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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 the following articles: "Before Asking for FMLA Time Off", Steps To Take When Requesting An FMLA Leave and How To Negotiate For FMLA Leave.  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, see: 

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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Special Rules For Teachers and State Employees

As a general matter, teachers are generally entitled to the same FMLA rights as anyone else. However, there are special rules intended to prevent disruption in the classroom.

State employees in certain states are not protected by the FMLA. It is questionable whether the FMLA applies to state employees in other states.


Special rules for teachers which modify an employee's FMLA rights relate to:

  • Time taken intermittently.
  • If a leave of absence is scheduled to end during the last few weeks of a semester.

If you wish to take leave intermittently, as opposed to a single block of time, such as to accommodate chemotherapy treatments on a weekly basis, and the amount of leave requested is more than 20% of the workweek, your employer can either require you to take the leave in a single block of time, or switch you to another position with equal pay and benefits that would be better suited for intermittent leave.

For example, if you work 5 days a week and request one day off each week for a period of time for medical treatment, you would be requesting 20% of the workweek off as leave. Your employer could require you to either take the full week off as well as subsequent weeks during the duration of your treatment, or your employer could transfer you to another position for the duration of the leave. If, however, your request for time off were limited to only one afternoon per week, you would be under the 20% threshold, providing that you work a 40 hour week, and thus your employer could not require you to take the leave in blocks of time.

If a leave of absence under the FMLA is scheduled to end during the last few weeks of a semester, your employer can require you to extend your leave through the end of that semester. This additional leave would not count against your 12 weeks of leave under the FMLA. During the additional leave your employer would be required to continue your health insurance. Your employer would also be required to hold your job open for the additional weeks of forced leave.


The FMLA specifically indicates that it applies to state employees for qualified employers with 50 or more employees in a 75 mile radius. However, three circuit court of appeals decisions have nullified this provision effectively making the FMLA inapplicable to otherwise qualified state employees -- at least in the states of Arkansas, Delaware, Iowa, Louisiana, Minnesota, Missouri, Mississippi, Nebraska, New Jersey, North Dakota, Pennsylvania, South Dakota and Texas.

  • If you are an employee of one of those states, you may still ask for unpaid leave, but you must be aware that you do not have a right to it unless your state law provides such a right.
  • It is not clear what will happen to state employees requesting FMLA leave in states other than those listed.

If the FMLA does apply

Generally, if you are employed by the state for a minimum of twelve months, whether or not you move between state offices, departments or political sub-divisions, you will be considered employed by a single employer and will meet the twelve-month requirement. Likewise for employment by a county, city, or town. This does not mean that if you work for the state and then for the county, that you have worked for a single employer. A state is a single employer; a county is a single employer; and a city is a single employer.

Caution: There are some unusual cases where this rule does not apply. For example, in Tennessee, the County School System and the County Government have a history of separation and the "single employer" rule does not apply for employees of these entities.

For the law in your state, see State FMLA .

What If I Am Not Entitled To Leave Under The FMLA ?

You have the following options if you are not entitled to FMLA leave:
  • Your state may have a law that is more generous than the FMLA. In that case, your state law controls.  To learn about your state law, click here.
  • You may be entitled to leave as an accommodation under the Americans With Disabilities Act.  Before you consider this option, think about whether the time you need is full time, or whether you can work part time – or even work from home for a while. If either of these scenarios is possible, you may receive some portion of your pay as well as the benefits that you did not receive during your FMLA leave.  Be careful requesting a job accommodation that has you working less than full time after using all of your FMLA leave– you may compromise your eligibility for benefits, including both health insurance and disability benefits
  • Your employer may voluntarily give you the time you need. 

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How Do I Request Leave Under the FMLA?

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The Requirements To Qualify For FMLA Leave

Basically, the FMLA only applies to employees who meet all of the following criteria, each of which are described in more detail in The Requrements To Qualify For FMLA Leave

  • Employees who work for employers with 50 or more employees who work within 75 miles of each other AND
  • Who have been employed with the employer: 
    • For a minimum of 12 months
    • Who have worked for the employer a minimum of 1,250 hours during the last 12 months. Work during the last 12 months does not have to be consecutive. There can be breaks. AND
  • Who need time off because of their own serious health condition or employees who need time off to care for an ill parent, spouse or child.  
    • Any legal relationship to a child qualifies, including step children and adopted children.
    • Adult children do not qualify as a reason for permitted time off.

