To get leave under the Family and Medical Leave Act, you need to work for a covered employer, meet the individual eligibility tests, give notice for a qualifying reason, and submit a medical certification so your employer can formally designate the time off as FMLA-protected. If you clear those steps, you are entitled to up to 12 weeks of unpaid, job-protected leave in a 12-month period, with your group health insurance maintained on the same terms as if you were still working.1U.S. Department of Labor. Family and Medical Leave (FMLA)
First, Confirm You’re Eligible
FMLA covers you only if your employer is covered and you personally meet three tests. Private-sector employers are covered when they employ 50 or more workers for at least 20 calendar workweeks in the current or preceding year. Public agencies and public and private elementary and secondary schools are covered no matter their size.2eCFR. 29 CFR 825.104 – Covered Employer
On the employee side, all three of these must be true when you give notice of your need for leave:
- You have worked for the employer for at least 12 months. The months do not have to be consecutive, but gaps of seven years or more generally do not count.
- You have logged at least 1,250 hours of actual work during the 12 months immediately before your leave starts. Paid vacation, sick days, and holidays are excluded; overtime counts.
- Your worksite has at least 50 employees of the same employer within a 75-mile radius.
3eCFR. 29 CFR 825.110 – Eligible Employee If you were placed through a staffing agency, the agency and the company where you actually work may both count as your employers, and agency-placed workers count toward the 50-employee threshold at both.4eCFR. 29 CFR 825.106 – Joint Employer Coverage
Make Sure Your Reason Qualifies
You can use up to 12 workweeks of FMLA leave in a 12-month period for any of four reasons:
- Bonding with a new child after birth, adoption, or foster placement, taken within 12 months of the birth or placement.
- Caring for your spouse, child, or parent with a serious health condition.
- Your own serious health condition that makes you unable to perform your job.
- A qualifying exigency arising from your spouse, child, or parent being on or called to covered active duty.
A separate entitlement of up to 26 workweeks in a single 12-month period covers caring for a current servicemember or recent veteran with a serious injury or illness. If you and your spouse work for the same employer, you share a combined 12 weeks for new-child bonding and for caring for a parent, and a combined 26 weeks for military caregiver leave.5U.S. Department of Labor. Fact Sheet 28L – Leave Under FMLA When Spouses Work for the Same Employer
What Counts as a Serious Health Condition
A serious health condition is not any illness that keeps you home. It means a condition involving inpatient care (an overnight hospital stay) or continuing treatment by a healthcare provider. Continuing treatment requires a period of incapacity of more than three consecutive full calendar days, combined with either two in-person medical visits within 30 days of the first day of incapacity (the first within seven days), or one in-person visit within seven days that results in an ongoing treatment plan supervised by a provider. Chronic conditions such as asthma, diabetes, or epilepsy also qualify if you see a provider at least twice a year for them.6eCFR. 29 CFR 825.115 – Continuing Treatment
Give Your Employer Notice
When your need for leave is foreseeable, such as a scheduled surgery, an expected due date, or a planned course of treatment, you must give your employer at least 30 days’ advance notice. When 30 days is not possible, give notice as soon as you reasonably can, typically the same day or next business day after you learn of the need.7eCFR. 29 CFR 825.302 – Employee Notice Requirements for Foreseeable FMLA Leave
You do not have to say the words “FMLA” when you first tell your employer, but you do have to give enough information for the employer to know the absence may be FMLA-qualifying. Follow your company’s normal call-in procedures for absences while your request is being processed.
Get Medical Certification
Your employer will almost certainly require a medical certification. The Department of Labor publishes standardized forms your provider can complete:
- Form WH-380-E for your own serious health condition.
- Form WH-380-F for caring for a family member with a serious health condition.
- Form WH-384 for a military qualifying exigency, which requires documentation of the servicemember’s active duty orders and the type of exigency.
The forms are available through the Department of Labor or your HR department.8eCFR. 29 CFR 825.306 – Content of Medical Certification
The provider needs to describe the condition, when it started, and how long it is expected to last. A specific diagnosis is not required, but the form must contain enough medical detail to show the condition qualifies. For your own condition, the provider must explain how it prevents you from performing your job duties. For a family member’s condition, the provider must describe the care or assistance the patient needs.
Before you hand the form to your doctor, fill in the employee section: your name, your employer’s name, and a short description of your job duties. Attach a current job description if you have one. Review the completed form before submitting it. Incomplete or unreadable certifications are one of the most common causes of delay and denial.
Submit the Request and Track the Response
Give your completed certification to human resources or your designated supervisor. Many employers accept digital submissions through email or a benefits portal. Ask for a receipt or written confirmation so you have a dated record of when you filed.
