The Family Medical Leave Act (FMLA) is an important law that allows employees across the United States to take leave from work when they face specific family or medical issues.
As with all labor laws, the FMLA can be complex. On this page, we break down all aspects of the law to ensure that workers know their rights and can take leave without retaliation from their employers.
Learn everything you need to know with our comprehensive guide to the Family Medical Leave Act. If you believe your employer is violating your rights by refusing to grant legally-guaranteed time off, contact our outstanding team of employment attorneys at Bisnar Chase for a free consultation.
Family Medical Leave Act Resources
What is the Family Medical Leave Act?
The Family Medical Leave Act of 1993 is a law that grants employees the right to an unpaid leave of absence from work under certain conditions.
What Conditions Qualify for FMLA Leave?
The most common scenarios making workers eligible for FMLA leave include the following:
- Caring for a new child. The FMLA provides maternity and paternity leave for new parents, as well as leave for workers adopting or fostering a child.
- Looking after someone with a serious illness. Leave must be granted to allow an employee to care for a family member, such as a spouse, child, or parent.
- Dealing with significant illness. When an employee is dealing with a serious health condition themselves, they will become eligible for FMLA leave.
- Qualifying conditions relating to a direct family member’s active military status.
Under the Family Medical Leave Act, you are entitled to 12 weeks off within a one-year period.
Once your leave is up, the law guarantees that you can return to the same position and with the same benefits you previously enjoyed without fearing retaliation from your employer. You can also continue your health benefits while on leave.
As a federal law, the Family Medical Leave Act covers employees across the United States in public and private sector positions. However, some states supplement the FMLA with state laws to improve employee rights. For example, California provides Paid Family Leave (PFL) and the California Family Rights Act (CFRA).
Origins of the FMLA
Earlier versions of the Family Medical Leave Act were in the works for several years before it was finally signed into law. The Women’s Legal Defense Fund created the first draft in the mid-1980s to make America more family-friendly.
In 1990, President George Bush vetoed the bill. He acknowledged the need to balance work and family responsibilities but feared the legislation would hurt the U.S. economy.
Once Bill Clinton was elected president in 1992, he prioritized a bill supporting working-class families, and the FMLA was signed into law in 1993. It was designed to offer leave protection in a way that accommodates the best interest of employers.
It also boosts the early development of children by providing more parental support while ensuring that working parents no longer have to choose between parenting and job security.
Who is Eligible for FMLA Leave?
The Family Medical Leave Act covers most public and private sector employees. But some conditions need to be fulfilled for a worker to be eligible.
To start with, your employer must be big enough to qualify. The company you work for must have at least 50 employees based within a 75-mile radius of its primary worksite. This number includes anyone on the payroll over the last calendar year, including temporary or seasonal workers.
At a time of economic uncertainty, when many companies have had to make layoffs, it is important to note that your company does not have to have 50 employees on its books right now. Employees could still be eligible for FMLA leave if the company recently had that number of workers.
To be eligible, someone must have worked for their employer for at least 12 months. They must also have worked at least 1,250 hours over the past 12 months. This is the equivalent of about eight months of full-time work or 25 hours per week for a year.
If you do not meet these criteria, you may still be able to secure a protected leave of absence from work. But it must be done according to additional state laws rather than the federal Family Medical Leave Act.
Some professions have special rules due to their nature. For example, airline employees have different eligibility guidelines because they have non-traditional schedules.
Certain categories of employees are also not eligible for leave under the FMLA. These include elected officials, while high-level or highly-compensated employees might face restrictions.
FMLA Maternity Leave
It can be difficult to know how much time off you are entitled to due to the number of overlapping laws that might come into play regarding maternity leave in California.
- When you are pregnant or give birth, you can take 12 weeks off work under the FMLA. This time is unpaid, but your position and benefits are protected during this period.
- You may be entitled to up to 16 weeks off through a California law called Pregnancy Disability Leave (PDL), depending on the conditions of your pregnancy.
- Your FMLA leave would run at the same time as your PDL leave, giving you a maximum of 16 weeks off.
- However, the California state version of the FMLA – the California Family Rights Act (CFRA) – gives many of the same advantages as its federal partner. But PDL leave and CFRA leave would run consecutively, potentially giving you seven months of time off.
- You can take FMLA leave before a child’s birth, such as when a doctor orders pre-birth bed rest. But your limit is still 12 weeks in total, so this would reduce the time off you get after the birth.
- Some areas, such as the city of San Francisco, have additional laws in place to guarantee extra compensation to employees on maternity leave.
