Under the federal Family and Medical Leave Act (FMLA), eligible workers are generally given up to 12 weeks of unpaid, job-protected leave per year for qualifying medical and family-care reasons. The U.S. Department of Labor (DOL), which administers the FMLA, says a covered employer is generally required to hold the worker's position (or an equivalent one) for return, and to continue health insurance during the leave on the same terms as if the worker were still working. The FMLA covers roughly 60% of US workers; the other 40% — mostly people at small employers — may have state-level protections instead, or may have no formal job protection. Knowing which bucket you are in is something many people sort out before asking for time off. The specifics depend on your situation and your state, and these rules and figures can change.
What does federal law say?
Under the FMLA, a worker is generally eligible only when all three of these are true, per the DOL's eligibility rules:
- Employer size: the employer has 50 or more employees within 75 miles of the worksite
- Tenure: the worker has been employed for at least 12 months (not necessarily consecutive, but generally within the past 7 years)
- Hours worked: the worker logged at least 1,250 hours in the 12 months before leave starts (roughly 24 hours/week)
The FMLA generally covers leave for:
- Your own serious health condition (surgery, hospitalization, ongoing treatment for chronic conditions)
- Caring for a spouse, child, or parent with a serious health condition
- The birth, adoption, or foster placement of a child (within one year of placement)
- Qualifying military exigencies for a family member on active duty
- Up to 26 weeks (not 12) to care for a covered servicemember with a serious injury
How does this vary by state?
State law varies a great deal here, and these programs and figures continue to change — your state may differ:
California: the California Family Rights Act (CFRA), administered by the California Civil Rights Department, generally mirrors the FMLA but applies to employers with 5+ employees — vastly broader coverage than federal. CFRA also generally covers care for adult siblings, grandparents, grandchildren, parents-in-law, and chosen family. California's Employment Development Department (EDD) also runs Paid Family Leave (PFL), which generally provides partial wage replacement during qualifying leave (PFL provides wage replacement, not job protection on its own — FMLA or CFRA may supply the job protection).
New York: New York State Paid Family Leave (PFL) generally provides up to 12 weeks of paid leave at 67% of average weekly wages (capped). Job protection generally mirrors the FMLA, and the program generally applies to nearly all private employers regardless of size.
Massachusetts, Washington, Oregon, Colorado, Connecticut, DC, NJ, RI: Each generally runs its own paid family/medical leave program with different eligibility thresholds, benefit amounts, and qualifying reasons — typically broader than federal FMLA. The details vary by state.
Texas: Generally federal-only. The FMLA applies; there is generally no state-level paid leave program for private-sector workers.
How do you take FMLA leave, step by step?
The specifics depend on your situation, but here is the sequence many people follow.
1. Many people confirm eligibility before requesting
A common first step is to check employer size, tenure, and hours worked over the past year against the FMLA criteria above. If federal FMLA does not apply, many people then look at their state's leave laws.
2. Notice as soon as is reasonable
For foreseeable leave (planned surgery, baby due date), the DOL generally calls for at least 30 days' notice. For unforeseeable leave (sudden illness, accident), the DOL says workers are generally expected to notify the employer as soon as practicable — often within 1-2 business days.
3. Many people request leave in writing
An email or written request creates a paper trail. A common approach is to include the qualifying reason, expected start date, expected duration, and whether the leave is continuous or intermittent. Under the FMLA, a worker generally does not have to disclose the underlying medical diagnosis.
4. The medical certification
An employer can generally require a certification from a healthcare provider. The DOL forms (WH-380-E for the employee's own condition, WH-380-F for a family member) ask about the condition and expected duration. The DOL generally allows 15 calendar days to return it — an employer can generally deny FMLA protection when certification is not returned on time, so many people calendar this deadline.
5. Confirming benefits continuation
During FMLA leave, health insurance generally must continue on the same terms (same employer contribution), though the worker generally remains responsible for their share of premiums. It often helps to get the continuation arrangement in writing.
6. Many people document everything during leave
Saving emails confirming approval, certification submissions, and any communications about job status is a common habit. Many people keep their manager appraised at an agreed cadence — a worker on FMLA leave is generally not obligated to work, but staying reachable can help.
7. Returning on or before the committed date
Returning even a day late after a 12-week leave can, in some circumstances, forfeit the reinstatement right — the specifics depend on your situation. If more time is needed, a common step is to request a new certification before the original end date.
What red flags should you watch for?
- HR or a manager pressures the worker to use vacation/PTO instead of FMLA (under the FMLA, leave can generally run concurrently with PTO; many people ask for the FMLA designation explicitly)
- The job is restructured or "eliminated" while the worker is on leave
- The worker returns to a "comparable" role that pays less, has different hours, or different responsibilities (the FMLA generally requires the same or an equivalent position — with pay, benefits, and status preserved)
- The employer refuses to certify leave despite an apparently qualifying reason
- The worker is placed on a PIP within weeks of returning from FMLA leave (something the DOL may treat as potential retaliation)
- The employer treats FMLA-covered absences as performance issues
- The medical certification form asks for diagnosis details the FMLA generally does not entitle an employer to request
When should you talk to a lawyer?
Many people consult an employment attorney when:
- An FMLA request was denied and they believe they qualified
- They were terminated during or shortly after FMLA leave
- Their job changed materially after returning from leave
- They faced a sudden performance criticism (PIP, demotion, reorg) close to their leave dates
- An employer demanded medical details the FMLA generally does not permit them to request
- They are about to take leave at a company whose history suggests retaliation
FMLA retaliation claims generally carry a relatively short statute of limitations (the DOL describes a 2-year window, sometimes 3 years for willful violations) — the exact deadline depends on your situation. Many people who are within that window and have a documentable claim find it helps not to wait.
Official sources
- U.S. Code — Family and Medical Leave Act of 1993, 29 U.S.C. Chapter 28
- New York State — Paid Family Leave
- California Employment Development Department — Paid Family Leave