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FMLA Leave (Family and Medical Leave Act)

A federal right to unpaid, job-protected leave for a serious health condition, a new child, or a family member's serious illness, with health coverage kept in place.

Informational only - this is not legal advice. These definitions explain general legal vocabulary in plain English. They are not advice about your situation, reading them creates no attorney-client relationship, and the law differs from state to state and changes over time. For advice you can rely on, speak to a lawyer licensed in your state.

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What it means

The Family and Medical Leave Act gives an eligible employee a right to unpaid leave from work, a right to keep group health coverage on the same terms during the leave, and a right to return to the same job or an equivalent one afterwards. The qualifying reasons are the birth of a child and care for the newborn, the placement of a child for adoption or foster care, caring for a spouse, child or parent with a serious health condition, the employee's own serious health condition that makes them unable to do the job, and certain needs arising from a family member's military deployment. A separate, longer entitlement covers caring for a servicemember with a serious injury or illness.

Not every worker is covered. The employer must be covered, which for a private business means 50 or more employees, and the employee must have worked for that employer long enough and for at least 1,250 hours in the preceding year, at a site where the employer has 50 employees within 75 miles. Leave for a serious health condition can be taken intermittently, or as a reduced schedule, when medically necessary. An employer may require, or an employee may choose, to use accrued paid leave at the same time, so the FMLA period and the paid period run together.

Most disputes take one of two forms. Interference means the employer denied, discouraged or miscounted leave the employee was entitled to, for example by treating a qualifying absence as an unexcused one. Retaliation means the employer punished the employee for taking or asking for leave, most often by firing them on return. A narrow exception lets an employer refuse to reinstate a salaried "key employee" among its most highly paid when restoration would cause substantial and grievous economic injury, but only after notice. Many states have their own family leave and paid leave laws that cover more employers or more reasons, and an employee may use whichever is more protective.

Where this comes from

The Family and Medical Leave Act, 29 U.S.C. §§ 2601-2654. Covered employers and eligible employees are defined in 29 U.S.C. § 2611(2) and (4); the leave entitlement and its qualifying reasons are in § 2612(a)(1), military caregiver leave in § 2612(a)(3), intermittent leave in § 2612(b), and substitution of paid leave in § 2612(d)(2). Job restoration and maintenance of health benefits are in § 2614(a)(1) and (c)(1), the key-employee exception in § 2614(b), the prohibited acts (interference and retaliation) in § 2615(a), and enforcement, including liquidated damages and attorney's fees, in § 2617. The Department of Labor's regulations are 29 C.F.R. Part 825.

When people hire a lawyer for this

Give your employer notice of the reason for leave as early as you can and keep copies of what you sent and any medical certification. Talk to an employment lawyer if leave is denied, if you are disciplined for an absence that should have been protected, or if you are fired or demoted on your return. The statute lets a successful employee recover lost pay, an equal amount as liquidated damages and attorney's fees, so many lawyers will review these claims without an up-front fee.

Worried about the cost? A lawyer can be hired for one part of a case only (limited-scope representation), may be paid from what a claim recovers (contingency fee), or may be free through a pro bono program or legal aid; a court can also waive its own filing fees.

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Related terms

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Part of the LawyerLand plain-English legal glossary. Definitions are written from primary sources - statutes and court rules - and each entry states the authority it rests on, or says plainly when the doctrine is state law with no national rule.

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