How to Apply for FMLA Leave for a Family or Medical Reason

Check the employer coverage and employee eligibility rules first

The federal Family and Medical Leave Act gives eligible employees of covered employers the right to take unpaid, job-protected leave for specified family and medical reasons.

For most employees, federal FMLA eligibility requires all of the following:

• you work for a covered employer;
• you have worked for that employer for at least 12 months;
• you have at least 1,250 hours of service during the 12 months immediately before the leave begins; and
• you work at a location where the employer has at least 50 employees within 75 miles.

The 12 months of employment generally do not have to be consecutive, although special rules apply after long breaks in service.

Private employers public agencies and schools follow different coverage rules

A private-sector employer is generally covered when it employs 50 or more employees for 20 or more workweeks in the current or previous calendar year.

Public agencies, including federal, state and local government employers, are covered regardless of workforce size. Public and private elementary and secondary schools are also covered regardless of employee count.

Employee eligibility requirements still matter even when the employer itself is covered.

Federal law protects specific family medical and military-family absences

An eligible employee can generally take up to 12 workweeks of FMLA leave in a 12-month period for qualifying reasons that include:

• the birth of a child and bonding with the newborn during the first year after birth;
• placement of a child for adoption or foster care and bonding during the first year after placement;
• caring for a spouse, child or parent with a serious health condition;
• the employee's own serious health condition when it makes the employee unable to perform the functions of the job; and
• certain qualifying exigencies related to a spouse, son, daughter or parent's covered military service.

An eligible employee may receive up to 26 workweeks in a single 12-month period to care for a covered servicemember with a qualifying serious injury or illness when the relationship requirements are met.

You usually do not need a special federal application to start the process

You request FMLA leave from your employer, not by filing a leave application with the Department of Labor.

The first time you need leave for a particular FMLA reason, you do not have to specifically say "FMLA." You do, however, need to give enough information for the employer to understand that the absence may be protected.

For example, simply saying that a family member is "sick" may not give enough information. Explaining that a spouse has been hospitalized overnight and that you need several days to provide care can give the employer facts indicating that FMLA may apply.

Give at least 30 days when you know about the leave in advance

When the need for leave is foreseeable, such as a planned medical procedure, expected birth or placement for adoption or foster care, you generally must provide at least 30 days' advance notice when doing so is possible and practical.

If you learn about the need less than 30 days before the leave starts, or circumstances change, give notice as soon as practicable.

For planned medical treatment, employees must make a reasonable effort to schedule treatment so it does not unduly disrupt the employer's operations, subject to the health care provider's approval.

Tell the employer as soon as practicable under the circumstances

When the need for leave is not foreseeable, provide notice as soon as practicable considering the circumstances.

Employees generally must comply with the employer's usual and customary call-in and leave-request procedures unless unusual circumstances prevent compliance.

If you have previously received FMLA leave for the same condition, you should specifically refer to the qualifying reason or the prior FMLA leave so the employer can recognize the connection.

Eligibility and rights notices generally come within five business days

Once you request leave that may qualify, or the employer otherwise learns that an absence may be FMLA-qualifying, the employer generally must provide an eligibility notice within 5 business days.

If you are not eligible, the employer must provide at least one reason why.

If you are eligible, the employer must also provide a written rights and responsibilities notice explaining matters such as:

• the employer's FMLA leave year;
• whether certification will be required;
• how paid leave may interact with FMLA;
• health-plan premium obligations;
• whether a fitness-for-duty certification will be required; and
• your restoration rights.

A health care provider may need to verify a serious health condition

For leave involving your own serious health condition or a qualifying family member's serious health condition, the employer may require a medical certification.

Department of Labor optional forms include WH-380-E for an employee's serious health condition and WH-380-F for a family member's serious health condition.

The employer does not have to use those exact forms, and a health care provider may provide the required information in another format.

Completed certification documents are provided to the employer, not sent to the Department of Labor.

Employees generally receive at least 15 calendar days

If the employer requests certification, you normally must be given at least 15 calendar days to return a complete and sufficient certification.

If you make diligent, good-faith efforts but cannot meet the deadline for reasons outside your control, such as the health care provider being unavailable, the employer must provide additional time appropriate to the circumstances.

If you simply fail to provide certification by the deadline without a qualifying reason, FMLA protection can be denied for leave after the certification deadline until a complete and sufficient certification is provided.

FMLA certification requires enough medical facts but not unrestricted records

You are not required to provide your full medical records to obtain FMLA protection.

The employer may require a complete and sufficient medical certification containing enough medical facts to establish that the leave qualifies.

You also are not required to sign a broad medical release or waiver as part of the certification process.

The employer must identify what information is missing

If the employer cannot determine whether the leave qualifies because a certification is incomplete or insufficient, it must tell you in writing what additional information is needed.

You then have an opportunity under the FMLA rules to cure the deficiency before the employer denies protection on that basis.

Respond promptly and ask the health care provider to address the specific missing information rather than preparing unrelated medical records.

A written designation normally follows within five business days

Once the employer has enough information to determine whether the absence qualifies, it generally must give you a written designation notice within 5 business days, absent extenuating circumstances.

The designation notice tells you whether the absence will count against your FMLA entitlement and, when applicable, whether paid leave will run concurrently or a fitness-for-duty certification will be required.

The Department of Labor provides optional Form WH-382 for employers to use as the designation notice.

