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What is FMLA? The Family and Medical Leave Act, explained

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8 mins

Have you considered taking advantage of the Family and Medical Leave Act (FMLA) due to the impending birth of a child, an ailing aging parent, or sick spouse? You may also have your own health conditions that you need to monitor, and the FMLA offers certain protections for qualified employees.

When you know you'll need to tap into the FMLA, you may want to know as much as possible beforehand. Here's what you need to know.

What is the Family and Medical Leave Act (FMLA)?

As an employee, you can tap into 12 weeks of unpaid, job-protected leave every year through the FMLA, in addition to health benefits.

All public agencies, schools, and companies with 50 or more employees must adhere to the FMLA. All qualified employers must allow for 12 weeks of unpaid leave each year as long as you qualify for any of the following reasons:

  • The birth of a son or daughter
  • Adoption or foster care
  • Caring for an immediate family member such as a spouse, child, or parent with a serious health condition (though this provision doesn't apply to a parent-in-law)
  • Medical leave for your own serious health condition
  • Qualifying situations for a spouse, son, daughter, or parent members of the National Guard, Reserves, or Regular Armed Forces

You must meet a few requirements to qualify for FMLA:

  • You must have worked for your employer for at least 12 months. Nonconsecutive work can occur but if you have a break in service that lasted more than seven years, you generally can't count that amount of time.
  • You must have worked at least 1,250 hours.
  • You must work at a location where the company employs 50 or more employees within 75 miles.

Private employers with fewer than 50 employees may get coverage through state family and medical leave laws. Government agencies must allow coverage by the FMLA regardless of the number of employees they have.

Learn More: Short-Term Disability vs. FMLA

How does FMLA work?

You can take FMLA leave as a single block of time or in smaller chunks of time. For example, you may need to care for a family member who has surgery for two weeks, then maybe again if the family member needs a follow-up surgery six months later.

Another example could involve taking several grouped days off, spread throughout the year, due to your own recurring knee injury.

Your employer must:

  • Continue your health insurance.
  • Return you to the same job or a job identical to it.
  • Not hire, promote, discipline, or fire you due to you taking FMLA.
  • Allow you to take sick time, vacation time, or personal time so you can get paid during leave because the FMLA itself does not offer paid leave.

You must follow your employer’s normal leave rules, which may involve submitting a leave form or giving advance notice in some other way. Your employer can require you to use your paid leave, such as saved-up vacation time, during your FMLA leave, though the FMLA still protects your leave time.

How long is FMLA?

You may be able to take up to 12 weeks of job-protected time off under the FMLA.

Again, you can take 12 weeks off, parceled out over a calendar year. However, employers may measure this amount of time differently. Your employer may count it as 12 months from the first time you take leave or based on a fixed year like your work anniversary date. Your employer may also count it as a rolling 12-month period measured backward from the date you use FMLA leave.

If you need to leave to care for a covered servicemember with a serious injury or illness, you can take up to 26 weeks of unpaid, job-protected leave during that 12-month period as long as you are an eligible employee.

How to apply for FMLA

You must give 30-day advance notice of your need to take FMLA. However, unusual circumstances may occur. In an emergency situation, you must let your employee know as soon as possible.

You do not need to specifically assert your rights under the FMLA when you use it for the first time or even mention FMLA. However, you must provide your employer with enough information so your employer can determine whether the leave request warrants leave. You must make your employer aware of your need for FMLA leave and give your estimation on when and how long you'd need to leave work.

Next, you must fill out the correct form from the FMLA website. Your employer may help you obtain the right form for you:

  • Fill out the WH-380-E form because you are ill or have some other medical condition.
  • Fill out the WH-380-F form if you will care for a family member with a serious health condition.
  • Fill out the WH-384 form to take leave under the active duty “qualifying exigency” provision.

Next, take your form to your health care provider within 15 days of receiving the form from your employer. You must submit the form within this specified time period to qualify for the FMLA. Your health care provider will include the type of health condition, medications prescribed, and required treatment on the form.

Your employer can ask you for more information about your FMLA leave within five business days of your request. Your employer should request medical certification within five days after the leave begins if you had to leave work under unforeseen circumstances.

Except for unforeseen circumstances, your employer must notify you within five business days as to whether you've been approved for FMLA leave. Your employer must also alert you as to why you don't qualify within five business days.

What to do when FMLA runs out

You cannot get FMLA leave beyond the 12 weeks covered in the law. However, your employer may have an additional policy about family and medical leave. For example, Inc. offers 20 weeks of paid maternity leave.

Your employer must reinstate you to the same position you held prior to your leave or an “equivalent position" when you return from FMLA. An "equivalent position" means that the role looks identical to your previous job — pay, benefits, and other working conditions must look the same. Your employer might have violated FMLA if:

  • The new role pays less than your previous position.
  • Your benefits changed.
  • Your work hours, shift, or schedule changed.
  • The job duties of each position changed drastically.
  • The new worksite changed locations.

The FMLA also sets deadlines for reinstatement by your employer. Your employer must reinstate you on the date you say you will return.

Your employer has two business days to reinstate you if your return date changes due to a delay or an earlier-than-expected return date.

The Biden Administration's plan for family leave

President Biden has outlined a national comprehensive paid family and medical leave program. The program will ensure partial wage replacement with up to $4,000 per month, with a minimum of two-thirds of average weekly replacement wages. This amount would rise to 80 percent for the lowest-wage workers. By year 10 of the program, the plan will guarantee 12 weeks of paid parental, family, personal illness, and safe leave. Workers will get an automatic three days of bereavement leave in the first year.

Under the plan, employees could:

  • Take time to bond with a new child.
  • Care for a seriously ill loved one.
  • Handle a loved one's military deployment.
  • Flee from sexual assault, stalking, or domestic violence.
  • Heal from a serious illness.
  • Take time to grieve the death of a loved one.

The Biden administration estimates that this program will cost $225 billion over a decade.

Know the details of FMLA before you take it

Make sure you understand the FMLA details, particularly when you need to notify your employer that you will need to take leave. You want to let your employer know well in advance or risk disqualification.

Try to remain as forthcoming as possible with all documentation, especially regarding the documentation from your doctor. In addition, stay in touch with your employer before, during, and after your leave to make sure you understand the details and that your employer hasn't violated your rights.

FMLA offers a wonderful opportunity to care for family members or yourself when medical or military needs crop up during the regular course of your career.

The information and content provided herein is for educational purposes only, and should not be considered legal, tax, investment, or financial advice, recommendation, or endorsement. Breeze does not guarantee the accuracy, completeness, reliability or usefulness of any testimonials, opinions, advice, product or service offers, or other information provided here by third parties. Individuals are encouraged to seek advice from their own tax or legal counsel.

— Published May 28, 2021
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