Have you ever wondered what FMLA really is and whether it applies to you? While most people understand that FMLA deals with taking off of work for a medical reason, there is great confusion as to the who, when, and how.

The Family and Medical Leave Act (FMLA) is a Federal law that provides eligible employees up to 12 workweeks of unpaid leave within a 12 month period. In certain military family situations, an eligible employee may take up to 26 workweeks of unpaid leave within a 12 month period.

FMLA also requires group health benefits to be maintained during the leave as if employees continued to work instead of taking leave. In most circumstances, employees are entitled to return to their same, or an equivalent, job at the end of their FMLA leave.


Who can take FMLA? In order to be eligible to take leave under the FMLA, an employee must:

  • work for a covered employer (covered employers are public agencies, including local, State, and Federal employers, and local education agencies (schools); and private sector employers who employ 50 or more employees for at least 20 workweeks in the current or preceding calendar year – including joint employers and successors of covered employers);
  • have worked 1,250 hours during the 12 months prior to the start of leave;
  • work at a location where the employer has 50 or more employees within 75 miles; and
  • have worked for the employer for 12 months. The 12 months of employment are not required to be consecutive in order for the employee to qualify for FMLA leave.


When can a person take FMLA?

  • for the birth of a son or daughter, and to bond with the newborn child;
  • for the placement with the employee of a child for adoption or foster care, and to bond with that child;
  • to care for an immediate family member (spouse, child, or parent – but not a parent “in-law”) with a serious health condition;
  • to take medical leave when the employee is unable to work because of a serious health condition; or
  • for qualifying exigencies arising out of the fact that the employee’s spouse, son, daughter, or parent is on covered active duty or called to covered active duty status as a member of the National Guard, Reserves, or Regular Armed Forces.
  • The FMLA also allows eligible employees to take up to 26 workweeks of unpaid, job-protected leave in a “single 12-month period” to care for a covered service member with a serious injury or illness.


  • FMLA provides 12 workweeks throughout a 12 month period to eligible employees. In certain circumstances, the 12 workweeks worth of time do not have to be taken consecutively.
  • In determining whether an employee has 12 workweeks of FMLA remaining, an employer may be using any one of the following methods to establish the 12-month period:
    • The Calendar Year
    • Any Fixed 12-Months
    • The 12-Month Period Measured Forward; or
    • A “Rolling” 12-Month Period Measured Backward
  • FMLA is unpaid. However, the law permits an employee to elect, or the employer to require the employee, to use accrued paid vacation leave, paid sick, or family leave for some or all of the FMLA leave period. An employee must follow the employer’s normal leave rules in order to substitute paid leave. When paid leave is used for an FMLA-covered reason, the leave is FMLA-protected.
  • Employees seeking to use FMLA leave are required to provide 30-days advance notice of the need to take FMLA leave when the need is foreseeable and such notice is practicable. If leave is foreseeable less than 30 days in advance, the employee must provide notice as soon as practicable – generally, either the same or next business day. When the need for leave is not foreseeable, the employee must provide notice to the employer as soon as practicable under the facts and circumstances of the particular case. Absent unusual circumstances, employees must comply with the employer’s usual and customary notice and procedural requirements for requesting leave.

While this is a basic overview of the who, when, and how of the FMLA, the details can get tricky. If you believe the Family Medical Leave Act may apply to you as an employee or employer, it is important to reach out to an attorney to protect your rights as an employee or prevent expensive mistakes as an employer.

Contact Buzgon Davis Law Offices to speak with an experienced Labor and Employment Attorney.

This article was written by Associate Attorney Kelli Metzger Knerr.

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