These different laws can be confusing, and they do overlap in some areas. Some laws protect your position during your absence, while others relate to pay.
To decide the best course of action in your case, you should contact an HR professional or an employment attorney to establish your rights.
Paternity leave is an absence from work, allowing the father of a newborn baby to stay at home to bond with their child. It is the father’s equivalent of maternity leave.
As with maternity leave, paternity time is covered by the Family Medical Leave Act. Anyone eligible can take up to 12 weeks unpaid under the FMLA.
Paternity leave in California can also be covered by the California Family Rights Act (CFRA).
Serious Illnesses Under the FMLA
You can take protected time off work when you are coping with a severe medical issue or caring for someone else with a serious illness.
But what sort of medical conditions qualify? Typically it can be an illness, an injury, a physical or mental condition, or another type of impairment that is severe in nature. The definition is a little loose, but it will usually involve the following:
- Continuing care or treatment by a healthcare provider.
- An overnight stay at a hospital or care facility.
For example, if someone is dealing with a form of cancer or has surgery requiring recovery time, these would qualify the patient or carer for FMLA leave.
Employees should provide advanced notice of their absence to their employer when possible. For example, this is possible when a surgical procedure is booked ahead of time. In other situations, such as when you sustain an injury or receive a sudden diagnosis, an advanced warning may not be possible.
Why is the Family Medical Leave Act So Important?
Everyone deserves the right to conduct important actions in their personal life without fearing for their job.
People often take leaves of absence from work at particularly tough and stressful times in their lives. The law allows them that freedom without fearing for their jobs or benefits.
Some employers are sensitive to the needs of their workers and try to do right by them at all times. But others are focused on their bottom line with no regard for their employees as people. Those companies need to be legally compelled to do the right thing.
The law is critical in allowing people to strike a work/life balance, manage unexpected crises and medical conditions, bond with newborn children, and much more. To be able to do these things – albeit without pay – while maintaining health benefits and being free from potential repercussions is hugely valuable.
It is also essential that the law provides a balance. Unlimited time off and freedom for employees would negatively impact businesses. In turn, it could affect the economy.
FMLA vs. CFRA: What is the Difference?
We know what the Family Medical Leave Act is and why it is important to employees across the U.S. But what is the California Family Rights Act (CFRA), and how does it differ from the FMLA?
While the FMLA is a federal law that applies to the entire country, the California Family Rights Act is a state law specific to California.
The California Family Rights Act (CFRA)
The California Family Rights Act was passed into law in 1993. It is modeled after the FMLA and is extremely similar in many ways. As with the FMLA, the CFRA allows workers to take unpaid but protected time off for:
- Your own health condition.
- Caring for a family member.
- Bonding with a newborn, fostered, or adopted child within the first 12 months of their life/placement.
But there are some fundamental differences. Many of those were introduced in a recent amendment to the law in 2021.
- Many more people are now eligible for CFRA leave. It applies to all employees at companies with five or more employees, opening it up to those working for small businesses.
- The definition of “family member” has been expanded. Previously, people were restricted to caring for a spouse, child, or parent with a medical condition. They can now use CFRA leave to care for domestic partners, adult children, grandchildren, grandparents, and siblings.
- Initially, the CFRA did not cover situations related to military service and active duty. It has now been extended in line with the FMLA.
- Previously, an employer was allowed to refuse CFRA leave for its top 10% of highest-earning employees. This clause has now been eliminated.
- In some situations, employees who are eligible for both CFRA and FMLA leave burn both at the same time. But a change to the CFRA law means that they may now be taken separately, as long as they are for different qualifying reasons.
These are some of the top updates and distinguishing features of the California Family Rights Act. For more information on your rights as an employee in California, contact a labor lawyer for guidance.
Other Important Laws
The FMLA and the CFRA are far from the only laws that you need to know about when it comes to taking time off work. We run through some of the other important laws below.
California Paid Family Leave (PFL)
California’s state Paid Family Leave benefit is a system through which people can fill some of their lost wages while off work on FMLA or CFRA leave. Since those laws only provide unpaid leave, they are not an option for most people. But California PFL offers a percentage of a worker’s usual wage while they are off work to bond with a new child or care for a family member. Under the California Paid Family Leave Act, you are entitled to up to six weeks of partial pay, and you do not have to take it all at once.
Click here to check the eligibility requirements for California Paid Family Leave or to file a claim.
