Skip to main content
Employer Assistance & Resource Network on Disability Inclusion (EARN): A service of The Viscardi Center.
AskEARN logo Home Search 
Employer Assistance & Resource Network on Disability Inclusion (EARN): A service of The Viscardi Center    Search 

Family and Medical Leave Act

What is the Family and Medical Leave Act (FMLA)?

The Family and Medical Leave Act (FMLA) allows employees to take up to 12 weeks of unpaid leave in any twelve-month period for the birth or adoption of a child, to care for a family member, or in the event of the employee's own serious health condition.

Employees can take leave:

  • In a continuous block
  • By working on a reduced schedule
  • On an intermittent basis (in some circumstances)

While FMLA leave is generally unpaid, employees may choose (or employers may require the employee) to use accrued paid leave concurrently with the FMLA in certain circumstances. The ability of the employee to substitute (run concurrently) accrued paid leave is determined by the terms and conditions of the employer's normal leave policy. See 29 CFR 825.207 for more information.

What is a "Serious Health Condition"?

Under the FMLA, a serious health condition is an "illness, injury, impairment or any physical or mental condition that requires inpatient medical care or continuing treatment by a health care provider."

The condition may be temporary, but must require an absence from work of more than three days and a continuation of treatment or meet other specific requirements. Any condition must meet the objective definitions provided at 29 CFR 825.115 in order to qualify as a serious health condition under the FMLA.

A cold or flu not requiring ongoing medical treatment generally would not qualify an employee for leave, while, typically, an illness requiring hospitalization or outpatient surgery will qualify an individual for leave under the FMLA if all of the criteria are met.

Serious Health Conditions include, but are not limited to:

  • Emphysema and severe respiratory conditions (such as chronic asthma)
  • Heart attacks and heart conditions requiring bypass or valve operations
  • Back conditions requiring surgery or extensive therapy
  • Most cancers
  • Strokes
  • Spinal injuries
  • Severe arthritis
  • Pneumonia
  • Any serious injury caused by an accident on or off the job
  • Severe psychiatric disabilities
  • Appendicitis
  • Emotional distress following a miscarriage
  • Migraine headaches

When are employers required to grant FMLA leave?

Not all employees are entitled to take leave under the FMLA.

First, an employer must be "covered" (29 CFR 825.104) under the FMLA. The FMLA applies to:

  • Any state and local government agency, regardless of the total number of employees
  • A private employer with 50 or more employees.

An employee who works for a covered employer is eligible (29 CFR 825.110) if they have worked for their employer for at least:

  • 12 months,
  • 1,250 hours, and
  • At a location with 50 employees within 75 miles of that location.

When must an employee notify their employer of need to take FMLA leave?

Eligible employees must follow certain procedures in order to take FMLA leave.

  • If the employee knows in advance that he or she will need a leave, or the employee learns of the need for leave less than 30 days in advance, they must give the employer thirty days' notice.
  • If the situation is an emergency, the employee must notify the employer as soon as it is practical.

For more information on notice requirements, see 29 CFR 825.300.

Can employees be eligible for leave under both FMLA and the ADA?

Yes, it is possible for an employee to have a serious health condition under the FMLA and a disability under the Americans with Disabilities Act (ADA). If leave is being requested for an employee's own serious health condition, assessment of the nature of the condition will determine which benefits are applicable and most appropriate. An employer must provide leave under whichever statutory provision provides the greater rights to employees. See 29 CFR 825.702 for more information.

While employees qualify for FMLA as described above, they are only qualified for leave under the ADA if they have a disability defined as a physical or mental impairment that substantially limits a major life activity. Temporary, non-chronic impairments typically do not qualify as disabilities. Examples of temporary impairments include:

  • Broken bones
  • Pregnancy
  • Flu
  • Appendicitis
  • Non-chronic infections.

Employees with temporary impairments would not qualify for leave under ADA but may qualify for FMLA leave.

For more information on ADA and FMLA, see the Employment and Disability Institute's Leave Rights under the FMLA and ADA: The Intersection of Two Laws Impacting Employee Leave and Return to Work.

Can employers require that employees submit documentation of their serious health condition before granting FMLA leave?

Yes, employers may require that the employee submit written medical certification to verify any claimed health condition.

Employers may ask a physician to:

  • Certify that leave is necessary
  • Indicate the expected length and timing of leave

Employers may request sufficient information to verify that an employee, or the employee's ill family member, has a serious health condition, the likely periods of absences, and general information about the regimen of treatment. An employer may not require a diagnosis or specific information related to the long term prognosis. Requests for information should be narrowly tailored and ask only for the information necessary to verify an employee's eligibility for leave under the FMLA.

What must an employer do while an employee is on leave?

While an employee is on leave under the FMLA, employers must:

  • Maintain benefits for the individual, such as group health care. (If applicable, the employee must also continue to make payments toward benefits during their leave).
  • Allow the employee to return to the same or equivalent job at the end of the leave

For individuals with documented disabilities, employers may offer reasonable accommodations to minimize leave or offer leave as a reasonable accommodation. Companies should reexamine their leave policies to ensure that they provide the level of flexibility needed to comply with the ADA and reasonable accommodation requirements. Keep in mind; the provisions of the FMLA are wholly distinct from the reasonable accommodation requirements of the ADA.

What obligation do employers have to employees who are members of military families?

The FMLA military family leave provisions provide qualifying exigency and military caregiver leave for employees with family members who are covered military members.

Exigency leave allows eligible employees up to 12 weeks of unpaid leave during a 12 month period to attend military events and activities and to address childcare, financial, legal and other issues that arise because the employee's spouse, son, daughter, or parent:

Military caregiver leave entitles eligible employees who are the spouse, son, daughter, parent, or next of kin of a covered service member to take up to 26 workweeks of unpaid FMLA leave in a single 12-month period to care for a covered service member with a serious injury or illness (PDF).


Other Resources

e-laws Advisor<>
The e-laws Advisors are interactive e-tools that provide easy-to-understand information about a number of Federal employment laws. Each Advisor simulates the interaction that you might have with an employment law expert. It asks questions and provides answers based on responses given.

Employment Laws: Disability and Discrimination<>
This resource reviews five employment laws and provides information to assist employers in determining which laws apply to their businesses.

Employment Laws: Medical and Disability-Related Leave<>
This Department of Labor Office of Disability Employment Policy (ODEP) resource provides information to assist employers in gaining a better understanding of employment laws.

U.S. Department of Labor: Family and Medical Leave Act Employee Guide<>
As part of the Department of Labor's continuing effort to make the FMLA more accessible, they have released this Employee Guide to the FMLA. Employers can use this 16-page, plain language booklet to communicate more clearly with employees about the protections and limitations of FMLA.

Family and Medical Leave (FMLA) Advisor<>
This U.S. Department of Labor resource provides information about which employers are required to provide FMLA leave as well as which employees are eligible to take such leave. In addition, it outlines valid reasons for leave and employer and employee notice requirements and other responsibilities under the law.

Family and Medical Leave Act<>
This resource from the Department of Labor Wage and Hour Division provides an overview of the Family and Medical Leave Act (FMLA) and provides additional information on the specific reasons for utilization of FMLA.

Page last updated on Wednesday, February 12, 2014