The American Cancer Society does not offer legal advice. This information is intended to provide general background in this area of the law.

What is FMLA?

The Family and Medical Leave Act (FMLA) of 1993 provides certain employees with up to 12 weeks of unpaid, job-protected leave per year. It also requires that the employee's group health benefits be maintained during the leave. FMLA is designed to help employees balance their work and family responsibilities by allowing them to take reasonable unpaid leave for certain family and medical reasons.

FMLA applies to all public agencies, public and private elementary and secondary schools, and companies with 50 or more employees. These employers must provide an eligible employee with up to 12 weeks of unpaid leave each year for any of the following reasons:

• for the birth and care of the newborn child of an employee
• for placement with the employee of a child for adoption or foster care
• to care for an immediate family member (spouse, child, or parent) with a serious health condition
• to take medical leave when the employee is unable to work because of a serious health condition

Special rules apply to school employees. There are some limits on reduced schedules and the taking of FMLA leave near the end of a term.

The rest of the information shared here is focused on FMLA for serious health conditions.

Who is eligible to take FMLA leave?

Employees are eligible for leave if all of the following apply:

• they have worked for their employer at least 12 months
• they have worked at least 1,250 hours over the past 12 months
• they work at a location where the company employs 50 or more employees within 75 miles

What if I left my job and then returned to it? What counts toward the 1,250 hours that I need to qualify for FMLA?

First of all, the 12 months of service do not have to be continuous or consecutive; all time you have worked for the employer is counted. But, you still must have worked 1,250 hours in the past 12 months to qualify. The 1,250 hours include only those hours actually worked for the employer. Paid leave time, previous FMLA leave, and other absences from work do not count toward the 1,250 hours.

Your individual record of hours worked is used to decide whether 1,250 hours had been worked in the 12 months before you start FMLA leave. The following may help you figure out whether the 1,250-hour requirement has been met:

• 24 hours worked in each of the 52 weeks of the past year, or
• over 104 hours worked in each of the 12 months of the past year, or
• 40 hours worked per week for more than 31 weeks (over 7 months) of the past year.

What counts as a serious health condition?

"Serious health condition" is defined in more than one way. It can mean any illness, injury, impairment, or physical or mental condition that involves any period of illness or treatment connected with inpatient care. (This means at least one overnight stay in a hospital, hospice, or residential health-care facility, and any period of illness or treatment which afterward involves incapacity--which means the person cannot work, go to school, or perform regular activities.)

A serious health condition does not always involve a hospital stay. It may also be a condition that involves continued treatment, which includes any period of incapacity due to any of the following:

• a health condition (including treatment and recovery from it) that lasts more than 3 days in a row, and any treatment after that. It includes any period of incapacity related to that same condition, and must also involve:
  -- being treated 2 or more times by or under the supervision of a health care provider, or
  -- being treated once by a health care provider with a continuing regimen of treatment. 
• a permanent or long-term condition for which treatment may not be effective (for instance, a severe stroke, terminal cancer). Only supervision by a health care provider is required, rather than active treatment.
• any absences for surgery or multiple treatments for a condition which would likely result in a period of incapacity if not treated (for example, chemotherapy or radiation treatments for cancer)

How far ahead of time must I request FMLA leave?

If possible, an employee must provide the employer with at least 30 days notice before FMLA leave is to begin. This only applies to planned medical treatments and elective surgery. Knowing that far ahead is rarely possible when you have cancer. In the case of unexpected need due to serious illness, you must let your employer know as soon as possible, at least within 1 to 2 business days of when you first learn you will need leave.

May I use FMLA to take off several short periods?

The FMLA leave can be taken all at once or it can be taken in shorter blocks of time, such as 2 days a week, or one week a month, as long as it is taken for a single reason. FMLA can also be used to reduce the amount of time you work each day, for instance, so that you work a part-time schedule for awhile. You may have to supply a doctor's note to verify that your medical condition is serious and that you are unable to work for these times, or that your family member's serious illness requires you to take this time for his or her care.

Does time I took off for illness or pregnancy count against my FMLA time if I need to take off again for a new illness in the same 12 months?

Time taken off work due to any illness, pregnancy, or complications of pregnancy can be counted against the 12 weeks of family and medical leave per 12-month period. The employer must let the employee know that the pregnancy leave was counted as FMLA.

Does workers' compensation leave count against my FMLA leave?

It can. FMLA leave and workers' compensation leave can run together. This means that time off for a serious work-related injury or illness can be counted as FMLA leave. The employer must notify the employee at the start of the leave time that the workers' compensation leave will be counted as FMLA leave.

