paper trail. Keep detailed records of all communication with your employer regarding your leave, including dates of all requests, responses, medical documentation provided, and any adverse actions taken against you (such as disciplinary warnings or termination notices). Save all internal memos, emails, and notes of conversations.

Consult with an Attorney

FMLA law is complex, and the window for legal action is limited. Strongly consider consulting with an experienced employment law attorney immediately. An attorney can review your specific circumstances, determine if a violation occurred, and advise you on the best path forward, whether that involves negotiating with your former employer or filing a lawsuit.

File a Complaint with the Department of Labor

You have the option to file a complaint with the Wage and Hour Division (WHD) of the U.S. Department of Labor. The WHD investigates FMLA complaints and can order an employer to reinstate you, pay back wages, and restore benefits. This is a powerful, no-cost option, though it is not a substitute for private legal action if you are seeking comprehensive damages.

If you have been denied FMLA leave or suffered termination or demotion after requesting or taking FMLA leave, do not assume you have no recourse.

Schedule Your Free Employment Law Consultation With Law Offices of Todd M. Friedman, P.C.

The Law Offices of Todd M. Friedman, P.C. remains steadfast in our commitment to upholding employee rights and fighting tirelessly against workplace injustice. We believe every worker deserves the security of knowing their job will be waiting for them after they address a serious personal or family matter.

Our team is dedicated to protecting the rights of employees across the country. If you suspect your FMLA rights have been violated, call us today for a consultation. We will fight vigorously to hold employers accountable for their unlawful actions.