Pregnancy Disability Leave (PDL)
This California state law provides job-protected unpaid leave to workers who have been disabled or impaired due to pregnancy, giving birth, or any related medical condition. Pregnancy Disability Leave is available to those working at companies with five or more employees. Healthcare providers usually approve 10-12 weeks of PDL for a normal pregnancy, but it can last for a maximum of four months. PDL allows workers to keep their health benefits while off work.
State Disability Insurance (SDI)
California’s State Disability Insurance is a partial wage replacement system available to workers in the state. Anyone who contributes a portion of their wages to the SDI program (which includes the majority of workers in California) is eligible. SDI does nothing to protect your job – it would be used in combination with other laws. For example, you can take unpaid time off through FMLA or CFRA, then recoup some of your lost wages through SDI. It provides 55% of your usual salary for a maximum of 52 weeks.
What Happens if an Employee is Not Eligible for FMLA Leave?
If you are not eligible for time off under the Family Medical Leave Act, extended absences from work will not be protected.
When you miss time without your employer’s consent or reach a breaking point by making too many requests for time off, an employer will be within their rights to fire you. If you miss a lot of work, there is no guarantee that your job or benefits will be waiting for you when you get back.
However, as we have explored, there are alternatives to the Family Medical Leave Act. You can explore other state and federal laws that might grant you protected time off, such as the California Family Rights Act.
In many cases, it is in an employer’s best interests to work with their workers to find the best solution. The best way for a company to inspire loyalty and hard work is to appreciate its employees and help them find the right work/life balance, especially when important or sudden circumstances arise.
How to Apply for FMLA Leave
To use FMLA leave, you need to submit a request for time off to your employer and provide enough information for it to qualify as meeting the Family Medical Leave Act requirements.
- Submit a leave request to your employer,
- When you can, give at least 30 days’ notice of leave starting.
- If it is an emergency and you cannot give advanced warning, tell your employer at the earliest opportunity; on the day you find out or the following working day.
- You do not have to specifically ask for FMLA leave in your initial request, but it can help with the process.
- There is no obligation to provide sensitive details or diagnosis specifics, but you must provide enough information for your employer to know that it falls under FMLA requirements.
- If you need to extend your leave of absence or take a second leave, you must indicate that it is due to an FMLA-protected condition.
- Your employer must let you know if you are eligible for FMLA leave within five days of your first request.
- If you are ineligible, your employer must give you a reason why.
- If you are eligible, your employer must provide you with a notice of eligibility. It will state your rights and responsibilities. These will include a definition of your 12-month window, whether you need to provide medical certification, and whether you will be required to use paid leave.
- You should communicate with your employer throughout your leave period. Be sure to notify them of any status changes. Some employers also require regular updates on your status and intention to return to work.
When applying for FMLA leave, be sure to provide timely notice and regular updates as required. Clear communication is the key.
Examples of FMLA Violations and Lawsuits
Millions of dollars are awarded to plaintiffs over FMLA leave violations every year. The following are just two examples of recent lawsuits.
DaPrato v. Massachusetts Water Resources Authority
Richard DaPrato worked for the Massachusetts Water Resources Authority when he was granted FMLA leave to have and recover from foot surgery. His doctor provided a note saying he would need up to six weeks off.
Before returning to work, Mr. DaPrato took a pre-scheduled annual trip to Mexico. While there, he wore a protective boot and followed his doctor’s instructions to let his foot heal. When the company learned of his trip, an investigation was launched, and DaPrato was fired.
He filed a lawsuit, alleging retaliatory termination violating the Family Medical Leave Act and state laws. The court found in favor of the plaintiff, stating that vacations are allowed as long as the subject is complying with the needs of the medical leave. Mr. DaPrato was awarded $1.3 million, including $300,000 in lost future pay and benefits and more than $700,000 in punitive damages.
Hernandez v. AT&T
Angela Hernandez worked as an AT&T call center rep in San Diego for more than 10 years before she was terminated. She suffered from frequent migraines and took a significant portion of her allowed FMLA leave on medical grounds each year.
She was moved between teams and given a poor performance review due to her absences. Hernandez was then placed on a non-protected company leave after exhausting her FMLA/CFRA hours and eventually terminated. She filed a lawsuit alleging that she was targeted for taking so much FMLA leave.
AT&T made a $400,000 settlement offer before the trial started, but it was rejected. After a three-week trial, the jury found in favor of the plaintiff on all counts. She was awarded more than $2 million.
Major Cases That Set FMLA Legal Precedents
The following are two cases that went to appeals courts and set precedents on legal decisions relating to the Family Medical Leave Act.
