The Family Medical Leave Act, also known as “FMLA,” is a law benefiting workers across the Country. This law provides employees with legal protection to take a temporary leave of absence from work in order to care for a family member with a serious medical condition, or to care for their own pregnancy, illness, or health condition.
Most California employees have heard of FMLA, but what exactly does it do? Do you qualify for FMLA protection? If so, what rights does it give you? And what happens if your employer violates those rights? Should you call a lawyer? This page was written by Branigan Robertson, an employment lawyer in California.
Here are shortcuts to specific topics below:
- FMLA in a nutshell
- Do I qualify for FMLA protection?
- Does FMLA apply to my company?
- How much time can I take off?
- Do I need to get a doctor’s note?
- Do I get paid during an FMLA leave of absence?
- Do I need to give advanced notice?
- What should I do if my employer denies my FMLA?
- When should I call a lawyer?
- How much are FMLA cases worth?
- What is the deadline to file an FMLA case?
- How much does a lawyer cost?
If you would rather watch this video on YouTube, click here.
FMLA Law in a Nutshell
Before we jump in, please note! California has its own version of FMLA called the California Family Rights Act (CFRA). If you are working in California, the CFRA is probably the law that applies to you. The CFRA is very similar to the FMLA, but better in many ways. So, if you are just starting your research, we recommend reading our CFRA page first. If it doesn’t apply to you, then come back to this one.
Historically, when an employee got sick or pregnant and had to miss substantial amounts of work, corporations would simply replace the worker with someone else. Through no fault of their own, that would put hard-working people out of a job. In 1993, the U.S. Congress addressed this issue by passing the Family Medical Leave Act.
FMLA provides employees with job-protected time off of work. If you qualify, this means your employer must hold your job open for your return. This gives you some time away from the job to heal from your own serious health condition, or to care for a family member with a serious medical condition.
If the company is large enough and you’ve worked for the company for longer than a year, the law permits you to take a total of 12-weeks of leave. You don’t have to take all 12 weeks, you can take a few weeks or only a few days. Generally, this time away from work is unpaid. Keep reading to fully understand the important nuances of these provisions.
Do I Qualify for FMLA Protection?
Just because you want to take a leave of absence doesn’t mean FMLA protects you. You must qualify for protection.
First of all, you must have worked for that employer for at least one year before your leave of absence starts. During that year, you must have actually worked for at least 1,250 hours. That comes out to be just over 4.8 hours per workday. Vacations, sick time, and holidays do not count toward the 1,250 mark.1
Second, according to the U.S. Department of Labor, you must be requesting leave for one of the following reasons:
- The birth and care of a newborn child,
- To care for an immediate family member (i.e., 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,
- To accept the placement in your home of an adopted child or foster child,2
- Military Families – As you or your family member prepares to deploy, you can take time off to make different day care arrangements for the military member’s children or to attend official military ceremonies; or
- Military Families – To care for a family member who was seriously injured while performing military service.3
Serious Health Condition
What is a “serious health condition” according to FMLA? This is far more complicated than it may seem at first blush. Generally, unless extraordinary circumstances apply, things like the common cold, ear aches, upset stomach, or flu do not qualify.
According to an opinion letter from the DOL, the law does not cover:
- Short-term conditions in which treatment and recovery are brief,
- Minor illnesses which only last a few days, or
- Surgical procedures that do not involve hospitalization and have a quick recovery period.
So, what exactly is a “serious health condition” under FMLA? The statute specifically says:
The term “serious health condition” means an illness, injury, impairment, or physical or mental condition that involves (A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider.429 USC § 2611(11)
This definition obviously covers situations where the employee must be absent from work on a recurring basis or for more than a few days for treatment or recovery. For someone to be admitted to inpatient care at a hospital, it means they are very ill or have serious physical trauma. That is fairly straightforward.
However, what does “continuing treatment by a health care provider” mean?
Generally, this means you are required to miss work, school, or a routine daily activity because of the illness, injury, impairment or condition and you need treatment by a health care provider. This can involve the following situations:
- You are pregnant or need prenatal care.
- You have a chronic serious health condition such as asthma, diabetes, or epilepsy.
- You have permanent or long-term incapacity due to untreatable conditions such as Alzheimer’s, stroke, or terminal diseases.
- You require absences for more than three consecutive days for multiple treatments, including recovery time.