Who defines the 12-month period during which can I take off up to 12 weeks under FMLA?

In selecting your 12-month period, the employer may choose to use:

• the calendar year, January through December
• any fixed 12-month "leave year" such as their fiscal year, or a year required by state law
• a year that starts on the your "anniversary" date (counted from the date you were hired)
• the 12-month period counted forward from the date your first FMLA leave begins
• a "rolling" 12-month period measured backward from the date you used FMLA leave

Can I use my sick or vacation leave time for FMLA so that I can be paid?

The FMLA only requires unpaid leave. However, it permits an employee to choose to use accrued paid leave, such as vacation or sick leave, for some or all of the FMLA leave period. The law also permits the employer to require the employee use paid leave in this way. The employer must decide if an employee's use of paid leave counts as FMLA leave, based on information from the employee. When paid leave is used for unpaid FMLA leave, it may be counted against the 12 weeks of FMLA leave if the employee is notified that this is the case when the leave begins.

Who is considered an "immediate family member"?

An employee's spouse, son or daughter under the age of 18, and parents are considered to be immediate family members for purposes of FMLA. The term "parent" does not include a parent in-law. The terms "son" or "daughter" do not include those age 18 or over unless they are unable to take care of themselves because of mental or physical disability that limits one or more of the major life activities as those terms are defined in regulations issued by the Equal Employment Opportunity Commission (EEOC) under the Americans With Disabilities Act (ADA).

If you are taking FMLA leave to take care of someone else, your employer may require that you prove your relationship with that person, as well as providing proof that he or she has a serious illness.

What is medical certification? Must I give my employer my medical records?

No. You do not have to provide medical records to use FMLA. The employer may request that, for any leave taken due to a serious health condition, you provide a medical certification which confirms that a serious health condition exists. This is usually a note or form signed and dated by a doctor that states all of the following:

• that you (or your family member) have a serious illness
• when the illness started
• whether absences are expected to be continuous or in short blocks of time
• when you may be expected to return to work
• whether further treatment will be required after the absence

If your employer asks you for an update on your medical certification or for a second opinion, you may need to provide it in order to keep your FMLA rights (see below).

Can my employer inquire about my leave while I am absent?

Yes, but they may only ask you or get someone else to ask others with your permission, as noted below. Your employer may ask you questions to confirm whether the leave you are taking qualifies for FMLA. The employer may also require that you give them reports on your status and ask whether you intend to return to work after leave.

If the employer wants a second opinion about your condition, you may be required to get more medical certification (a letter or form signed by a doctor that states that a serious illness is involved.) This would be at the employer's expense.

The employer may also have one of their doctors contact your doctor or health care provider, but they need your permission to do so. They can contact your doctor only to clarify what is said in your medical certification or to be sure that it was actually written by him or her. This inquiry may not be used try to get more information about your health condition or that of a family member.

Can my employer require me to return to work before I run out of FMLA time?

Under some conditions, your employer may deny your continuing on FMLA leave due to a serious health condition if you do not provide the required medical certification (written information signed by your doctor.). The employer may not, however, require you to return to work early by offering you a light duty assignment.

Will I lose my job if I take FMLA leave?

Most of the time, employees will not lose their jobs. Employees are generally required to be restored to the same job or an equivalent one. Employers are not allowed to interfere with, restrain, or deny any right provided under this law. Employers cannot use the taking of FMLA leave as a negative factor in employment decisions, such as hiring, promotions, or disciplinary actions. Also, FMLA leave cannot be counted under "no fault" attendance policies.

The employer does not have to allow certain highly-paid, salaried ("key") employees to return to the same job after FMLA leave. However, the employer still must allow the FMLA leave and maintain the employee's benefits. The key employee can still ask to be restored to his or her former job after the leave is over. The employer may refuse to allow the employee to go back to his or her previous job if it causes "substantial and grievous" financial injury to the company.

Employers are also not required to continue FMLA benefits or give jobs back to employees who would have been laid off or otherwise would have lost their jobs if they had continued to work during the FMLA leave period as, for example, due to a general layoff.

Employees who state that they do not intend to return to work lose their rights to FMLA leave and the job. Employees who are unable to return to work and have used up their 12 weeks of FMLA leave in the 12-month period (see section, "Who defines the 12-month period during which can I take off up to 12 weeks under FMLA?") no longer have FMLA protections of leave or of getting their jobs back.

