Employment Law Guide
Chapter: Family and Medical Leave
Updated: September 2005
Family and Medical Leave Act of 1993
§2601 et seq.; 29 CFR
The Family and Medical Leave Act (FMLA) provides a means for employees
to balance their work and family responsibilities by taking unpaid leave for
certain reasons. The Act is intended to promote the stability and economic
security of families as well as the nation's interest in preserving the
integrity of families.
The FMLA applies to any employer in the private sector who engages in
commerce, or in any industry or activity affecting commerce, and who has 50 or
more employees each working day during at least 20 calendar weeks in the
current or preceding calendar year.
The law covers all public agencies (state and local governments) and
local education agencies (schools, whether public or private). These employers
do not need to meet the "50 employee" test. Title II of FMLA covers most
federal employees, who are subject to regulations issued by the Office of
To be eligible for FMLA leave, an individual must (1) be employed by a
covered employer and work at a worksite within 75 miles of which that employer
employs at least 50 people; (2) have worked at least 12 months (which do not
have to be consecutive) for the employer; and (3) have worked at least 1,250
hours during the 12 months immediately before the date FMLA leave begins.
* The Family and Medical Leave Act was amended on January 28, 2008. Please visit Wage and Hour's Web page for additional information.
The FMLA provides an entitlement of up to 12 weeks of job-protected, unpaid leave during any 12-month period for the following reasons:
- Birth and care of the employee's child, or placement for adoption or foster care of a child with the employee;
- Care of an immediate family member (spouse, child, parent) who has a serious health condition; or
- Care of the employee's own serious health condition.
If an employee was receiving group health benefits when leave began, an
employer must maintain them at the same level and in the same manner during
periods of FMLA leave as if the employee had continued to work. Usually, an
employee may elect (or the employer may require) the use of any accrued paid
leave (vacation, sick, personal, etc.) for periods of unpaid FMLA leave.
Employees may take FMLA leave in blocks of time less than the full 12
weeks on an intermittent or reduced leave basis when medically necessary.
Taking intermittent leave for the placement, adoption, or foster care of a
child is subject to the employer's approval. Intermittent leave taken for the
birth and care of a child is also subject to the employer's approval except for
pregnancy-related leave that would be leave for a serious health condition.
When the need for leave is foreseeable, an employee must give the
employer at least 30 days notice, or as much notice as is practicable. When the
leave is not foreseeable, the employee must provide such notice as soon as
An employer may require medical certification of a serious health
condition from the employee's health care provider. An employer may also
require periodic reports during the period of leave of the employee's status
and intent to return to work, as well as "fitness‑for‑duty"
certification upon return to work in appropriate situations.
An employee who returns from FMLA leave is entitled to be restored to
the same or an equivalent job (defined as one with equivalent pay, benefits,
responsibilities, etc.). The employee is not entitled to accrue benefits during
periods of unpaid FMLA leave, but the employer must return him or her to
employment with the same benefits at the same levels as existed when leave
Employers are required to post a notice for employees outlining the
basic provisions of FMLA and are subject to a $100 civil money penalty per
offense for willfully failing to post such notice. Employers are prohibited
from discriminating against or interfering with employees who take FMLA leave.
The FMLA provides that eligible employees of covered employers have a
right to take up to 12 weeks of job-protected leave in any 12-month period for
qualifying events without interference or restraint from their employers. The
FMLA also gives employees the right to file a complaint with the Wage and Hour
Division of the Department of Labor's Employment Standards Administration, file a private lawsuit under the Act (or cause a complaint or lawsuit
to be filed), and testify or cooperate in other ways with an investigation or
lawsuit without being fired or discriminated against in any other manner.
The Wage and Hour Division of the Employment Standards Administration
administers FMLA. More detailed information, including copies of explanatory
brochures, may be obtained by contacting your local
Wage and Hour Division office. In
addition, the Wage and Hour Division has developed the elaws
Family and Medical Leave Act Advisor, which is an
online resource that answers a variety of commonly asked questions about FMLA,
including employee eligibility, valid reasons for leave, notification
responsibilities of employers and employees, and rights and benefits of
employees. Compliance assistance information is also available from the
Wage and Hour Division's Web
site. For additional assistance, contact the Wage and Hour Division
Employees and other persons may file complaints with the Employment
Standards Administration (usually through the nearest office of the Wage and
Hour Division). The Department of Labor may file suit to ensure compliance and
recover damages if a complaint cannot be resolved administratively. Employees
also have private rights of action, without involvement of the Department of
Labor, to correct violations and recover damages through the courts.
A number of states have family leave statutes. Nothing in the FMLA
supersedes a provision of state law that is more beneficial to the employee,
and employers must comply with the more beneficial provision. Under some
circumstances, an employee with a disability may have rights under the
Americans with Disabilities Act.
The Employment Law Guide is offered as a public resource. It
does not create new legal obligations and it is not a substitute for the U.S.
Code, Federal Register, and Code of Federal Regulations as the official sources
of applicable law. Every effort has been made to ensure that the information
provided is complete and accurate as of the time of publication, and this will
continue. Later versions of this Guide will be offered at
www.dol.gov/compliance or by calling our Toll-Free
Help Line at 1-866-4-USA-DOL (1-866-487-2365).