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U.S. Department of Labor | Employment Standards Administration | Wage and Hour Division

WHD Publication 1420 Revised January 2009

EMPLOYEE RIGHTS AND RESPONSIBILITIES

UNDER THE FAMILY AND MEDICAL LEAVE ACT

Basic Leave Entitlement

FMLA requires covered employers to provide up to 12 weeks of unpaid, job-

protected leave to eligible employees for the following reasons:

•

For incapacity due to pregnancy, prenatal medical care or child birth;

•

To care for the employee’s child after birth, or placement for adoption

or foster care;

•

To care for the employee’s spouse, son or daughter, or parent, who has

a serious health condition; or

•

For a serious health condition that makes the employee unable to

perform the employee’s job.

Military Family Leave Entitlements

Eligible employees with a spouse, son, daughter, or parent on active duty or

call to active duty status in the National Guard or Reserves in support of a

contingency operation may use their 12-week leave entitlement to address

certain qualifying exigencies. Qualifying exigencies may include attending

certain military events, arranging for alternative childcare, addressing certain

financial and legal arrangements, attending certain counseling sessions, and

attending post-deployment reintegration briefings.

FMLA also includes a special leave entitlement that permits eligible

employees to take up to 26 weeks of leave to care for a covered

servicemember during a single 12-month period. A covered servicemember

is a current member of the Armed Forces, including a member of the

National Guard or Reserves, who has a serious injury or illness incurred in

the line of duty on active duty that may render the servicemember medically

unfit to perform his or her duties for which the servicemember is undergoing

medical treatment, recuperation, or therapy; or is in outpatient status; or is on

the temporary disability retired list.

Benefits and Protections

During FMLA leave, the employer must maintain the employee’s health

coverage under any “group health plan” on the same terms as if the employee

had continued to work. Upon return from FMLA leave, most employees

must be restored to their original or equivalent positions with equivalent pay,

benefits, and other employment terms.

Use of FMLA leave cannot result in the loss of any employment benefit that

accrued prior to the start of an employee’s leave.

Eligibility Requirements

Employees are eligible if they have worked for a covered employer for at

least one year, for 1,250 hours over the previous 12 months, and if at least 50

employees are employed by the employer within 75 miles.

Definition of Serious Health Condition

A serious health condition is an illness, injury, impairment, or physical or

mental condition that involves either an overnight stay in a medical care

facility, or continuing treatment by a health care provider for a condition that

either prevents the employee from performing the functions of the

employee’s job, or prevents the qualified family member from participating

in school or other daily activities.

Subject to certain conditions, the continuing treatment requirement may be

met by a period of incapacity of more than 3 consecutive calendar days

combined with at least two visits to a health care provider or one visit and a

regimen of continuing treatment, or incapacity due to pregnancy, or

incapacity due to a chronic condition. Other conditions may meet the

definition of continuing treatment.

Use of Leave

An employee does not need to use this leave entitlement in one block. Leave

can be taken intermittently or on a reduced leave schedule when medically

necessary. Employees must make reasonable efforts to schedule leave for

planned medical treatment so as not to unduly disrupt the employer’s

operations. Leave due to qualifying exigencies may also be taken on an

intermittent basis.

Substitution of Paid Leave for Unpaid Leave

Employees may choose or employers may require use of accrued paid leave

while taking FMLA leave. In order to use paid leave for FMLA leave,

employees must comply with the employer’s normal paid leave policies.

Employee Responsibilities

Employees must provide 30 days advance notice of the need to take FMLA

leave when the need is foreseeable. When 30 days notice is not possible, the

employee must provide notice as soon as practicable and generally must

comply with an employer’s normal call-in procedures.

Employees must provide sufficient information for the employer to

determine if the leave may qualify for FMLA protection and the anticipated

timing and duration of the leave. Sufficient information may include that the

employee is unable to perform job functions, the family member is unable to

perform daily activities, the need for hospitalization or continuing treatment

by a health care provider, or circumstances supporting the need for military

family leave. Employees also must inform the employer if the requested

leave is for a reason for which FMLA leave was previously taken or certified.

Employees also may be required to provide a certification and periodic

recertification supporting the need for leave.

Employer Responsibilities

Covered employers must inform employees requesting leave whether they

are eligible under FMLA. If they are, the notice must specify any additional

information required as well as the employees’ rights and responsibilities. If

they are not eligible, the employer must provide a reason for the ineligibility.

Covered employers must inform employees if leave will be designated as

FMLA-protected and the amount of leave counted against the employee’s

leave entitlement. If the employer determines that the leave is not FMLA-

protected, the employer must notify the employee.

Unlawful Acts by Employers

FMLA makes it unlawful for any employer to:

•

Interfere with, restrain, or deny the exercise of any right provided under

FMLA;

•

Discharge or discriminate against any person for opposing any practice

made unlawful by FMLA or for involvement in any proceeding under

or relating to FMLA.

Enforcement

An employee may file a complaint with the U.S. Department of Labor or

may bring a private lawsuit against an employer.

FMLA does not affect any Federal or State law prohibiting discrimination, or

supersede any State or local law or collective bargaining agreement which

provides greater family or medical leave rights.

FMLA section 109 (29 U.S.C. § 2619) requires FMLA covered

employers to post the text of this notice. Regulations 29