In some cases, if an employer has told an employee that they will require a medical statement that he or she is fit for duty and can return to work, and the employee does not get that statement, the employer may not allow the employee to come back to the job. Or the employer may delay the employee's return until the statement is received.

Can my employer refuse to grant me FMLA leave?

If you are an "eligible" employee who has met FMLA's notice and certification requirements (proper written information from your doctor), and you have not used up your FMLA leave for the 12-month period, you may not be denied FMLA leave. However, any employee who lies or uses fraud to obtain FMLA leave from an employer loses his or her FMLA rights to get back their job or to keep their health benefits.

Do I have to pay for my health care insurance while I am on FMLA?

Your employer is required to keep your group health insurance coverage while you are on FMLA leave if such insurance was provided before the leave was taken. It must be kept on the same terms as if you had continued to work. If you paid all or part of the health care premiums, arrangements will need to be made for you to continue to pay your share while on leave.

In some cases, the employer may require that you repay the premiums it paid to keep your health coverage if you do not return to work after FMLA leave. Your employer cannot do this if your reason for not going back to work was your or your family member's serious health condition. You may need to check with the Wage and Hour Division of the Department of Labor if your employer asks that you pay back the premiums. See the "Additional resources" section.

Are Federal government employees covered by FMLA?

Most employees of the government of the United States are covered by the FMLA or similar rules. Federal employee leave policies are administered by the U.S. Office of Personnel Management (OPM). You may need to contact your agency's personnel or human resources office to find out exactly what applies to you.

I work for a company that employs fewer than 50 people. Is there any kind of leave my employer must offer?

Some states have their own laws or requirements of employers, and there may be other laws that apply to your situation. You can contact the Department of Labor in the "Additional resources" section below and find someone who knows more about your state.

Where can I find out more about FMLA?

To learn more about FMLA provisions and rules, read the FMLA Fact Sheet posted on the United States government's Department of Labor Web site at:www.dol.gov/esa/regs/compliance/whd/whdfs28.htm, or call the Wage and Hour Division's referral and information line at the Department of Labor at 1-866-4 US WAGE (866-487-9243). They can give you other helpful information and tell you how to reach the Department of Labor division office nearest you.

Additional resources

More information from your American Cancer Society

The following information may also be helpful to you. These materials may be ordered from our toll-free number, 1-800-ACS-2345.

Americans with Disability Act: Information for People Facing Cancer

Financial Guidance for Cancer Survivors and Their Families: In Treatment (also available in Spanish)

Medical Insurance and Financial Assistance for the Cancer Patient (also available in Spanish)

What is COBRA? (also available in Spanish)

National organizations and Web sites*

In addition to the American Cancer Society, other sources of patient information include:

United States Department of Labor, Wage and Hour Division
Toll-free number: 1-866-4 US WAGE (1-866-487-9243)
TTY: 1-877-889-5627
Web site: www.dol.gov/esa/whd/fmla

For more detail, visit: www.dol.gov/dol/allcfr/ESA/Title_29/Part_825/toc.htm . This site includes subsections with pages that explain more about FMLA, including school employee rules, how it impacts state law, employer policy variations, and more.

*Inclusion on this list does not imply endorsement by the American Cancer Society

No matter who you are, we can help. Contact us anytime, day or night, for information and support. Call us at 1-800-ACS-2345 or visit www.cancer.org.

References

United States Department of Labor. Fact Sheet #28: The Family and Medical Leave Act of 1993. Available at: http://www.dol.gov/esa/regs/compliance/whd/whdfs28.htm. Accessed March 3, 2008.

United States Department of Labor. Frequently Asked Questions and Answers. Available at: http://www.dol.gov/elaws/esa/fmla/faq.asp. Accessed March 3, 2008.

United States Department of Labor. Code of Federal Regulations Pertaining to ESA. Part 825: The Family and Medical Leave Act of 1993. Available at: http://www.dol.gov/dol/allcfr/ESA/Title_29/Part_825/toc.htm . Accessed March 3, 2008.

The United States Equal Employment Opportunity Commission. The Family and Medical Leave Act, the Americans with Disabilities Act, and Title VII of the Civil Rights Act of 1964. Available at: http://www.eeoc.gov/policy/docs/fmlaada.html. Accessed March 3, 2008.

United States Office of Personnel Management. Family-Friendly Leave Policies for Federal Employees. Available at: http://www.opm.gov/oca/leave/html/levbro.htm. Accessed March 3, 2008.

Revised 3/18/08