Family and Medical Leave

If you're eligible under the Federal Family and Medical Leave Act (FMLA), then your employee rights entitle you to take up to 12 weeks of unpaid, job-protected work leave in any 12-month period:

• For the birth, adoption or placement of a child
• To care for yourself if you can't work due to a serious health condition
• To care for a qualified family member suffering from a serious health condition
• For a "qualifying exigency" arising from a family member's call-up to active military duty

Your employee rights under the FMLA also entitle you to take up to 26 weeks of unpaid, job-protected, military family leave to care for a qualified family member suffering from a serious injury or illness incurred while on active military duty.

Update: The U.S. Department of Labor has published a new final rule that permits eligible employees in legal same-sex marriages to take FMLA leave for their spouses. The effective date of the new rule is March 27, 2015. For more information, see Final Rule to Revise the Definition of “Spouse” Under the FMLA by the Department of Labor.

To become eligible to take FMLA leave you must meet specified criteria, including employment with a covered employer for at least 12 months. Generally, the FMLA covers employers with 50 or more employees.

As indicated, your employer is not required to pay you while you're absent from your job on family or medical leave. Generous employers pay anyway for all or part of FMLA leave, while others permit (or force) employees to use accrued paid time off (PTO) or borrow from future PTO.

There is no Federal law that requires employers to pay employees for any type of sick leave; however, some states and municipalities have passed or are considering paid sick leave laws.

Your employer may not retaliate against you for legitimately taking family or medical leave under the FMLA, such as by discharging you.

However, your employer is likely entitled to discharge you while you're on FMLA leave or shortly after you return to work, if the reason is not retaliatory under the FMLA (and not wrongful termination in any other way). That's based on court precedents, which effectively determined that employees on FMLA leave are not entitled to any greater rights, benefits or protections than other employees.

When you return to work from family or medical leave, your employer is required to re-employ you in your original job or at least an equivalent. Your employer must ensure that your equivalent job has certain characteristics that are virtually identical to those of your original job, such as wages, work hours and benefits.

Benefit reinstatement for either your original job or an equivalent must include those that accrued before you took family or medical leave, such as vacation, unless you exhausted such as part of your leave.

If your state has a law with work-leave protections, then you're protected by whichever is more generous between the state law and Federal FMLA; for example, some states have laws that grant work-leave rights to victims of crimes or domestic violence, so the victims may attend to related matters such as legal proceedings. The FMLA grants work-leave rights only for serious medical conditions resulting from same.

If you reasonably believe that your employer has violated your employee rights under the FMLA, then you may file a complaint by contacting the nearest Wage and Hour Office of the U.S. Department of Labor. Alternately, you may file an FMLA lawsuit without first filing a complaint. An FMLA lawsuit might provide more generous relief. An FLMA attorney will advise you in your course of action and might take your case on contingency.

To determine if your employer has violated your employee rights under a state version of the FMLA or any other state law that grants work-leave rights to eligible employees, start by contacting the relevant state department of labor. Alternately or additionally, consult an attorney.

See the Family and Medical Leave Act Advisor by the U.S. Department of Labor to determine whether or not you're eligible for FMLA leave or to generally learn more about your employee rights under the FMLA. You might also be interested in downloading The Employee's Guide.