However, things like the flu, migraines, and other thing can qualify as a serious health condition. For this to happen, the employee will need to have done the following:
- Visited a doctor on 2 separate occasions AND have more than three continuous days of absences due to incapacity,
- Have visited the doctor within 7 days of the condition arising, in order to establish that the employee has a serious condition,
- The 2 visits to the doctor should be within a 30-day window, and
- The second visit must be determined as necessary by the doctor, not the employee. The 2nd visit should also occur during the 30-day window.
Does FMLA Apply to My Company?
FMLA does not apply to all employers.
If you work for a private company, your employer must have 50 or more employees within a 75-mile radius of your worksite. To make the 50-employee mark, the employer must have had 50 or more employees on the payroll for more than 20 weeks in the last twelve months.
However, please note! Starting in 2020, CFRA has a lower employee requirement (20 employees, not 50). So, if your California company has more than 20 employees, CFRA might protect you even though FMLA does not.
What about public employers? FMLA applies to all federal, state, and city employers. It also applies to public or private elementary or secondary schools with no minimum employee count requirement.
How Much Time Can I Take Off?
An eligible employee is allowed to take 12 workweeks of leave in any 12-month period. You don’t have to use all 12 weeks, you can take a few weeks or only a few days, and save the rest for unexpected future emergencies.
What about Intermittent Leave?
Intermittent leave is when an employee takes their leave of absence in small pieces. For example, you take a week off, then go back to work for two weeks, then you take another week off. Intermittent leave can also be for as small as a few hours in the morning, or leaving work an hour early in the afternoon.
Can you use FMLA for intermittent leave? Unless you and the employer agree, FMLA leave cannot be taken intermittently if your leave is for the birth and care of a newborn or for the adoption of a child or foster child.5
However, FMLA does permit you to take intermittent leave to deal with your own serious health condition, or to care for an immediate family member (child, spouse, parent) with a serious health condition so long as it is “medically necessary.”6
Do I Need to Get a Doctor’s Note?
Yes, the law says that “an employer may require” that you get a doctor’s note for your leave of absence. Even if your employer doesn’t require you to furnish one, most lawyers recommend that you do anyway.
But your doctor’s note must meet specific legal requirements…. So, pay close attention! Make sure your physician puts the required information in your doctor’s note!
If your leave of absence is to care for your own medical condition, or the serious health condition of a spouse, child, or parent, your employer is absolutely allowed to request a doctor’s note. The law requires that you provide this certification in a timely fashion.7
Your doctor’s note must include the following things:
- The date in which the serious health condition started,
- How long the doctor expects the condition to last, and
- The “appropriate medical facts within the knowledge of the health care provider regarding the condition.”8
Additionally, if your leave of absence is needed to care for your son, daughter, husband, wife, mother, or father, the doctor’s note must give a “statement” that you are “needed” to care for the person and “an estimate of the amount of time” that you’ll be needed to care for the person.9
If your leave of absence is for your own serious health condition, on the other hand, the doctor’s note must state that you are “unable to perform the functions” of your job.10
Do you need a doctor’s note for intermittent leave under FMLA?
Absolutely. The law says that, in the case for intermittent leave or leave on a reduced work schedule for planned medical treatment, your doctor’s note must state the dates when the treatment is expected to be given and the duration of the treatment.11
If the leave is for your own serious health condition, the doctor’s note must include a “statement of the medical necessity for the intermittent leave or leave on a reduced schedule, and the expected duration of the intermittent leave….”12
On the other hand, if the leave is to care for a family member, the physician’s certification must state that the intermittent leave is “necessary for the care of the son, daughter, parent, or spouse who has a serious health condition, or will assist in their recovery, and the expected duration and schedule of the intermittent leave or reduced leave schedule.”13
Finally, FMLA allows your employer to require that you obtain subsequent re-certifications from your doctor on a reasonable basis.
What if Your Employer Doubts Your Doctor’s Note?
If the employer has reason to doubt the validity of your doctor’s note, the company may require that you obtain the opinion of a “second health care provider designated or approved by the employer….”14 If that doctor’s opinion conflicts with the first one, the employer may require, at the expense of the employer, that the employee obtain a third opinion. This third opinion will be considered final and binding.15
Do I Get Paid During an FMLA Leave of Absence?
Generally, employees do not get paid when they take FMLA. However, if your employer has a benefits package that pays employees for their time off, or a portion of their time off, then you may get paid something.
