Family and Medical Leave
Since 1993, the Family and Medical Leave Act (FMLA) has allowed eligible employees to take reasonable leave for medical reasons or to care for certain family members. Employees are eligible to use family and medical leave if they have worked for the employer for a total of 12 months, have worked at least 1,250 hours over the previous 12 months, and work at a U.S. location where at least 50 employees are employed by the employer within 75 miles.
Most eligible employees may take up to twelve weeks of leave for their own serious health condition, the health condition of a spouse, child or parent, or to attend to the birth or care of the employee’s newborn child or the placement with the employee of a foster or adopted child. The twelve weeks may also be taken intermittently or under a reduced leave schedule. Family members may take up to 26 workweeks of leave in a 12-month period to care for a service member. But “key” employees – those among the top 10% of wage earners within 75 miles of the employee’s workplace – may be required to return in less than 12 weeks under certain circumstances.
Where an employee has a right to leave, the employer generally may not interfere with or deny leave. Even where leave is granted, the employer may also not retaliate against the employee for taking FMLA leave.
Employees who need FMLA leave are required to notify the employer 30 days in advance if possible. If it’s not possible, the employee should generally give notice as soon as the need becomes foreseeable, or by the next business day. The FMLA also requires the employer to notify the employee of his or her eligibility and qualification for the requested leave.
If the employer violates the FMLA, the employee can recover his or her actual damages, which usually consist of wages, salary, benefits, or other compensation lost to the employee. If, for example, the employee lost his or her job because of a violation, the employee may be able to recover ongoing lost wages, unless she or he is reasonably able to mitigate damages (see our page on damages). Actual damages are then doubled unless the employer proves that its violation was in good faith and that the employer had reasonable grounds for believing it complied with the FMLA. An employee who succeeds on an FMLA is also entitled to recover attorney fees.