The Requirements To Qualify For FMLA Leave
You can take unpaid time off from work if you meet all of the following requirements.
Your employer is subject to the FMLA. The Family and Medical Leave Act applies to:
- Employers with 50 or more employees who work within a 75 mile radius of each other. The total size of the employer is not important. The key is whether the employer has 50 or more employees working within 75 miles of your place of work.
- Some federal, state and local government agencies or divisions with 50 or more employees working within a 75 mile radius of each other. Again, the key isn't the size of the employer - there must be 50 or more employees that work within 75 miles of the place where you work.
- Teachers and state employees have their own rules.
You have been employed by your employer for at least 12 months. To be eligible for FMLA leave:
- You must have worked a minimum of 12 months for your current employer.
- The time does not have to be consecutive. There could have been breaks in your employment.
- The location of your work during those 12 months is not considered. The location can have changed during those twelve months. The key is that you worked for the same employer.
- The employer does not have to count employment prior to a continuous break in service of seven y ears or more, unless:
- The break in service was because of the employee's fulfillment of military service obligations in the National Guard or Reserves, or
- Unless a collective bargaining agreement affirmed the employer's intention to rehire the employee after the break in service.
- There are special rules for state employees.
You have worked for your employer at least 1,250 hours during the previous 12 month period.
As a rule of thumb, the following may be helpful for estimating whether you worked 1,250 hours:
- Approximately 24 hours per week for each of the last 52 weeks (24 x 52 = 1,248)
- Approximately 104 hours per month for each of the last 12 months (104 x 12 = 1,248)
- Approximately 40 hours per week for more than 31 weeks of the year (31 x 40 = 1,240)
NOTE: The required 1.250 hours do not have to be consecutive. There can be gaps.
You have been diagnosed with a serious health condition OR need time off due to the birth or adoption of a child OR to care for an ill parent, spouse or child.
You may have a "serious health condition" as defined by the FMLA if:
- Your health condition requires you to take off from work periodically or on a recurring basis
- You need the full 12 weeks off because of your health condition.
You do not need to take off all the time at once. For example, chemotherapy may require that you take only a few days off each week. This is known as "intermittent leave."
If you are uncertain whether you have a "serious health condition" for FMLA purposes, consider the following: a "serious health condition" is an illness, injury, impairment, or physical or mental condition that involves any one of the following:
- Incapacity You have a serious health condition if:
- You are incapacitated (for example, you are unable to work, attend school or perform other regular daily activities)
- Due to a health condition or treatment for, or recovery from, the health condition
- That lasts more than three consecutive days, and
- You receive "continuing treatment" from a health care provider during that period.
- "Continuing treatment" means incapacity for more than three consecutive days and subsequent treatment (such as taking medication) OR
- Incapacity that involves either two visits to the doctor or one visit to the doctor and a regiment of continuing treatment under the doctor's supervision.
- Permanent or long-term condition A serious health condition could also be a permanent or long-term condition for which treatment may not be effective, such as Alzheimer's, a severe stroke, or terminal cancer. Only supervision by a health care provider is required, not active treatment.
- Treatment The definition of "serious health condition" for purposes of FMLA also includes absences due to multiple treatments for a condition which would likely result in a period of incapacity of more than three days if not treated. For example, chemotherapy and radiation treatments or multiple treatments for restorative surgery.
- Chronic serious health condition "Serious health condition" includes a chronic health condition which continues over an extended period of time, requires periodic visits to a health care provider, and may involve occasional episodes of incapacity. Among others, diabetes and asthma are two examples of chronic serious health conditions. It is not necessary that you visit a doctor or other health care provider for each absence.
- Stay in a hospital, hospice or residential medical-care facility You have a serious health condition if you are an inpatient (a patient that stays overnight) in a hospital, hospice or residential medical-care facility because you are incapacitated or for treatment. Your health condition continues to be "serious" during any period of incapacity or subsequent treatment connected with your stay.