The FMLA does not generally apply to franchises because each location is owned by a different employer. It would apply if one employer owns franchises within 75 miles of each other that employ a total of 50 or more employees.

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How Much Leave Am I Entitled To Under The FMLA? What If I Need More Time?

You may take up to 12 weeks of unpaid leave during any 12 month period.

Leave does not have to be consecutive. It can be intermittent, so you can take it when you need it. In fact, it could be divided into hours - not just weeks or days.

If you need more than 12 weeks leave because of your health condition, you may possibly be able to obtain it: 


  • If an employee's scheduled hours vary from week to week, the employee's leave entitlement is the weekly average of the hours scheduled over the 12 months prior to the beginning of leave instead of 12 "weeks."
  • For tips about how to maximize benefits if you need time off for health reasons, click here.


What If I Don't Need A Full 12 Weeks Off, Or Need To Take Time Off on A Daily Or Even Hourly Basis?

There are a variety of ways in which you can take FMLA time off:

  • You may take the leave all at once.
  • You may take the leave at different time periods if your employer agrees to such an arrangement, or if it is medically necessary. For example, if you will receive chemotherapy every Friday for treatment of cancer, you can request that your employer provide you with leave under the FMLA each Friday for the duration of your treatment, to the maximum of a total of 12 weeks leave.
  • If your employer agrees, you can even take FMLA time on an hourly basis. For example, your treatments make you nauseous every morning for an hour but pass by 10AM. You can request that your workday not start until 10.
  • If your employer agrees, you can also take a combination of time. Using the above examples, you can take an hour a day until 10AM plus a day a week for treatment.

Caution: If you take FMLA leave intermittently rather than all at once:

  • Your co-workers may have problems with you if they have to pick up the slack.
  • Your employer has a right to transfer you to an alternative position for which you are qualified and which better accommodates recurring periods of leave. The alternative position must be one that provides you with equivalent pay and benefits. When you are able to return to work on a full-time basis, your employer must then return you to your regular position or to one which is equivalent to your regular position.

Before requesting FMLA leave without pay in this situation, see if you can obtain an accommodation that will permit you to take the time you need and not decrease your income.

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How Does The FMLA Relate To Other Time Off To Which I May Be Entitled?

If your employer provides you with paid vacation, sick or personal days, you may elect to use up any accrued days as part of the 12 weeks of FMLA leave. (Of course, the benefit of this is that you get paid for those days, whereas pure FMLA leave is unpaid). If you would normally be entitled to a continuation of benefits during your vacation, sick or personal days, you are entitled to those benefits even though the days count against the FMLA period.

But note: Even if you decide not to substitute paid leave for a portion of your FMLA unpaid leave, your employer can insist that you do so. In other words, if you need to take off twelve weeks of work, your employer may require that you use up your accrued sick or vacation days during the course of those twelve weeks.

Also note: If you want to take paid leave instead of unpaid FMLA time off, your employer is allowed to apply its normal policies for taking paid leave. For instance, if an employer's paid personal leave policy requires two days notice for the use of paid personal leave, an employee who seeks to substitute paid personal leave for unpaid FMLA leave would have to provide two days notice.

AND: For information about how to maximize your benefits if you need time off work for health reasons, click here. 

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Is My Job Protected If I Take FMLA Leave?

The FMLA requires that upon return from FMLA leave, you must be restored to your original job or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment, UNLESS:

  • You are a "key employee" (as described below)
  • You stay out of work beyond the 12 weeks provided by the FMLA, except to the extent the period is extended by similar state laws or if you receive an extension as an accommodation under the Americans With Disabilities Act.

An "equivalent" job has to be substantially equal or similar, not necessarily identical or exactly the same, as the job you did before taking time off under the FMLA.

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What About My Employer Benefits While On FMLA Leave?

This discussion is divided into health insurance and other benefits.

Health Insurance

During your FMLA leave period, your employer is required to maintain your health insurance benefits and to pay the portion of the premium that the employer normally pays.

