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Family & Medical Leave Act (FMLA)

Overview

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1/23

The federal Family and Medical Leave Act (FMLA) was created to give patients and caregivers time off from work when needed while balancing the employer's needs. The same rules apply to both patients and their caregivers. There are also state laws which provide additional rights.

In sum, the FMLA provides that:

  • Certain employees can take up to 12 weeks of unpaid leave each year.
    • If  you are not covered under the FMLA, you may be covered under similar state laws. In fact, several of the state laws provide more benefits than the federal FMLA - such as paid leave.
  • The time off does not have to be consecutive. It can be broken-up. It can even be taken one hour at a time. (This is known as "intermittent leave.")
  • Group health benefits (such as health insurance) must be maintained during the leave. Other benefits must be reinstated upon return to work.
  • The FMLA provides job protection on return to work, except for certain key employees.  
  • Employees must give an employer appropriate notice and, if requested, proof of the need for the leave from a healthcare provider. Employers may request a second medical opinion. If there is disagreement, both parties may request a third opinion. A third opinion is binding on both parties.
  • Employees on leave have continuing responsibilities, including complying with a request for recertification.
  • An employer may not transfer an employee to discourage an employee from taking leave or otherwise cause a hardship on the employee. An employer is also prohibited from requiring that an employee take more leave than necessary.

If a health condition requires more than 12 weeks leave, additional time off may be available as accommodation under the Americans With Disabilities Act (ADA). (Court cases say that  a request for time off work must be a request for a specific period of time in order to qualify under the ADA. An open ended request is not "reasonable.") However, If an employee stays away from work beyond the period protected by the FMLA, there is no rehire obligation.  

Before requesting for FMLA time off, it is advisable to follow the steps linked to below in "Before Asking for FMLA Time Off" and "How To Ask For FMLA Time Off."  If you are not taking all the time at once, we provide a tool to help you keep track of time off. 

For additional information, including the steps to take before asking for FMLA leave and keeping track of time off, click on the link:

NOTE:  If you do not want to disclose your health condition, there  are a variety of professionals who can certify the need for time off without disclosing your basic health condition.

       Reviewed and edited by Lisa Gerson, Esq.
                                                                                              McDermott Will & Emery LLP
                                                                                              340 Madison Avenue
                                                                                              New York, New York 10173-1922

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