Ragsdale v. Wolverine World Wide, Inc. (2002)
Tracy Ragsdale filed a lawsuit against her former employer, Wolverine World Wide, Inc. While companies are only required to provide 12 weeks of FMLA leave, Worldwide had a more generous policy. In 1996, it granted Ragsdale a 30-week medical absence.
At the end of the leave period, Ragsdale asked for an extension or to work part-time. This request was refused, and she was terminated when she did not report to work. She filed a lawsuit against the company for reinstatement and another 12 weeks of leave on the grounds that she was never notified of the FMLA designation. But the district court and Eighth Circuit Appeals court both sided with the employer.
Nevada Department of Human Resources v. Hibbs (2003)
William Hibbs was an employee at the Nevada Department of Human Resources. When his wife was involved in a car accident and underwent neck surgery, he asked for FMLA leave to care for her. Hibbs used the leave intermittently, but when he failed to return to work, he was terminated.
Hibbs sued the department and his supervisors for FMLA violations. The court found in favor of the department based on the 11th Amendment. But the Court of Appeals reversed the decision, citing the 14th Amendment.
How Do You Explain the Rolling 12-Month Period for FMLA?
Under the Family Medical Leave Act, workers get 12 weeks of time off per 12-month period. But how is that 12-month period measured?
To make things as confusing as possible, there are four different methods that an employer can use, and it is totally up to the employer to decide which form of time measurement they go with. The different measurements are below.
- The calendar year: Perhaps the most straightforward method is to have the 12-month span run from January 1 to December 31 every year for every employee.
- Any fixed 12-month period: The 12 months can cover any specified period. This could be the fiscal year, a year from the employee’s start date at the company, or any other set time span.
- Per employee measured forward: This 12-month period is individual to the employee and starts as soon as that person takes their first day of FMLA leave.
- The rolling 12-month period: The rolling 12-month FMLA period is measured backward. When an employee requests a leave of absence, the employer will look back at the previous 12 months (counted from the requested start date). Whatever has been used in the previous 12-month period will be subtracted from the 12-week total to show how much time off an employee has left.
An employer can use whichever calculation method they like, as long as they are consistent and apply the same rule to everyone. They must provide at least 60 days’ notice to change the system, and it is illegal for an employer to change their calculation method specifically to stop a worker from taking FMLA leave.
FMLA Leave Extensions
When you take FMLA leave, you do so for an important reason. When it involves a medical condition – either your own or that of a family member – your initial period off work might not be enough.
So, what happens when you ask your employer for an extension? Do they have to grant it? The answer is…sometimes.
In most cases, it will depend on a few different factors, including the reason for your request. For example, if you want more paternity time off to bond with your child or to care for another person, that request is less likely to be successful. But if you have a serious medical condition that requires more time off for further treatment, a company is more likely to be accommodating.
Other factors include the time you need and the status of your employer. The law states that employers should allow their workers to take additional time unless doing so creates “undue hardship” for the business. According to guidance from the U.S. Equal Employment Opportunity Commission (EEOC), considerations in deciding whether a time off request causes undue hardship include:
- The size of the business and its employee numbers.
- The length of the requested extension.
- Whether the leave would be taken in a single block of time or intermittently.
- Impact on the employee’s coworkers.
- How a company is impacted in its ability to serve clients or complete its normal functions.
Family Medical Leave Act Statistics
What is the Family Medical Leave Act’s real-world impact on employees and businesses? Check out some of the top statistics below.
- 20 million people take unpaid leave through the FMLA every year. Most of those do so for their own medical conditions (55%), followed by maternity/paternity leave (21%), and caring for a loved one (18%).
- Across the U.S., about 56% of employees are eligible for FMLA leave.
- Due to the extensions of the CFRA law that grants rights to those at micro-businesses with 5+ employees, about 94% of California workers are now eligible for unpaid work leave.
- Only 13% of private sector workers have paid family leave, while 41% have medical or disability leave.
- A study by the Center for American Progress claims that families lose about $20.6 billion per year in wages because they do not have access to paid leave.
- According to the Employment Policy Foundation, compliance with FMLA leave laws costs employers more than $21 billion annually through lost productivity, labor replacement, and continued benefits.
Family Medical Leave Act FAQs
The employment laws relating to time off obligations for California businesses can be a minefield.
We answer some of the most frequently asked questions below. If you have further questions about the Family Medical Leave Act, contact our labor law team at Bisnar Chase.
What is the difference between FMLA and intermittent FMLA?