Your employer is also entitled to collect the portion of the premiums that you would normally contribute while actively at work. For example, if your employer deducts $20 per week from your pay as your contribution to the health insurance premium, you can be required to submit the same $20 per week while you are on leave. Or your employer may decide to make that payment for you and deduct a greater amount upon your return to work to make up for the additional payment.

If your employer provides health insurance for employees at no cost during other types of paid or unpaid leave, the employer would be required to do the same during an FMLA leave of absence. For example, if an employer maintains health insurance during a 30 day leave of absence at no cost to the employee, the employer would be required to maintain your health insurance at no cost to you during the first 30 days of your FMLA leave. Beyond that, your employer could then require your contribution.

Whatever arrangements are made for the continuation of your health insurance, it is important that you follow them to the letter.

Other Benefits Such As Life Insurance, Dental Insurance

There is no requirement for your employer to maintain any of your benefits other than health insurance during an FMLA leave of absence, unless your employer provides a continuation of benefits for other types of paid or unpaid leave.  In other words, the employer may not change established procedure because you are taking leave under the FMLA as opposed to another type of "leave of absence" that may be provided by the employer.

What About My Employer Benefits When I Return To Work?

The FMLA requires employers to reinstate all of your benefits upon your return to work as if there had never been a leave of absence.

Even if your employer does not cover, or permit you to cover, the cost of your additional benefits during your leave, all benefits must be reinstated upon your return to work - and they must be reinstated at the same level as when you went on leave. For example, if your employer provides you with disability insurance, you must be provided the same amount of disability insurance upon your return to work as you had when you went out on leave. 

What Happens To My Employer Benefits If I Do Not Return To Work?

If you do not return to work at the end of the FMLA leave period:

  • If the failure to return to work is by choice:Your employer can seek reimbursement for the premiums it paid for you during your FMLA leave.
  • If the failure to return to work is due to your medical condition or for other reasons beyond your control: The employer cannot seek reimbursement for premiums it paid for you during your FMLA leave.

Once your employment ends, your benefits will cease and will trigger whatever extensions may be provided, such as COBRA for health, dental, and vision or a conversion for group life.


What Information Can An Employer Ask For Under The FMLA?

When you ask for leave under the Family Medical Leave Act (FMLA), your employer may rightfully ask for:

  • The name, address, phone and fax numbers of your health care provider
  • The health care provider's type of practice/specialization
  • The approximate date your health condition began
  • How long your health condition will probably last
  • A description of a serious health condition sufficient to support the need for FMLA leave. For instance, symptoms, diagnosis, doctor visits, medications, continuing treatment etc.

What Are My Responsibilities While On FMLA Leave?

While you are on FMLA leave you are responsible to pay your share of premiums such as for health insurance, and to follow the employer's requirements about keeping your employer informed. (In any event, it is advisable to stay in touch with your employer.)

Your employer can check up on you while you are on leave, but only in a restricted manner.

While on FMLA leave, it is advisable to:

  • Pay what you are supposed to. Follow the arrangements for payment of your share of the health insurance premium as well as any other financial arrangements you make concerning other benefits. Failure to do so could result in a loss of your benefits.
  • Keep your employer to date. If your employer requires to be periodically informed about your intent to return to work, be sure that you follow the specified procedure. Failure to comply with your employer's regulations could result in a loss of your job. Even if there is no requirement, it is advisable to periodically stay in touch with both your Human Resources contact and your immediate supervisor to remind them of your intention to return. It couldn't hurt to express an interest in what has been going on at work since you went on leave.
  • Notify your employer of any changes in your situation. If you need more time off, see:
  •  Keep track of the time you use as you use it. The best evidence of how much time you have taken are records which are made 'contemporaneously' (kept at the same time as the event occurs), rather than those which are created later. If you want to make a change later, rather than white-out the original entry, put a notation next to it, as well as the date you made the notation. Your Work Journal is a good place to keep the notes.Keep your record neat and orderly. You may need to show them to your employer if a dispute arises.

What Can My Employer Do To Check Up On Me While I'm On FMLA Leave?

While an employee is on FMLA leave, an employer may:

  • Ask questions to confirm whether the leave qualifies for  FMLA purposes. 
  • Require periodic reports on an employee's status and intent to return to work after leave.
  • Request another opinion about the need for time off at the employer's expense.
  • With an employee's permission, an employer may have a health care provider representing the employer contact an employee's health care provider to clarify information in the medical certification or to confirm that it was provided by the health care provider. The inquiry may not seek additional information regarding ana employee's health condition or that of a family member.