What if you have accrued Paid Time Off (PTO)? You are allowed to use, and an employer is allowed to require, that you use your accrued vacation pay, sick days, or other paid time off during your FMLA leave of absence. Unfortunately, this does delay the start of your 12-weeks of leave until your PTO ends.16
For example, let’s say you have 4-weeks of PTO accrued with your company. The company can require that you use your PTO time while you go on leave. After the paid 4 weeks, you would have 8 weeks of unpaid time left of FMLA.
What About Health Insurance Benefits?
If you have health insurance benefits through your employer, the company is required to maintain your health coverage for the duration of your leave of absence at the level the coverage would have been provided had you continued on working like a normal employee for the duration of such leave.17
But, if you fail to return to work after your leave of absence, the employer may recover the premium that the company paid for that health coverage during your leave of absence. The exception to this is that the company can’t demand that money back from you if:
- Your serious health condition is continuing and you can’t perform the job, or
- “Other circumstances beyond the control of the employee.”18
Obviously, if this is the case, you will have to give the employer a doctor’s note proving that the health condition is ongoing, you can’t perform the job duties, or demonstrate other circumstances beyond your control.
Do I Need to Give Advanced Notice That I’ll be Going on a Leave of Absence?
If possible, you need to provide your employer with at least 30 days’ notice that you will be going on a leave of absence. If you are pregnant, then you should give your employer not less than 30 days’ notice before the date your maternity leave is set to begin.19
If you or an immediate family member have a medical emergency, obviously, you may be incapable of giving 30 days’ notice. The law accounts for this. But give as much notice to your employer as you can.
If you have a planned medical treatment, the employee “shall make a reasonable effort to schedule the treatment so as not” to unduly disrupt the operations of the company. Of course, this is subject to the approval of your doctor, or the doctor caring for your child, spouse, or parent.20
What Should I Do if My Employer Denies my FMLA?
It is unlawful for an employer to deny your FMLA if you qualify. Specifically, the law says:
“(1) It shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided” by the FMLA laws. (2) It shall be unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful” by the FMLA laws.2129 USC 2615(a)
If your employer denies your FMLA or discriminates against you for taking FMLA, you can file a lawsuit to recover monetary damages. However, usually it not worthwhile to file a lawsuit unless the employer terminates you.
If Your Leave was Denied but You Still Have Your Job
If your employer denies your leave but you are still employed, you have two options:
- Complain in writing to the appropriate authority at your company. Make sure you make this complaint properly (watch Mr. Robertson’s YouTube video on how to do this here). Include your doctor’s note and be respectful and helpful. Do not threaten the company. Make sure you identify that you need to take the leave of absence because you need to care for yourself, son, husband, or mother who has a serious health condition.
- If your company ignores your complaint or denies your leave again, contact an employment lawyer. You may not have requested it properly. If your complaint is unsuccessful, and you absolutely must take your leave, the lawyer may advise you to send a written letter with a doctor’s note and go on your leave anyway. Obviously, this depends on your specific circumstances. Likely, your serious health condition, or the serious health condition of your child, spouse, or parent takes priority over your job.
- Should you Quit Your Job? No, generally quitting is not a good option if your leave was denied. That can hurt your legal case in the long run. Lawyers like Mr. Robertson almost never recommend that someone quit their job.
If your employer refuses to let you return, then you can file a lawsuit (more on this below). The law provides you with multiple remedies.
If Your Leave was Denied and You Were Fired
What should you do if you got fired after requesting FMLA? Or what if you went on leave and your employer refuses to let you return to work? Generally, this is the correct time to take legal action and get a consultation from an experienced employment lawyer. Contact Mr. Robertson here.
When Should I Call a Lawyer?
You Were Terminated – If you were fired, then you should absolutely call a lawyer as soon as possible.
Your Leave Request was Denied – If you have requested a leave of absence and your employer denied your request, then you should call an attorney.
You Are Not Sure if You’re Still Employed – Sometimes the situation is not clear. A lot of people go out on FMLA during an emergency, and then the employer stops communicating with them. What if you’re not sure of your employment status? Generally, this would be a good time to call a lawyer. The lawyer may not be able to help you at this point, but it won’t hurt to pick up the phone and make the call.
If You’re Still Employed – Generally, if you are still employed you want to try to do everything possible to keep your job. Hiring a lawyer and blasting your employer with a legal letter at this point is sometimes counterproductive (you paint a giant target on your back). But, again, it can’t hurt to pick up the phone and call a lawyer to see what they think of your situation.
