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Family Medical Leave Act (FMLA)

Let's face it, lymphedema isn't simply a medical condition that one has with no complications, associated conditions or problems. Out of the blue, we can get hit with that massive infection.

For those of us with cancer we made need additional biopsies, chemotherapy or additional radiation. There may be times of medical emergencies and situations when we absolutely need to take time off from work or are simply unable to work.

A proper understanding of the Family Medical Leave Act and your employers requirements for requesting it is essential. I hope this page can help in that process.

What is the Famliy Medical Leave Act?

Enacted originally on February 5, 1993, The Family and Medical leave Act allows an employee to take unpaid leave due to a serious condition that makes the employee unable to perform his/her job or to care for a sick family member or to care for a new son or daughter (including by birth, adoption or foster care). Also includes a serious health condition makes the employee unable to perform one or more of the essential functions of his or her job.

How do I apply?

First and foremost, remember, work within the guidelines of your employer. They have set up a process and it is important to follow that specific process. Also, be thoughtful, not only of your employer, but your fellow employees as well. They are the ones that will have to step up and fill in the gap for your abscence. There is a lot more invovled then simply taking some time off.

When a member of one of my teams has requested FMLA, I basically had to reassign worklists, job responsibilities and organization.

Before you apply, see if your company can offer you any type of work at home that will enable you to maintain some/part or all of your job responsibilities or if there is any special jobs you could perform while at home. I was able to work from home once several months before I actually had to use FMLA and short term disability.

Pat O'Connor

June 20, 2008

Family Medical Leave Act

Most of us think of the Family Medical Leave Act as something you go out on when you have a baby. But it is much more than that. Last year after three hospitalizations for cellulitis, I had used up every bit of sick time and vacation time on my job. By applying for FMLA and being under it, my job was protected during the extended time I was off.

FMLA entitles eligible employees to take up to 12 weeks of unpaid, job- protected leave each year for specified family and medical reasons. An eligible employee's right to FMLA leave begins on August 5, 1993. Any leave taken before that date does not count as FMLA leave. However, events qualifying under the Act for FMLA leave purposes (e.g., the birth of a child) occurring before August 5, 1993, still entitle eligible employees to the benefits of FMLA on and after August 5, 1993.

Family Medical Leave Act Brief Overview


The Family and Medical Leave Act of 1993 (FMLA) was enacted on February 5, 1993. The new law is effective on August 5, 1993, for most employers. If a collective bargaining agreement (CBA) is in effect on that date, the Act becomes effective on the expiration date of the CBA or February 5, 1994, whichever is earlier.

The U.S. Department of Labor's Employ-ment Standards Administration, Wage and Hour Division, administers and enforces FMLA for all private, state and local government employees, and some federal employees.

FMLA entitles eligible employees to take up to 12 weeks of unpaid, job- protected leave each year for specified family and medical reasons. An eligible employee's right to FMLA leave begins on August 5, 1993; any leave taken before that date does not count as FMLA leave.

The law contains provisions on employer coverage; employee eligibility for the law's benefits; entitlement to leave, maintenance of health benefits during leave, and job restoration after leave; notice and certification of the need for FMLA leave; and, protections for employees who request or take FMLA leave. The law also requires employers to keep certain records.

Employer Coverage

FMLA applies to all:

  • public agencies, including state, local and federal employers, local education agencies (schools) and
  • private-sector employers who employed 50 or more employees in 20 or more workweeks in the current or preceding calendar year and who are engaged in commerce or in any industry or activity affecting commerce þ including joint employers and successors of covered employers.

Employee Eligibility

To be eligible for FMLA benefits, an employee must:

  • work for a covered employer;
  • have worked for the employer for a total of at least 12 months;
  • have worked at least 1,250 hours over the previous 12 months; and
  • work at a location where at least 50 employees are employed by the employer within 75 miles.

Most federal and certain congressional employees are also covered by the law and are subject to the jurisdiction of the U.S. Office of Personnel Management and the Congress.

Leave Entitlement

A covered employer must grant an eligible employee up to a total of 12 workweeks of unpaid leave during any 12-month period for one or more of the following reasons:

  • for the birth or placement of a child for adoption or foster care;
  • to care for an immediate family member (spouse, child, or parent) with a serious health condition; or
  • to take medical leave when the employee is unable to work because of a serious health condition.