- Pregnancy Pregnancy or prenatal care is a serious health condition, even without a visit to a health care provider during each absence.
If the time off is because of a serious health condition, you are unable to perform your job and need time off for medical treatment or as a result of the condition itself.
- You will likely have to prove to your employer that you are unable to do your job and need time off as described.
- Your employer must advise you in writing of any requirement to provide medical certification and allow at least 15 calendar days for you to provide it. If circumstances cause you to be unable to provide the certification within 15 days, the period is extended as long as you are making a reasonable effort under the circumstances.
- If your employer has a reason to question the medical certification you provide, the employer may require a second medical opinion from a doctor selected and paid for by the employer. The employer may not use a company doctor, or a doctor with whom the employer has an ongoing relationship.
- If the opinions of the two doctors differ, the employer may require you to obtain a third medical opinion from a doctor selected by agreement between you and the employer. The results of the third medical opinion are binding.
You give your employer appropriate notice.
- Notice Requirements For Foreseeable events You must give your employer 30 days notice for foreseeable events, such as the birth of a child, or pre-planned medical treatment. This notice is not set in stone. For example, you can plan for the date of the birth of a child as much as you would like, but you are allowed flexibility if the baby is born pre-maturely.
- Notice Requirements For Unforeseeable events If your need for time off was unforeseeable, you are simply required to give notice as soon as practical. For example, if you were suddenly hospitalized due to an emergency, you or a family member could exercise your rights to unpaid leave under the FMLA by contacting your employer via telephone. However, if you neglected to tell your employer about a planned hospitalization for medical treatment, it is unlikely that you would be entitled to leave under the FMLA.
- Employer's rules Notice must comply with your employer's rules for requesting leaves. That doesn't mean the employer can change the amount of time for notice. Rather, the rules you have to follow relate to how notice is to be given etc. For instance, the employer may have a specific person to whom notice is to be given.
- As a practical matter, it is advisable to provide your employer with as much notice as possible before taking your leave.Before asking for time off, be sure to read Before Asking For Time Off Under The FMLA and How Do I Request Time Off Under The FMLA.
The leave is approved by your employer.
While the timing of your leave must be approved by your employer, your employer may not withhold approval arbitrarily if you meet the notice and certification requirements. The employer can't even deny time off if it's a busy time and the employer needs all the help it can get.
For example: Cynthia works in a department store with 120 employees as a sales person. She's worked for the company for 5 years, put in many more than the required 1,250 hours during the last 12 months and wants to take time off for breast reduction surgery at the advice of her physician. Even if it is the middle of the Christmas holiday season, and the store has no one else that can take over her duties on such short notice, the store can not prohibit Cynthia from taking leave until after the holiday period.
You provide medical certification for leave taken for a serious health condition if required by your employer.
You have the responsibility of providing your employer with sufficient information and/or medical certification regarding your request for leave. This usually takes the form of a certification from your doctor stating that your health condition requires you to take time off from work.
- You do not have to provide your medical records.
- Technically you do not have to include your diagnosis.
Generally the proof used for FMLA purposes is only certification from your doctor that you have a health condition and need for time off.
If your need for FMLA leave continues, your employer may ask for recertification from your health care provider.
If you don't fit the requirements, see What If I'm Not Entitled to FMLA Leave Or Need More Time Off?
NOTE: If you take leave, your employer is entitled to ask for a "fitness for duty" certification from your health care provider.
Click on the link to learn about:
- The definition of healthcare provider under the FMLA
- Healthcare provider certification under the FMLA
- Recertification under the FMLA
- Fitness for duty certification under the FMLA
- Eight Steps To Take Before Requesting Leave Under The FMLA
- What If I Am Not Entitled To Leave Under The FMLA, But Need Time Off?
Reviewed and edited by Lisa Gerson, Esq.
McDermott Will & Emery LLP
340 Madison Avenue
New York, New York 10127-1922