The Family Medical Leave Act provides 12 weeks of time off. Often, this is taken all at once. But some people might need to take it on and off over a longer period of time. This is called intermittent FMLA leave. For example, you could use intermittent FMLA if you need one day off per week for a certain type of medical treatment.
How many days can you call in sick without a doctor’s note in California?
Traditionally, many businesses will ask for a doctor’s note from employees who take more than three days off sick. However, the law is unclear over the issue of doctor’s notes. Many employment attorneys believe it is unlawful to withhold earned sick time without a note. When using FMLA leave, you will probably be required to present certification if your leave is related to a medical condition.
How long can an employee be out on medical leave in California?
If you use the Family Medical Leave Act to take medical leave from work, you are entitled to 12 weeks off over a 12-month period. Some employers might grant you more time off, but 12 weeks is the legally required span.
How do I get paid while on FMLA in California?
FMLA leave is unpaid, as is CFRA leave. But several systems in California can partially cover your wages when you take unpaid leave from work. These include Paid Family Leave and State Disability Insurance. You will have to apply to the state to secure payment help. This is separate from your request for leave to your employer.
Can you be fired after your FMLA leave runs out?
It depends on the situation. The Family Medical Leave Act protects you against retaliatory termination. That means that you cannot be fired in relation to your absence. However, your employment could be terminated for legitimate reasons, such as if the company was making mass layoffs due to financial issues. If your leave runs out and you are still unable to return to work, it depends on the circumstances as to whether action can be taken against you. If your employer is attempting to fire you after you have taken FMLA leave, you should consult a labor lawyer for guidance.
Can you get an extension on FMLA?
The Family Medical Leave Act sets a legal minimum of 12 weeks of time off that an employer must provide. The FMLA law does not protect anything above that. But you might be able to extend your leave. To do so, you could explore any other state laws that may apply to you. You could also talk to your employer; the law may require them to grant an extension if it does not cause undue hardship to the business.
What happens when FMLA is exhausted in California?
When your FMLA leave is exhausted, you will either return to work or ask your employer about the possibility of an extension, depending on your circumstances.
Can you put in two weeks’ notice while on FMLA?
Yes, you can give notice to your employer that you are leaving the company while you are off work on FMLA leave. There is no obligation to return to work in the meantime, and your benefits will continue to be protected until your employment officially ends.
What should I tell my coworkers about FMLA?
How much you disclose to your coworkers about your time off is up to you. As long as you have made the proper arrangements with the company and HR, you can tell your colleagues as much or as little as you want. You are not required to give out any personal information. Equally, the company cannot divulge your private medical information to any other employees.
What Do You Do If Your Employer Has Violated Your FMLA Rights?
The Family Medical Leave Act allows employees who have been wronged according to the FMLA law to sue their employer for monetary compensation and damages.
There are many examples of businesses acting unlawfully toward workers who take FMLA or CFRA leave. These include:
- Demoting a worker after they take time off.
- Terminating an employee with a severe medical condition who cannot return to work when requested.
- Firing an employee for taking legally permitted leave.
- Terminating someone who has made a complaint about an FMLA violation.
- Refusing a legitimate leave request.
When your rights have been violated, or you believe you might have a case, the first step that you should take is to contact a California employment lawyer at Bisnar Chase.
Employment laws are broad and complicated, and you need an expert working on your behalf to make a successful claim.
There is a process to follow when it comes to FMLA and CFRA violations. Our team will be able to guide you through the correct steps, from assembling evidence to preventing the company from covering its tracks. Contact us today for a free consultation with a skilled labor attorney based in California.
Contact the Best Employment Lawyer Near Me
Bisnar Chase has a track record of successful outcomes and significant recoveries in employment claims. We handle everything from wrongful termination to wage and hour disputes and can help you with any FMLA/CFRA violations.
- Bisnar Chase has a dedicated labor law department in addition to our personal injury lawyers.
- Our team has a 99% success rate.
- Longevity is important. Established in 1978, we have decades of experience.
- We have recovered more than $800 million for our clients.
- B|C offers a free initial consultation and a no win, no fee promise.
- Our employment law firm has offices in Orange County (Newport Beach), Los Angeles, Riverside, San Bernardino, and San Diego.
Our team is made up of talented and dedicated individuals who genuinely care about their clients and work together to achieve the best possible results. We have decades of experience with labor law violations and take great pride in securing the maximum compensation for our clients.
Contact our top-rated employment lawyers at Bisnar Chase today to discuss your FMLA/CFRA violation case. Call (800) 561-4887, send us an email, or use the live chat feature on our website. We look forward to hearing from you.