Spouses employed by the same employer are jointly entitled to a combined total of 12 workweeks of family leave for the birth or placement of a child for adoption or foster care, and to care for a parent (but not a parent-in-law) who has a serious health condition.

Leave for birth or placement for adoption or foster care must conclude within 12 months of the birth or placement.

Under some circumstances, employees may take FMLA leave intermittently which means taking leave in blocks of time, or by reducing their normal weekly or daily work schedule.

  • If FMLA leave is for birth or placement for adoption or foster care, use of intermittent leave is subject to the employer's approval.
  • FMLA leave may be taken intermittently whenever medically necessary to care for a seriously ill family member, or because the employee is seriously ill and unable to work.

Also, subject to certain conditions, employees or employers may choose to use accrued paid leave (such as sick or vacation leave) to cover some or all of the FMLA leave. The employer is responsible for designating if an employee's use of paid leave counts as FMLA leave, based on information from the employee. In no case can use of paid leave be credited as FMLA leave after the leave has ended.

Serious health condition means an illness, injury, impairment, or physical or mental condition that involves:

  • any period of incapacity or treatment connected with inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical-care facility;
  • any 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; or
  • continuing treatment by (or under the supervision of) a health care provider for a chronic or long-term health condition that is incurable or so serious that, if not treated, would likely result in a period of incapacity of more than three calendar days, and for prenatal care.

Health care provider means:

  • doctors of medicine or osteopathy authorized to practice medicine or surgery by the state in which the doctor practices; or
  • podiatrists, dentists, clinical psychologists, optometrists and chiropractors (limited to manual manipulation of the spine to correct a subluxation as demonstrated by X-ray to exist) authorized to practice, and performing within the scope of their practice, under state law; or,
  • nurse practitioners and nurse-midwives authorized to practice, and performing within the scope of their practice, as defined under state law; or
  • Christian Science practitioners listed with the First Church of Christ, Scientist in Boston, Massachusetts.

Maintenance of Health Benefits

A covered employer is required to maintain group health insurance coverage for an employee on FMLA leave whenever such insurance was provided before the leave was taken and on the same terms as if the employee had continued to work. If applicable, arrangements will need to be made for employees to pay their share of health insurance premiums while on leave.

In some instances, the employer may re-cover premiums it paid to maintain health coverage for an employee who fails to return to work from FMLA leave.

Job Restoration

Upon return from FMLA leave, an em-ployee must be restored to his or her original job, or to an equivalent job with equivalent pay, benefits, and other employment terms and conditions. In addition, an employee's use of FMLA leave cannot result in the loss of any employment benefit that the employee earned or was entitled to before using FMLA leave.

Under specified and limited circumstances where restoration to employment will cause substantial and grievous economic injury to its operations, an employer may refuse to reinstate certain highly-paid “key” employees after using FMLA leave during which health coverage was maintained. In order to do so, the employer must:

  • notify the employee of his/her status as a “key” employee in response to the employee's notice of intent to take FMLA leave;
  • notify the employee as soon as the employer decides it will deny job restoration and explain the reasons for this decision;
  • offer the employee a reasonable opportunity to return to work from FMLA leave after giving this notice; and
  • make a final determination as to whether reinstatement will be denied at the end of the leave period if the employee then requests restoration.

A “key” employee is a salaried “eligible” employee who is among the highest paid ten percent of employees within 75 miles of the work site.

Notice and Certification

Employees seeking to use FMLA leave may be required to provide:

  • 30-day advance notice of the need to take FMLA leave when the need is foreseeable;
  • medical certifications supporting the need for leave due to a serious health condition affecting the employee or an immediate family member;
  • second or third medical opinions and periodic recertifications (at the employer's expense); and
  • periodic reports during FMLA leave regarding the employee's status and intent to return to work.

When leave is needed to care for an immediate family member or the employee's own illness, and is for planned medical treatment, the employee must try to schedule treatment so as not to unduly disrupt the employer's operation.

Covered employers must post a notice ap-proved by the Secretary of Labor explaining rights and responsibilities under FMLA. An employer that willfully violates this posting requirement may be subject to a fine of up to $100 for each separate offense.