If the opinions of an employee's and employer's designated health care providers differ, an employer may require certification from a third health care provider, at the employer's expense. This third opinion is final and binding.

If Your Employer Asks For Recertification Of The Need To Continue To Take Time Off

An employer may require recertification of the continuing need for leave from a health care provider no more than every 30 days unless:

  • The original healthcare provider certification was for a longer period, in which case the employer must wait the minimum duration specified OR
  • The employee requests extension of the leave OR
  • Circumstances in the previous certification have changed OR.
  • The employer receives information that casts doubt on the employee's stated reason for the leave. 

In all cases, an employer may request recertification every six months in connection with an absence.


The employer may require the same information as in the original certification.

Second or Third Opinions

There are no second or third opinions required for a recertification.


Recertification is at the employee's expense. 

If no recertification is produced

An employer may deny continuation of the leave until recertification is produced.


Certifications are considered to be confidential medical records that must be maintained in files separate from an employee's personnel file.

NOTE: An employer may provide attendance records to a healthcare provider to ask whether the need for leave is consistent with the employee's serious health condition.


What If I Negotiate For Less Than 12 Weeks Off Under The FMLA, But Find I Need More Time?

If you request and are approved for less than 12 weeks of leave, but realize at some point that you are going to need more time, you have a right to additional leave up to a total of 12 weeks. However, you cannot simply take additional time.  Doing so will jeopardize the protections under the law and will release an employer from any further obligation, including the obligation to maintain an employee's health insurance. 

  • If this situation arises, it is advisable to go back to the employer with a request for extended leave. 
  • Generally, an employee in this scenario is required to provide at least two days notice.

If you do request additional leave:

  • Ask that your employer put approval for the additional leave in writing.
  • Be sure to keep copies of all correspondence and/or make detailed notes of any conversations concerning the additional leave.  

NOTE: If you need more time off than the 12 weeks allowed under the FMLA, you may be able to request the time as a reasonable accommodation under the Americans With Disabilities Act (ADA). The courts have determined that the request for additional time must include a cut off. It cannot be open ended.


  • Taking more than the 12 weeks of leave allowed by the FMLA can raise complicated benefits questions. If you have doubts about your options, speak with a health finance counselor or an attorney.
  • Also keep in mind that your employer does not have an obligation to rehire you if you stay away from work beyond the period protected by law, whether under the FMLA or state law or as an accommodation under the Americans With Disabilities Act.

How To Negotiate For FMLA Leave

Consider the following steps when negotiating for FMLA leave:

Step 1. Think about how much time off you will need. 

Step 2. Pull together information to support your request. Include at least the name and contact information for a person authorized under the FMLA to certify the need. When requesting confirmation from an FMLA authorized professional, keep in mind that under the FMLA, an employer can ask for:

  • Name, address, and phone number of a health care provider.
  • The provider's type of practice (if the person is an oncologist, it discloses that the patient has cancer)
  • The health condition
    • What it is with sufficient detail to support the need for FMLA leave
    • Approximate date the health condition began
    • Esimtate about how long the condition will last

Let the person know the reason for the letter so the content reflects the need. For instance, it is not helpful for a doctor to say "the patient is doing great" when s/he is referring to a response to a treatment rather than the health condition.

Step 3. Decide what you do and do not want to tell your employer.

  • If you haven't disclosed your health condition, this may be the time to do it. (If not, choose a person to certify your need for time off that is not likely to raise quetions about a serious health condition.) For information about disclosing your health condition to your employer, click here. To co-workers, click here.
  • Be sure to let your employer know that health conditions are fluid. Each of us are individuals and there is no telling what will happen from day-to-day. 
  • If additional time off is ultimately required, let the employer know as soon as possible - with a minimum of the amount of notice required by your employer.

Step 4. Decide who to ask.

  • Is there someone in HR or management more friendly to requests like yours?
  • Keep in mind that people on the front line do not usually have as much authority to give you what you need as a person in supervisory position.

Step 5. Decide how to negotiate.

  • Think of the negotiation as friendly - not adversarial. 
  • While understanding your needs, also keep the employer's needs in mind.
  • If you need somet hing out side the norm and do not  t hink of yourself as a good negotiator, perhaps a friend at  work or a supervisor can make the request for you.

