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Family and Medical Leave Act - Unpaid Leave

  • Published: 2011-06-07 : Author: Kelly & Lemmons PA
  • Synopsis: The Family and Medical Leave Act is a federal law that permits employees to take up to 12 weeks of unpaid leave.

The Family and Medical Leave Act (FMLA) is a federal law that permits employees to take up to 12 weeks of unpaid leave.

As the name suggests, the reason for the leave must be related to family and medical issues.

Leave can be taken:

For pregnancy or medical reasons related to pregnancy or childbirth.

To care for an immediate family member (spouse, child, adopted child, parent)

For a serious medical condition


To be eligible, one must work for a covered employer and have worked for the minimum number of required hours. Not all employers are "covered employers." Private employers that employ fewer than 50 works are not covered employers and their employees are not eligible for FMLA leave.

Job Protection:

One of the primary benefits of the FMLA is the job protection it offers to an employee who uses the leave. Upon returning to work, the employee must be restored to their original job or an equivalent position. This prevents employers from demoting someone who uses the leave as "punishment."

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

The definition is intentionally somewhat vague, as Congress wanted to ensure broad coverage for employees. This means that the determination of "serious health condition" needs to be done on a case-by-case basis.

How to Use the Leave

The employee is required to provide 30 days advance notice, when possible. Obviously, if you suffered a stroke or heart attack, you cannot provide advance notice. In those cases, you are required to notify the employer as soon as possible.

You are also required to provide your employer with enough information for them to determine that your leave is an eligible leave.

An employee need not take all 12 weeks at once, but the notice requirements would apply to each occurrence and an employee may have to provide certification that the leave qualifies as FMLA leave.


If you feel you have been punished for taking FMLA leave, or if your request was unreasonably denied, speaking with an experienced employment law attorney is a good first step. They can review your facts and help determine if your rights were violated and what can be done to help.

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