Also, covered employers must inform employees of their rights and responsibilities under FMLA, including giving specific information when an employee gives notice of FMLA leave on what is required of the employee and what might happen in certain circumstances, such as if the employee fails to return to work after FMLA leave.

Unlawful Acts

It is unlawful for any employer to interfere with, restrain, or deny the exercise of any right provided by FMLA. It is also unlawful for an employer to discharge or discriminate against any individual for opposing any practice, or because of involvement in any proceeding, related to FMLA.


FMLA is enforced, including investigation of complaints, by the U.S. Labor Department's Employment Standards Administration, Wage and Hour Division. If violations cannot be satisfactorily resolved, the Department may bring action in court to compel compliance. An eligible employee may also bring a private civil action against an employer for violations.

Other Provisions

Special rules apply to employees of local education agencies. Generally, these rules provide for FMLA leave to be taken in blocks of time when intermittent leave is needed or the leave is required near the end of a school term. Salaried executive, administrative, and professional employees of covered employers who meet the Fair Labor Standards Act (FLSA) criteria for exemption from minimum wage and overtime under Regulations, 29 CFR Part 541, do not lose their FLSA-exempt status by using any unpaid FMLA leave. This special exception to the “salary basis” requirements for FLSA's exemption extends only to “eligible” employees' use of leave required by FMLA.

The FMLA does not affect any other federal or state law which prohibits discrimination, nor supersede any state or local law which provides greater family or medical leave protection. Nor does it affect an employer's obligation to provide greater leave rights under a collective bargaining agreement or employment benefit plan. The FMLA also encourages employers to provide more generous leave rights.

Further Information

For more information, please contact the nearest office of the Wage and Hour Division, listed in most telephone directories under U.S. Government, Department of Labor, Employment Standards Administration.

There are extensive links below for further information and assistance.

Family Medical Leave Act Information

Synopsis of Law Covered employers must grant an eligible employee up to a total of 12 workweeks of unpaid leave during any 12-month period for one or more of the following reasons:

for the birth and care of the newborn child of the employee; for placement with the employee of a son or daughter for adoption or foster care; to care for an immediate family member (spouse, child, or parent) with a serious health condition; or to take medical leave when the employee is unable to work because of a serious health condition.

Department of Labor

External Links

Family and Medical Leave Act Advisor

The Family and Medical Leave Act (FMLA) Advisor provides information about employee eligibility under FMLA; including valid reasons for leave; employee/employer notification responsibilities; and employee rights and benefits. This Advisor was developed by the Wage and Hour Division of the Employment Standards Administration.

The Department of Labor (DOL) developed the elaws Advisors to help employees and employers understand their rights and responsibilities under numerous Federal employment laws. Each Advisor includes links to more detailed information that may be useful to the user, such as links to regulatory text, publications and organizations.

Chapter 28 - Family and Medical Leave Act

Family and Medical Leave Act - FMLA - 29 U.S. Code Chapter 28

Final Regulations on Family and Medical Leave

Guide to the Family Medical Leave Act

The Family & Medical Leave Act - “Balancing Work and Family” by: Gary Vikesland, MA LP CEAP

Family Medical Leave Act - Comments from People

Family Medical Leave Act: Here's a collection of what people have been saying recently in public newsgroups about “Family Medical Leave Act”, one of the many topics related to health and medicine. We offer you these pages as a convenient way of researching discussions about “Family Medical Leave Act”. (To post responses or participate in the discussion about “Family Medical Leave Act”, you would need to use newsgroup reading software or a web-based newsgroup service).

What You Need to Know About Your Rights and Responsibilities Under the Family and Medical Act (FMLA) - Center for Disability and Law - Family Medical Leave Act

By: Stephen S. Pennington, Esquire, and Jamie C. Ray, Esquire

Compliance Guide to the Family and Medical Leave Act

Family Medical & Leave Act FAQS

Compliance Assistance — Family and Medical Leave Act (FMLA)

Family and Medical Leave Act of 1993

Employee Rights and Respnsibilities under the Family and Medical Leave Act

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Updated Jan. 13, 2012

family_medical_leave_act.txt · Last modified: 2012/10/16 14:40 (external edit)