How Much Are FMLA Cases Worth?
If you can find a good attorney to take your case, you should pursue it. Good contingency lawyers like Mr. Robertson do not take cases unless they are confident they can get a significant settlement for the client.
If you would rather watch this video on YouTube, click here.
O.K…. so how much are they worth?
It depends. To understand how much your case might be worth you need to understand how remedies work in the law. You may be able to collect the following:
- Lost Wages – You can win the money you lost when the company terminated you because you requested or took a leave of absence. This includes the lost wages, benefits, salary, commissions, bonuses, etc. If you were making $105,000 per year and then you were fired unlawfully, then you were unemployed for a full year before finding another job making the same amount of money, then your lost wages would be $105,000.
- Liquidated Damages – In FMLA cases, you can win an amount equal to your award of lost wages. In our hypothetical above, if you won, $105,000 in lost wages in trial, the court may award you another $105,000 on top. These penalty-type damages are called liquidated damages. However, the court may omit to award these if it believes the company acted in good faith and had reasonable grounds for believing it was not violating FMLA.22
- Emotional Distress – In FMLA cases you cannot win emotional distress damages. But you can in CFRA lawsuits. This is another reason why CFRA is better for California workers.
- Punitive Damages – If the company acted with malice, oppression, or fraud in its conduct, you may be able to win punitive damages. These are damages to punish the company for acting horribly. However, under a pure FMLA case, you cannot win punitive damages. Luckily, in some states like CA, you can win punitive damages under separate laws. Obviously, even if you can win them, punitive damages are very hard to win and they are rare. But if you have a good case, these can be extremely large.
- Attorney’s Fees – While most lawyers like Mr. Robertson work on a contingency fee, the law permits plaintiffs to recover attorney’s fees on top of other types of damages in leave of absence cases like CFRA. This directly benefits you because it increases the settlement value of your case (most cases settle).
It’s almost impossible for a victim to accurately estimate how much their case might be worth. If you have a case and want to know more about it, contact our office for a free consultation.
What is the Deadline to File an FMLA Case?
How long do you have to file an FMLA case? The law says that you must bring your lawsuit “not later than two years” after the violation of law occurred.23 However, if you can prove the adverse action against your FMLA rights was “willful,” then a lawsuit may be brought within 3 years after the violation occurred.24
This time limit is called a statute of limitations. Every area of the law has a deadline like this. If you don’t bring your lawsuit before the statute of limitations has lapsed, you will forever lose your right to bring the lawsuit.
While two or three years may seem like a long time, it’s not when it comes to California’s legal system. Mr. Robertson has had to turn down many good cases because the statute of limitations. We highly recommend that you call a lawyer sooner rather than later.
How Much Does a Lawyer Cost?
Employment lawyers like Mr. Robertson typically represent leave of absence cases on a contingency fee. That means the lawyer gets paid a percentage of the total settlement amount. Our clients typically do not pay us any money out of pocket. The initial consultation is free and case evaluation is free.
The contingency fee structure is ideal for FMLA cases because most people who just got fired don’t have extra money to spend on legal fees. The size of the lawyer’s total fee depends on the percentage that the lawyer charges and how much your case settles for. If you want to know how much Mr. Robertson charges, give our office a call for a free consultation.
- 29 USC § 2611(4)
- 29 USC § 2612(a)(1)
- The Department of Labor on Military Family Leave
- 29 USC § 2611(11)
- 29 USC § 2612(b)
- 29 USC § 2612(b)
- 29 USC § 2613(a)
- 29 USC § 2613(b)(1)-(3)
- 29 USC § 2613(b)(4)(A)
- 29 USC § 2613(b)(4)(B)
- 29 USC § 2613(b)(5)
- 29 USC § 2613(b)(6)
- 29 USC § 2613(b)(7)
- 29 USC § 2613(c)(1)
- 29 USC § 2613(d)
- 29 USC § 2612(d)(2)
- 29 USC § 2614(c)(1)
- 29 USC § 2614(c)(2)
- 29 USC § 2612(e)
- 29 USC § 2612(e)(2)
- 29 USC § 2615(a)
- 29 USC § 2617(a)(1)(A)(iii)
- 29 USC § 2617(c)(1)
- 29 USC § 2617(c)(2)