Family Leave and Medical Act (“FMLA”) Provisions

The Family Leave and Medical Act (“FLMA”), 29 CFR Part 825, was adopted in 1993 for most employers and is regulated by the U.S. Department of Labor’s Employment Standards Administration. Its purpose is to allow employees to balance their work and family life by taking reasonable unpaid leave for certain family and medical reasons.

I. EMPLOYER QUALIFICATIONS: (29 CFR 825.104) Enforcement of this act applies to employers who are:

a) Public agencies, or

b) Private-sector employers who:

1) Employ 50 or more employees in 20 or more workweeks in the current or preceding calendar year, and

2) Who are engaged in commerce or in any industry or activity affecting commerce[1].

II. EMPLOYEE ELIGIBILITY: (29 CFR 825.110) Employees who qualify to receive FMLA benefits must have:

a) Worked for a covered employer for 12 months

b) Have worked at least 1,250 hours over those 12 months

c) Work at a location in the U.S. or territory of possession of the U.S. where at least 50 employees are employed by the employer within 75 miles.

III. ALLOWED BENEFITS: (219 CFR 825.200) If an employer is mandated to provide FMLA benefits, an employee is allowed:

1) Up to 12 workweeks of unpaid leave during a 12-month period for one or more of the following reasons:

a) Birth or son of daughter, and to care for newborn child;

b) Adoption of son or daughter, and to care for the newly adopted child;

c) Care for immediate family member (spouse, child or parent, but not parent “in-law”) with a “serious health condition,” defined as: (29 CFR 825.114)

i) Any period of incapacity or treatment connected with inpatient care in a hospital, hospice, or residential medical care facility;

ii) A period of incapacity requiring absence of more than three calendar days from work, school, or other regular daily activities that also involves continuing treatment by, or under the supervision of a health care provider;

iii) Any period of incapacity due to pregnancy, or for prenatal care;

iv) Any period of incapacity (or treatment therefore) due to a chronic serious health condition (e.g. asthma, diabetes, epilepsy, etc.);

v) A period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective (e.g. Alzheimer’s, stroke, terminal diseases, etc.);

vi) Any absences to receive multiple treatment (including any period of recovery therefrom), or on referral by, a health care provider for a condition that likely would result in incapacity of more than three consecutive days if left untreated (e.g. chemotherapy, physical therapy, dialysis, etc.)

d) When unable to work because of a serious health condition

2) Maintenance of health insurance coverage, including family coverage, during the entire portion of the leave. (29 CFR 825.209) However, an employer may require that the employee pay a portion of the insurance premium. An employee’s entitlement to continuing insurance coverage ends when:

a) The employee informs the employer of an intent not to return to work at the end of the leave period;

b) The employee fails to return to work at the end of the leave period;

c) The employee’s premium payment is more than 30 days late and the employer has given the employee written notice at least 15 days in advance, advising that coverage will cease if payment is not received.

3) Restoration of original job, or an “equivalent” job, which means virtually identical to the original job in terms of pay, benefits, and other employment terms and conditions. (29 CFR 825.214) However, there is a “Key Employee Exception” this provision, which states that if the employee taking FMLA leave is a “key” employee (described as a “highly paid,” salaried employee) and if restoration of that person’s original job would cause “substantial and grievous economic injury,” the employer can refuse to reinstate that employee. If a company refuses reinstatement, they must notify the employee in writing of his/her status as a “key” employee, the reasons for denying the job restoration, and provide the employee a reasonable opportunity to return to work in a different capacity or job after so notifying the employee.

FMLA leave may be taken intermittently, taken in separate blocks of time due to a single qualifying reason. This “reduced leave” schedule is defined as a reducing the employee’s usual number of working hours per week or per day (changing from full time status to part time status).

If a holiday occurs within a block of time that is being counted as FMLA leave for an employee, then it does not affect the amount of time being taken – it will still be counted as an entire week that the person is taking off. However, if a company completely ceases work during that holiday period of time (i.e. school letting out for Christmas break, plant shutting down for summer break, etc.) then the days on which the employer’s activities have ceased do not count against an employee’s FMLA leave entitlement.

IV. EMPLOYEE REQUIREMENTS TO RECEIVE BENEFITS: In order to receive FMLA benefits, an employee may be required to: (29 CFR 825.302)

1) Give 30-day advance notice of the need to take leave when foreseeable (pre-scheduled adoption, surgery, etc.);

2) If the leave is not foreseeable, the employee must give employer notice “as soon as practicable,” generally meaning at least verbal notice within one or two business days of learning of the need to take leave;

3) Sufficient information for the employer to understand that the employee needs leave for FMLA-qualifying reasons, including medical certification from a health care provider

4) Timely notice (generally two business days) that employee was planning to use absence as FMLA benefit days.

If an employee is given notice by its employer about the FMLA regulations and fails to give sufficient notice to invoke FMLA benefits, then an employer may withhold these benefits for up to 30 days after the date on which the employee gave notice.

In addition, an employer may require that an employee use all of their already accrued paid vacation and sick leave in lieu of taking unpaid days (29 CFR 825.208). The employer can count these paid vacation days against an employees FMLA benefits for the year as well, but must give employees written notice that they are doing so. If an employee disputes this decision, the U.S. Department of Labor suggests that “it should be resolved through discussions between the employee and the employer,” and “such discussions and the decision must be documented.”

V. EMPLOYER NOTICE REQUIREMENTS: Mandated employers are required to take appropriate steps to insure that their employees are aware of the FMLA and its benefits. The following steps must be taken: (29 CFR 825.300)

1) Post a notice approved by the Secretary of Labor explaining rights and responsibilities under FMLA;

2) Include FMLA information in employee handbooks and other written materials;

3) If these handbooks or written materials do not exist, employers are required to provide “general written guidance about employee rights and obligations” when that employee requests leave;

4) Provide written notice designating the leave as FMLA leave one to two business days after employee requests leave and detailed specific expectations and guidance about employee rights and obligations under FMLA;

5) Provide notice that the time will be counted against the employee’s annual FMLA leave entitlement;

6) Provide notice of requirements of:

a) Employee to furnish medical certification and the consequences of failing to do so;

b) Employee to make co-premium payments for maintaining group health insurance and arrangements for making payments;

c) Employee to present fitness-for-duty certification before being restored to his/her old job;

d) Employee’s potential liability for reimbursement of health insurance premiums paid by the employer during the leave if the employee fails to return to work after taking FMLA leave; and

e) Whether the employee qualifies as a “key” employee and the circumstances under which the employee may not be restored to his or her job following leave.

If an employer fails to give proper notice of FMLA benefits to its employees, and an employee then uses accrued vacation and sick days for a reason covered by the FMLA, then an employee can request those days be retroactively counted as unpaid FMLA days and recoup the lost paid days. Any complaints or reports of non-compliance by employers should be directed to your local U.S. Department of Labor Employment Standards Administration office.

A complete summary of the FMLA in addition to the full text of the code of federal regulations that governs this provision is available on the U.S. Department of Labor’s website at To contact the Chicago office of the U.S. Department of Labor for FMLA questions or complaints, please call (312) 596-7160. The Chicago office is located at: 230 S. Dearborn Street, Room 774, Chicago, Illinois 60604.

[1] Other U.S. Department of Labor regulations suggest that if at least 50 employees do not live within 75 miles of the employer, then the employer may be exempt