Meet Our Family and Medical Leave Act (FMLA) Attorneys

The FMLA is a federal law enacted in 1993 that grants eligible employees up to 12 weeks of unpaid leave per year for qualifying family and medical reasons. The primary goal is to help employees balance their work and personal responsibilities without compromising their job security. Key provisions of the FMLA include:

• Up to 12 weeks of unpaid leave per year for qualifying medical and family-related reasons
• Job protection during leave, ensuring employees return to the same or an equivalent position
• Continuation of health benefits during leave
• Special leave provisions for military families

To qualify for FMLA leave, employees must meet specific criteria:

• Employment tenure: The employee must have worked for the employer for at least 12 months (not necessarily consecutive).
• Hours worked: The employee must have worked at least 1,250 hours in the 12 months preceding the leave request.
• Employer size: FMLA applies to employers with 50 or more employees within a 75-mile radius.
• Military families: Special provisions allow up to 26 weeks of leave for military caregivers.

Employees can take FMLA leave for the following reasons:

• Serious health conditions: Covers chronic illnesses, hospital stays, and ongoing medical treatment.
• Maternity and paternity leave: Includes childbirth, prenatal care, and bonding time with a newborn.
• Military family leave: Allows time off for military deployment-related issues.
• Foster care and adoption: Provides time to adjust to a new child joining the family.
• Mental health conditions: Covers conditions like anxiety, depression, and PTSD if they meet FMLA’s definition of a serious health condition.

The Family Medical Leave Act (FMLA) allows eligible employees to take up to 12 weeks of unpaid, job-protected leave per year for certain family and medical reasons. Here’s how it works:

1. Applying for FMLA Leave

To take FMLA leave, an employee must:

• Notify their employer at least 30 days in advance if the leave is foreseeable (e.g., planned surgery, childbirth).
• Provide documentation if required (such as a medical certification from a healthcare provider).
• Follow employer procedures for requesting leave, which may include filling out specific forms.

2. How Leave is Structured

FMLA leave can be taken in three ways:

• Continuous Leave – The employee takes all 12 weeks at once (after childbirth or major surgery).
• Intermittent Leave – The employee takes leave in separate blocks of time for ongoing medical treatment or flare-ups (chemotherapy, chronic migraines).
• Reduced Schedule Leave – The employee temporarily reduces work hours due to a medical condition.

3. Employer Responsibilities

• Employers must continue the employee’s health insurance as if they were still working.
• Employers cannot retaliate against employees for taking FMLA leave.
• Employers must reinstate the employee to the same or an equivalent position after their leave ends.

4. Tracking and Limitations

• FMLA provides 12 weeks of leave per 12-month period.
• The FMLA 3-day rule states that an employee must be incapacitated for at least three consecutive days before qualifying for FMLA.
• Military caregivers may qualify for up to 26 weeks of leave in a single 12-month period.

Once FMLA leave ends, you return to the same or an equivalent job. If your leave extends beyond 12 weeks, job protection no longer applies unless additional protections exist (ADA accommodations, state laws).

Employees taking FMLA leave are entitled to:

• Job protection: Employers must reinstate employees to the same or an equivalent position after leave.
• Continued health benefits: Employers must maintain the employee’s health insurance under the same terms as before leave.
• Protection against retaliation: Employers cannot fire, demote, or penalize an employee for using FMLA leave.

Employers must:

• Post FMLA notices informing employees of their rights
• Process leave requests fairly and promptly
• Maintain proper documentation of FMLA leave approvals and denials
• Avoid retaliation against employees using FMLA leave

Violating FMLA can result in legal action, including fines and employee lawsuits. If you suspect bad faith practices, contact Morgan & Morgan for a free case evaluation.

FMLA leave is unpaid by default, but employees may:

• Use accrued paid time off (PTO) or sick leave during FMLA leave
• Apply for short-term disability benefits in cases of serious medical conditions
• Benefit from state-specific paid leave laws, such as California’s Paid Family Leave program

FMLA can be complex for both employees and employers, leading to challenges and misconceptions. Here are some of the most common ones:

Common Challenges With FMLA

Employer Resistance and Wrongful Denials

Some employers wrongly deny FMLA requests, either due to lack of understanding or an attempt to avoid granting leave. Employers may also misclassify employees as ineligible when they actually qualify.

Lack of Documentation or Communication

Employees must provide proper medical certification from a healthcare provider. If documentation is incomplete or late, employers may delay or deny leave. Employees must also give proper notice (30 days for foreseeable leave, as soon as possible for emergencies).

Tracking Intermittent Leave

Intermittent FMLA leave (taken in separate blocks of time) is challenging to track, leading to disputes over how much leave an employee has used.

Some employers require employees to call in daily or provide excessive updates, making it difficult to manage.

Confusion Over Paid vs. Unpaid Leave

FMLA itself is unpaid, but many employees assume they will receive income during their leave. Employees can use PTO, sick leave, or short-term disability benefits to get paid, but policies vary by employer.

Job Protection Loopholes

Some employees believe FMLA guarantees their exact job back—but employers only have to provide the same or equivalent position. Key employees (such as high-ranking executives) may not be entitled to reinstatement if their absence causes major financial harm to the company.

Common Misconceptions About FMLA

“FMLA Applies to All Employers”

False. Only employers with 50 or more employees within a 75-mile radius are covered under FMLA.

