FMLA: Everything You Need to Know

What are your legal rights regarding family leave from work? Here's what you're entitled to under The Family and Medical Leave Act (FMLA).

Mother and father with their newborn baby

Kelsey Smith / Stocksy

The United States is the only industrialized nation without paid leave. In 2021, Congress failed to get a whittled-down four weeks of federal paid leave across after objections from West Virginia Senator Joe Manchin. It's a pain point for American families who want to meet lactation guidelines and heal from childbirth but instead must navigate high child care costs.

Fewer than one-quarter of civilian or private industry workers had access to paid family leave through their employer in March of 2021, according to the Department of Labor.

But caregivers may have another option called FMLA. It stands for Family Medical Leave Act, which was signed into law in 1993 by the former President Bill Clinton.

"It protects the job position of employees who had to take a leave under difficult circumstances," explains Martian Gasparian, Esq., a California-based attorney and owner of Maison Law.

It sounds straightforward, but it can often feel like anything but to pregnant employees. Still, experts share it's essential to know the ins and outs of FMLA, whether you're expecting a child or not.

"It is important to understand how to navigate FMLA in the event that something happens to you or a loved one and you need time away from work in order to support yourself or your family," says Celia Balson, founder and CEO of the HR consulting agency Work Friendly and a mother to a toddler.

Experts shared tips and resources for families in need of FMLA.

What Is FMLA?

Gasparian says that FMLA is designed to protect the rights of employees and workers who need to take a leave that may last up to 12 months during one calendar year. "FMLA mandates your employer to allow you to return to work after your leave or absence," Gasparian says.

It's not paid for employees and not optional for most employers. However, there are a few caveats, explains David C. Miller, Esq., a Miami-based labor and employment lawyer with Bryant Miller Olive.

First, the employee is not guaranteed their exact position when they return, but they must have an "equivalent." The Department of Labor defines "equivalent job" as "a job that is virtually identical to the original job in terms of pay, benefits, and other employment terms and conditions (including shift and location)."

The leave doesn't have to be taken all at once, but it can't be stacked with other employer benefits.

"The employer can require the use of any employer-provided paid leave, such as sick or vacation, concurrently with the FMLA leave," Miller says.

When Does FMLA Start?

The simplest answer is that FMLA begins when an employer designates it as such, Miller says. Of course, the employee has something to do with the start date of FMLA.

"Generally, employees must give 30 days' notice of the need to take FMLA when there is a foreseeable need to utilize this benefit," Balson says. "If this does not occur, the employer has the right to delay the leave until 30 days after the notice is provided to the employer."

Pregnancy does not always go according to plan, though. A baby may be born a month or more ahead of their estimated due date.

In this case, Balson says that the Department. of Labor requires that "the employee must notify their employer as soon as they are able to."

Once the employer is notified, Balson says they'll begin the FMLA process. Employers will follow this general timeline even if an employee told them fewer than 30 days in advance of the leave, the Department of Labor says.

"This process includes notifying you if you are eligible for FMLA within five days of you sharing supporting documentation or the FMLA application," Balson says. "If you are eligible, your employer will provide you with your FMLA rights and responsibilities, as well as any request for certification. Once leave is approved, your unpaid FMLA leave will begin."

Who Is Covered Under FMLA?

According to the Department of Labor, an employee is eligible for FMLA under the following conditions:

  • They have worked for the employer for at least 12 months.
  • They have logged at least 1,250 hours of service during the 12 months prior to going on leave.
  • They work at a location in which the employer has a minimum of 50 total employees. These employees must work within 75 miles of the worksite of the employee wishing to take leave.

Birthing people are just some of the people eligible for FMLA. According to the Department of Labor, FMLA covers:

  • Adoptive or foster parents
  • Non-birthing parents wishing to bond with a child (The caveat: The person must take their leave within one year of the child's birth or placement with the family)
  • Individuals who must care for a child, spouse, or parent with specific serious medical conditions
  • Employees with a serious qualifying medical condition that prevents them from doing their job.

FMLA Resources

Balson says your HR department is often your best resource for information on FMLA. "They will advise you of the documentation that is needed and guide you through the process," Balson says.

For example, HR will confirm you are eligible within five days of you sharing the appropriate documentation of your need to take FMLA. If you're pregnant, you meet that qualification. Still, your employer can inform you about other conditions, such as your time with the company and their employee totals, that may affect your eligibility status.

That said, your company may not have a large HR department, or you may wish to familiarize yourself with the process. Gasparian suggests using the Department of Labor website. The agency has a straightforward fact sheet in simple terms.

Was this page helpful?
Related Articles