The Family and Medical Leave Act (FMLA) was enacted in 1993. This federal law allows eligible employees of covered employers to take up to 12 weeks of unpaid, job-protected leave in a 12-month period for specified family and medical reasons. The Act is administered and enforced by the U.S. Labor Department’s Wage and Hour Division.

The FMLA requires covered employers to give an eligible employee up to a total of 12 work weeks of unpaid leave during any 12-month period for the birth or adoption of a child, to care for an immediate family member with a serious health condition, if the employee has a serious health condition that requires time away from work, or for certain issues affecting members of the armed services and their families. After the leave time is done, the employee is entitled to return to their original position or to an equivalent job with similar benefits, working conditions, and pay.

Private sector employers who employ 50 or more employees in 20 or more work weeks in the current or preceding year are covered by the FMLA. All public agencies are covered, regardless of the number of employees. This includes federal, state, and local employers. It also includes schools, both public and private.

To be eligible for unpaid leave under the FMLA, an employee must have worked for the employer for at least 12 months and worked for at least 1,250 hours during the previous 12 months. (1,250 hours is about 60% of full-time) You are only an eligible employee if your employer has 50 or more employees within 75 miles of your worksite.

There are a number of circumstances for which you may take unpaid leave under the FMLA. Here is a list, followed by some special definitions and rules:

• Birth of your child, and care for your newborn child
• Adoption of a child
• Placement with you of a child for foster care or potential adoption
• To care for your spouse, son, daughter, or parent, if they have a serious health condition
• Your own serious health condition, which makes you unable to perform your job duties
• Certain circumstances that arise from military service of your spouse, son, daughter, or parent (see the separate section on military-related leave near the end of this handout)

If you are an eligible employee working for a covered employer, you are entitled to up to 12 weeks of unpaid leave in a 12-month period for any of the circumstances listed.

You are also entitled to the following:

• Return to your job, or an equivalent job
• Pay equivalent to what you were getting before your leave
• Equivalent benefits to what you had been getting
• Continued coverage, while you’re on leave, under the employer’s group health insurance plan on the same terms as if you were continuing to work. You will need to continue to pay whatever share of the premiums you are required to pay under the plan. If the employer changes health insurance plans while you’re out on leave, you’re entitled to coverage under the new plan, just as if you were actively on the job.

If the reason you need to take leave is foreseeable, you’re required to give at least 30 days advance notice to your employer. This would include such things as scheduled (non-emergency) surgery, adoption, or birth of a child without emergencies or unpredictable complications. If the need is foreseeable, but is less than 30 days away, then you’re required to give notice as soon as practical under the circumstances.

Your employer can require proof from a medical provider that you have a need to take the leave for yourself or a family member. If you don’t give proper advance notice, as explained earlier, or if you don’t provide proof from a provider, then the employer can delay the start of your leave until you get it.

Your employer can ask that you get a second (and third) opinion on the medical diagnosis in order to determine if you really are entitled to FMLA leave. Your employer needs to pay for those opinions if they want them.

Your employer can require you to provide proof from your medical provider that you are fit to return to your job when your leave time is complete, as a condition of restoring you to your position.

In addition to the things discussed elsewhere in this handout, an employer who is covered by the FMLA is required to post a notice at the worksite, explaining the rights and responsibilities under the Act. The employer must include information in employee handbooks or other written materials about employee benefits. The employer may fulfill this obligation by giving each employee a copy of a notice concerning FMLA at the time of hiring.

You can call Legal Aid of West Virginia, a private attorney, or the U.S. Department of Labor. You can learn more about the FMLA, and find contact information on the website for the U.S. Labor Department.