“All Employees Qualify for FMLA”

False. Employees must have worked for their employer for at least 12 months and completed 1,250 hours of work in the past year.

“FMLA Leave is Always Paid”

False. FMLA is unpaid unless an employer allows the use of PTO, sick leave, or disability benefits.

“FMLA Covers Any Illness”

False. Only serious health conditions that require ongoing treatment or incapacity of three or more consecutive days qualify.

“Employers Can Fire Employees on FMLA Leave”

False, with exceptions. Employers cannot terminate employees just for taking FMLA leave, but they can fire employees for other legitimate reasons (e.g., company-wide layoffs, policy violations).

“FMLA Leave Can Be Extended Beyond 12 Weeks”

False, unless other laws apply. Once an employee has used their 12 weeks of FMLA leave, their job is no longer protected unless:

• They qualify for ADA accommodations.
• They are covered by state laws offering additional leave.

Your employer can deny your FMLA request only under specific circumstances. If you meet all eligibility requirements and provide the necessary documentation, your employer cannot legally deny your request. However, there are situations where a denial is valid.

When Can an Employer Deny FMLA?

You Don’t Meet the Eligibility Requirements

• You haven’t worked for the company for at least 12 months.
• You haven’t worked at least 1,250 hours in the past 12 months.
• Your employer has fewer than 50 employees within a 75-mile radius (unless they are a government agency or school).

Your Reason for Leave Doesn’t Qualify

• FMLA only applies to serious health conditions or family-related reasons (e.g., birth, adoption, military leave).
• If your condition isn’t medically certified as a serious health issue, your employer may deny the request.

You Fail to Provide Proper Notice or Documentation

• If your leave is planned (surgery, childbirth), you must give your employer at least 30 days’ notice.
• For emergencies, you must notify your employer as soon as possible.
• Your employer can require medical certification from a doctor and may deny your request if you don’t provide it in time.

You’ve Used Up Your 12 Weeks of FMLA Leave

• FMLA provides up to 12 weeks of leave per year.
• If you’ve already taken 12 weeks, your employer can legally deny additional leave.

When an Employer Cannot Deny FMLA

Retaliation or discrimination: Your employer cannot deny your leave because they don’t want you to take time off.

Job performance issues: Even if you’re on a performance plan, your right to FMLA is still protected.

“Too many employees are out” excuse: Staffing shortages are not a legal reason to deny FMLA.

What to Do If Your FMLA Request Is Denied

• Ask for a written reason for the denial.
• Check your eligibility—confirm you meet all FMLA requirements.
• Provide missing documentation if requested.
• File a complaint with the U.S. Department of Labor (DOL) if you believe your rights were violated.
• Consult an attorney at Morgan & Morgan if you suspect wrongful denial or retaliation.

If you need more than 12 weeks of leave, your options depend on your employer’s policies, state laws, and whether you qualify for other types of leave. FMLA only guarantees up to 12 weeks of unpaid, job-protected leave per year, but here’s what you can do if you need more time:

Check If You Qualify for Additional Leave Under the ADA (Americans with Disabilities Act)

If your medical condition qualifies as a disability, the ADA may require your employer to provide extended leave as a "reasonable accommodation." The ADA applies to employers with 15 or more employees and requires individual case-by-case assessments.

Your employer isn’t required to grant indefinite leave, but they must consider additional time if it doesn’t cause undue hardship to the business.

Use State-Specific Leave Laws

Some states offer additional job-protected leave beyond the federal FMLA. For instance, in California, employees may qualify for up to 12 more weeks under the California Family Rights Act (CFRA).

New York’s Paid Family Leave (PFL) offers up to 12 weeks of paid leave for certain family-related reasons. New Jersey, Rhode Island, Massachusetts, and Washington also offer extended paid leave benefits.

Check your state’s laws to see if you qualify for additional job protection or paid benefits.

Consider Employer-Sponsored Leave Options

Some employers offer:

• Extended medical leave policies (beyond FMLA)
• Short-term disability (STD) insurance (may provide partial income for medical leave)
• Paid time off (PTO) or vacation days

Check your company’s employee handbook or HR department for extended leave options.

Request a Personal Leave of Absence

Even if FMLA has expired, some employers allow unpaid personal leave on a case-by-case basis. Unlike FMLA, however, this leave does not guarantee job protection. Your employer may fill your position.

File for Social Security Disability or Long-Term Disability

If you can’t return to work indefinitely, you may need to apply for Social Security Disability Insurance (SSDI) for long-term disability benefits or long-term disability (LTD) insurance if your employer or private policy covers it.

Yes, intermittent FMLA leave allows employees to take time off in smaller increments.

Yes, if a mental health condition qualifies as a serious health condition.

No, your job is protected, but you can be terminated for unrelated reasons, such as company layoffs. If your employer violates this right, contact Morgan & Morgan immediately.

New parents can take up to 12 weeks of FMLA leave for childbirth, bonding, or adoption.

Yes, if the employer meets the 50-employee threshold within a 75-mile radius.

You can file a complaint with the U.S. Department of Labor plus seek legal assistance from the employment law firm Morgan & Morgan. Our legal team can advise you on your next best steps, how to take action, and what compensation you may be eligible for. You can get started in minutes with a free case evaluation.

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