4 things to know about FMLA requirements

Can an employee use the Family and Medical Leave Act (FMLA) to take a leave of absence from work? Depending on the situation, that's not always an easy question to answer. The reality is that not everyone is eligible to use FMLA leave. In fact, the FMLA doesn't even apply to all employers — not to mention that employees must also meet very specific FMLA requirements in order to qualify for leave.

Sound confusing? It certainly can be. So, let's look at the basics of the FMLA eligibility requirements.

1. What is a “covered employer” and why does it matter?

To be eligible for FMLA leave, an employee needs to work for a covered employer. As a general rule, covered employers typically include:

  • Private and public elementary and secondary schools
  • Public agencies, including federal and state governments
  • Private-sector employers with at least 50 or more employees

If the employer doesn't fall into one of these categories, then the employee may not be able to take leave under the FMLA.

But if the employer is covered, it typically must post an FMLA notice where their staff will see it. This notice should include an explanation of the FMLA. It should also provide information regarding how the FMLA works. Covered employers are also usually required to post notices regarding procedures for filing complaints about FMLA violations to the Department of Labor's Wage and Hour Division.

2. What are the prerequisites for employees to meet FMLA requirements?

Determining whether an employee works for a covered employer is merely the first step. You also need to determine whether the employee is eligible — and not everyone is.

For example, an employee would typically need to meet the following FMLA requirements in order to be eligible for FMLA leave:

  • The employee must work for a covered employer
  • The employee must have worked for the same employer for at least 12 months, although the months don't necessarily need to be consecutive
  • The employee must have logged at least 1,250 hours of work for the employer during the 12 months prior to the leave
  • The employee must work at a location where the employer has at least 50 employees within 75 miles.

3. What are the specific situations that an eligible employee might be approved to use FMLA leave?

Assuming the employee meets the FMLA requirements mentioned earlier, the employee may be eligible for up to 12 weeks of unpaid, job-protected leave during a 12-month period for one or more of the following reasons:

  • The employee has a serious health condition.
  • The employee needs to care for a child, parent, or spouse with a serious medical condition.
  • The employee is experiencing pre-partum complications in preparation for the birth of a new child.
  • The employee needs leave for the birth of a new child or to bond with a new child, but the employee must take the leave within one year of the child's birth.
  • The employee needs leave due to the placement of a new child with the employee through adoption or foster care, but the employee must take the leave within one year of the placement.

In addition to the situations above, the FMLA may provide family leave for many other reasons, including situations associated to specific military deployments. Also, employees may be eligible for up to 26 weeks of FMLA leave to care for a service member with a serious medical condition.

4. If an employee doesn't meet the FMLA requirements, can they still be eligible for leave from work?

Even if an employee doesn't meet the FMLA requirements, they may still be eligible for leave in certain situations — but not under the FMLA.

For example, it's possible that individual state or local governments may have created their own laws and ordinances that cover family and medical leave. If this is the case, an employee may be able to take leave under these state or local options even if they are ineligible under the FMLA.

In addition, some employers — particularly larger employers — may have their own internal policies and rules regarding family and medical leave for employees. And in some instances, these internal leave policies are more generous than FMLA, with some employers even offering paid leave in certain circumstances.

Also, the employee might also check with their employer to see if they could use any paid time off, including sick time or vacation time, for a medical leave. The employee and the employer would need to agree on the length of leave and how the leave would work.

Lastly, if an employee does not qualify for FMLA, they could also schedule some time to sit down and speak with their employer and see if they can work something out. Maybe this would mean working reduced hours, working from home full time with flexible hours, or simply working part time.

The content appearing on this website is not intended as, and shall not be relied upon as, legal advice. It is general in nature and may not reflect all recent legal developments. Thomson Reuters is not a law firm, and an attorney-client relationship is not formed through your use of this website. You should consult with qualified legal counsel before acting on any content found on this website.

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