Step 6. Confirm the resulting agreement in writing.

Same Sex Couples

Same Sex spouses qualify for family medical leave even if the state you live in does not recognize same-sex marriages. It also does not matter whether the marriage took place outside the U.S.

What To Do If You Are Unlawfully Denied FMLA Leave

If your request for a leave is denied, there are three steps to take. If that doesn't work, you can contact the U.S. Department of Labor (or your state agency if your right stems from a state law) to help you enforce your rights.


If your employer refuses your request for FMLA leave, consider taking the following steps:

Step 1. Make sure you fulfilled all your obligations under the law.

  • Did you give written notice, within the appropriate time period in a clear manner, specifically noting it is a request for FMLA Leave?
  • Did you provide a medical Certification in a timely manner? Did the certification contain all the required information?

Step 2. Check to be sure that your employer understands the law.

A tactful way to question this would be to include an FMLA brochure or fact sheet with your request. You can obtain these documents from the Department of Labor website offsite link or from a Department of Labor office which can be located at offsite link

Step 3. Write an inquiry asking why you do not meet the requirements for eligibility for an FMLA leave and ask for a written response.

If your employer continues to deny your request for leave, or grantsyour request but doesn't keep a job open for you or maintain your benefits, you have the right to enforce the law by filing a complaint and/or a lawsuit. See below


To File A Complaint Under The FMLA

  • Generally complaints involving the FMLA can be resolved by a phone call from the Department of Labor to your employer. If this is not the case, the department may sue your employer on your behalf.
  • To file a complaint, contact your regional office of the Department of Labor's Wage and Hour Division. You can file a complaint by phone, through the mail, or in person.
  • To find the appropriate office, see the state map at: offsite link

To File A Complaint Under Your State Law Similar To The FMLA: Contact your state Department of Labor. To find the correct office, check your local Yellow Pages or go to offsite link and click on "(Name of your state) State Gateway."

NOTE: If you want help with filing a complaint:

  • You have the right to hire an independent attorney and file suit yourself if a complaint cannot be resolved by the Department of Labor (or your state Department of Labor if your rights stem from a state law.) To learn how to find low cost or free attorneys, click here.
  • You may also wish to contact a local disease specific non-profit organization for your condition. They often have experts familiar with issues such as the FMLA who may be willing to intervene on your behalf or provide you with referrals.

What If A Benefit Such As Health Insurance Changes While I Am On FMLA Leave?

The FMLA does not provide any greater rights to benefits for eligible employees than they would receive if they worked continuously during the leave.

Plan changes that apply to active employees also apply to employees on FMLA leave.  For example, if premiums increase or deductibles become higher for everyone in your class, your coverage is affected as well.

NOTE: An employee who would have lost benefits if continuously employed instead of taking FMLA leave is not entitled to retain the benefits just because of the leave.

What Are The Rules For Military Leave?


The FMLA allows eligible employees to take up to 26 weeks of job-protected military caregiver leave during a single 12 month period.

Purpose of the leave

Miliary caregiver leave must be used to care for a covered family member who has a serious illness or injury that was incurred in the line of duty while on active duty in one of the following:

  • The armed forces
  • National Guard
  • Reserves

Who is covered under Military Care Leave

For this section of the FMLA only, a covered family member is one of the following: a spouse, child, parent or next of kin who is a "covered service member."

A covered service member is a person who is a member of one of the above forces and who is undergoing medical treatment, recuperation or therapy on an outpaient basis, or who is otherwise on the temporary disability retired list for a serious injury or illness incurred in the line of duty on active duty that may render the service member medically unfit to perform the duties of the service member's office, grade, rank or rating. 

Former members of the subject forces do not fall within the definition of covered service members.

Length of Military Care Leave

Entitlement to military caregiver leave is limited to 26 work weeks of leave in each 12 month period, per covered servicemember, per injury. 


Eligible employees are permitted to take up to 12 weeks of job-protected leave for a qualifying event which arises from the employee's spouse, child or parent who is in the National Guard or Reserves being notified of an impending federal call or order to active duty in the armed forces in support of a contingency operation. Since leave does not relate to medical causes, it is beyond the scope of this article.