Most qualifying reasons provide up to twelve workweeks per leave year

For most qualifying reasons, eligible employees can take up to 12 workweeks of FMLA leave during the employer's applicable 12-month leave year.

Employers may use one of the federally permitted methods for establishing that 12-month period, so ask the employer which method applies.

Military caregiver leave follows a separate single-12-month-period rule and can provide up to 26 workweeks.

Medical necessity can allow leave in separate blocks of time

FMLA leave does not always have to be taken as one continuous absence.

When medically necessary for the employee's serious health condition, a qualifying family member's serious health condition or military caregiver leave, eligible employees may take leave intermittently or work a reduced schedule.

Intermittent or reduced-schedule leave is also available for qualifying military exigencies.

For bonding with a newborn or newly placed child, intermittent or reduced-schedule leave generally requires the employer's agreement.

Federal FMLA itself is unpaid but paid leave can run at the same time

The federal FMLA guarantees unpaid job-protected leave.

However, an employee may use qualifying employer-provided paid vacation, sick, family or other paid leave at the same time as FMLA leave when the employer's paid-leave policy permits it.

An employer may also require available paid leave to run concurrently with FMLA leave when the federal substitution rules and the employer's paid-leave policy are satisfied.

Some states provide additional paid family or medical leave rights, so federal FMLA is not necessarily the only protection available.

Group health coverage continues on the same terms as if you were working

If you participate in an employer's group health plan, the employer must continue that coverage during qualifying FMLA leave on the same terms and conditions that would have applied if you had continued working.

You generally must continue paying your normal employee share of the premiums.

If benefits change for the workforce while you are on leave, you must receive the same opportunity to make elections that similarly situated employees receive.

You generally return to the same or a virtually identical position

At the end of FMLA leave, an employee generally has the right to return to the same job or a virtually identical job with equivalent pay, benefits and other terms and conditions of employment.

An employer may not punish an employee for requesting or using protected FMLA leave by assigning attendance points, denying a promotion because of protected leave, reducing shifts or otherwise interfering with FMLA rights.

Narrow exceptions can apply, including special rules involving certain highly compensated "key employees" and situations where the employee would not have remained employed for reasons unrelated to the leave.

Your employer must give advance notice of a return-to-work certification requirement

If your FMLA leave was for your own serious health condition, an employer may require a fitness-for-duty certification before you return when the employer has a uniformly applied policy or practice requiring similar employees with similar health conditions to provide such certification.

The employer must notify you of the requirement in the FMLA designation notice.

If the certification must specifically address your ability to perform essential job functions, the employer must also provide the appropriate notice of that requirement.

There is no federal application fee

There is no government filing fee for requesting FMLA leave.

You request the leave from your employer. You do not pay the Department of Labor or submit a paid federal application.

If the employer properly requests a medical certification or fitness-for-duty certification, Department of Labor guidance states that the employee is generally responsible for any cost charged to obtain it.

The Wage and Hour Division enforces FMLA for most employees

The FMLA prohibits an employer from interfering with, restraining or denying the exercise or attempted exercise of FMLA rights. It also prohibits retaliation for requesting or using protected leave.

The Department of Labor's Wage and Hour Division administers and enforces the FMLA for most covered employees. Workers who believe their rights were violated may contact WHD and may have the option to file a private lawsuit, subject to applicable law.

Most federal employees and certain congressional employees fall under FMLA systems administered by the U.S. Office of Personnel Management or Congress rather than WHD's ordinary enforcement jurisdiction.

Use whichever applicable law gives you greater protection

Some states have their own family and medical leave laws, paid-leave programs or broader eligibility rules.

The federal FMLA does not cancel more protective state rights. The Department of Labor states that employees have the right to benefit from all laws that apply.

Check your state labor agency and employer policies in addition to federal FMLA requirements.

Avoid notice certification and eligibility problems

• Waiting until the last moment for planned leave: give 30 days' notice when the need is foreseeable and that much notice is practical.
• Giving too little information: you do not have to reveal a diagnosis, but the employer needs enough facts to recognize a potentially FMLA-qualifying reason.
• Ignoring normal call-in procedures: follow usual workplace notice rules unless unusual circumstances prevent it.
• Missing the certification deadline: employees generally receive at least 15 calendar days but should contact the employer immediately if a good-faith delay is unavoidable.
• Sending DOL certification forms to the Department of Labor: completed certification is returned to the employee for submission to the employer.
• Assuming FMLA is automatically paid: federal FMLA is unpaid, although employer paid leave or state benefits may run concurrently.
• Assuming every employee of a covered company qualifies: the employee-specific 12-month, 1,250-hour and worksite requirements generally still apply.
• Ignoring health-premium obligations: you usually must continue paying your normal employee share during leave.
• Assuming bonding leave can always be intermittent: intermittent bonding leave generally requires the employer's agreement.

Notify the employer early and respond quickly to every required notice

Start by confirming that your employer is covered and that you meet the basic employee eligibility rules. Then tell the employer as soon as possible that you need leave for a potentially qualifying family or medical reason.

For foreseeable leave, protect the 30-day notice rule. If certification is requested, protect the 15-calendar-day certification deadline. Review the employer's eligibility and designation notices and keep copies of all paperwork.

Once properly designated, FMLA provides job protection, continued group health-plan coverage on the same terms and the right to return to the same or a virtually identical position, subject to the law's limited exceptions.