1. Legal Technology, Content and Solutions
  2. Insights
  3. Articles
  4. Understanding the FMLA leave of absence requirements

article

Basics of the FMLA: Leave of absence requirements

Plenty of circumstances can come up and leave an employee in need of time away from work. Many of these reasons may fall under the umbrella of the Family and Medical Leave Act (FMLA), which employers — including public agencies and private-sector companies with 50 or more employees — need to follow.

When an eligible employee seeks time off under the FMLA, their leave of absence can typically last up to 12 weeks. It's unpaid time, but it provides job protection for the employee who uses it. While it may seem straightforward, there are nevertheless several requirements that an eligible employee must meet in order to take an FMLA leave of absence.

Which employees are covered by the FMLA?

Employees need to meet certain criteria in order to qualify for leave under the FMLA. And, while any type of leave of absence can involve different requirements, the FMLA has a few that are specific to it. They include:

  • The employee must work for a "covered" employer, including private employers with 50 or more employees, public agencies, and public or private elementary and secondary schools.
  • The employee must have worked for the employer at least 12 months, although they don't need to be consecutive.
  • The employee must have worked at least 1,250 hours during the 12 months leading up to the FMLA leave of absence.
  • The employee must work at a location with at least 50 employees or there must be at least 50 employees within 75 miles of that location.

But the requirements listed above are simply the first step — the employee must still have a qualifying reason for taking FMLA leave. Some of these reasons may include, but are not necessarily limited to:

  • The birth and care of a new child, which can also include the placement of a new child through adoption or foster care.
  • Incapacity related to prenatal issues, pregnancy in general, or a serious health condition following childbirth.
  • A serious health condition that hinders job performance, which can also include ongoing medical treatments or follow-up care.
  • serious mental health condition.
  • The care of a family member — including a child, spouse, or parent — who is suffering from a serious health condition.

These basic qualifications can be a starting point for an employee seeking an FMLA leave of absence, but there are more components that can make it a bit more complicated.

Understanding the FMLA process

There are several steps that must be taken to use an FMLA leave of absence. Here's a rundown of just a few of the general requirements:

Plan ahead: In most cases, the employee should start the process at least 30 days prior to the date the FMLA leave of absence would begin. For example, if the employee is planning to have a surgery, they should give their employer 30 days’ advance notice. There are exceptions, such as personal health issues that need to be addressed right away, but generally the employee must inform their employer as soon as they can.

Get the signoffs: As the process moves forward, several different types of paperwork are typically required to proceed with an FMLA request. The leave of absence needs to be signed off and certified by someone who can attest to the reason, such as a medical doctor addressing a personal health condition or that of a family member.

There are different certification forms that correspond to the reason for taking leave — for example, a personal medical leave request may need a doctor to provide information about the extent of the medical condition. A different document might be requested to prove a relationship to a person in a caregiving situation.

Other forms of documentation may also be needed to verify and prove additional details about the request for leave of absence. This stage can be very thorough.

When an employee returns to work after a leave of absence

When the duration of an FMLA leave is over, the employee will have a job to return to. In some cases, however, the job may not be the exact same position. The FMLA provides job security to the person taking leave, but it gives the employer a degree of flexibility to build around workplace needs in the person's absence, which can result in a slight shift in the job upon return.

However, the FMLA also requires that the "new" job be nearly identical to the previous role, meaning a person typically can't be pushed into a job they're unqualified or unprepared for, or one that pays less than the previous role.

Taking an FMLA leave of absence has many steps. But whether you are an employee seeking leave or the employer of one, knowing the basics of the FMLA process can make everything simpler and easier to follow.

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.


Want even greater insight? Try Practical Law.

Access a comprehensive collection of employment-related legal resources, including how-to guides and checklists created by our expert attorney-editors