Federal regulations then put your employer on a clock. Within five business days, the employer must issue an eligibility notice on Form WH-381 telling you whether you meet the hours-of-service and length-of-employment requirements. If you are not eligible, that notice has to state at least one reason.9eCFR. 29 CFR 825.300 – Employer Notice Requirements
If your leave is approved, the employer has another five business days after it has enough information to issue a designation notice on Form WH-382. The designation confirms the leave is FMLA-protected, specifies how much of your 12-week entitlement it will use, and states whether you must run accrued paid leave concurrently. If your medical certification is incomplete, the employer has to tell you in writing exactly what additional information is needed.9eCFR. 29 CFR 825.300 – Employer Notice Requirements
Intermittent Leave
You are not required to take your 12 weeks in one block. When it is medically necessary, such as for recurring chemotherapy or chronic flare-ups, you can take FMLA leave intermittently or on a reduced schedule without your employer’s permission. For bonding leave after the birth or placement of a healthy child, intermittent leave is available only if your employer agrees.10eCFR. 29 CFR 825.202 – Intermittent Leave or Reduced Leave Schedule Your employer must track intermittent leave in the smallest increment it uses for any other type of leave, and that increment cannot exceed one hour.11eCFR. 29 CFR 825.205 – Increments of FMLA Leave for Intermittent or Reduced Schedule Leave
Pay, Paid Leave, and Health Insurance During Leave
FMLA itself is unpaid. Your employer can require you to use accrued vacation, sick, or personal time concurrently with FMLA leave, and you can choose to do so voluntarily. When paid leave runs concurrently, you get a paycheck under the normal paid leave policy, but the time still counts against your 12-week entitlement. If you do not follow the employer’s rules for using paid leave, you may lose the substitution option, but your unpaid FMLA protection stays intact.12eCFR. 29 CFR 825.207 – Substitution of Paid Leave
Your employer must keep your group health insurance in force during FMLA leave on the same terms as if you were still working. You keep paying your share of the premium, and the employer should set up a payment method with you before leave begins. If your payment is more than 30 days late, coverage can be dropped, but only after the employer mails a written notice at least 15 days before termination so you can catch up.13eCFR. 29 CFR 825.212 – Employee Failure to Pay Health Plan Premium Payments
When you come back, your health coverage must be restored on the same terms with no new medical exam, pre-existing condition waiting period, or open enrollment delay, even if your coverage lapsed for missed premiums.13eCFR. 29 CFR 825.212 – Employee Failure to Pay Health Plan Premium Payments Vacation accrual, seniority, and retirement contributions do not necessarily continue during unpaid leave, but whatever you had accrued before must be available when you return, and FMLA leave cannot be treated as a break in service for retirement vesting or eligibility.14eCFR. 29 CFR 825.215 – Equivalent Position
Returning to Your Job
When your leave ends, your employer must restore you to the same job or an equivalent one. Equivalent means virtually identical in pay, benefits, working conditions, duties, responsibilities, and authority. You are entitled to any unconditional pay increases that took effect during your absence, the same shift or schedule, and a worksite that does not significantly increase your commute. You cannot be required to requalify for benefits, including dependent coverage, that you had before leave.14eCFR. 29 CFR 825.215 – Equivalent Position
If you took leave for your own serious health condition, your employer can require a fitness-for-duty certification from your provider before you return, but only under a uniformly applied policy that requires the same thing of all similarly situated employees. The certification can be required to address the essential functions of your job only if the employer gave you a list of those functions with your designation notice. For intermittent leave, an employer generally cannot demand a fitness-for-duty certification after every absence, though it may request one up to once every 30 days if there are reasonable safety concerns.15eCFR. 29 CFR 825.312 – Fitness-for-Duty Certification
If Your Employer Denies Leave or Retaliates
Federal law bars your employer from interfering with your FMLA rights or retaliating against you for using them. Interference covers not just outright denial but also discouraging you from taking leave. Your employer cannot count FMLA absences against you under a no-fault attendance policy or use FMLA leave as a negative factor in hiring, promotions, or discipline. Transferring employees to shrink a worksite below 50, changing job duties to disqualify someone, and cutting hours to push a worker under 1,250 are all specifically prohibited.16eCFR. 29 CFR 825.220 – Protection for Employees Who Request Leave or Otherwise Assert FMLA Rights
If you believe your rights were violated, you can file a complaint with the Department of Labor’s Wage and Hour Division at 1-866-487-9243 or online through the WHD website.17U.S. Department of Labor. How to File a Complaint You can also file a private lawsuit in federal or state court. The deadline is generally two years from the last violation, or three years if the violation was willful.18U.S. Department of Labor. Family and Medical Leave Act Advisor – Enforcement of the FMLA A successful case can recover lost wages and benefits, interest, and an equal amount in liquidated damages, plus attorney fees and court costs. Courts can also order reinstatement or promotion. Liquidated damages may be reduced if the employer proves the violation was in good faith.19Office of the Law Revision Counsel. 29 USC 2617 – Enforcement
State Paid Leave Programs
Federal FMLA is unpaid and does not apply to smaller employers. More than a dozen states and the District of Columbia have enacted their own paid family and medical leave programs that typically provide partial wage replacement, cover smaller employers, and may reach relationships federal law does not, such as siblings or grandparents. If you live in one of those states, you may qualify for paid state benefits even when you do not meet federal FMLA’s tests, or you may be able to use both together. Contact your state’s labor department to see what applies to you.