Family and Medical Leave Act

The Family and Medical Leave Act (FMLA), which is intended to balance the demands of the workplace with the needs of families, became effective for most employers in August 1993. The passage of the FMLA represented a legislative reaction to dramatic changes in the U.S. workforce that had taken place over the previous 40 years. During that period, the number of female workers in the civilian labor force increased by more than 200%. In addition, the American population is aging, leading some analysts to predict that an increasing percentage of workers will have some care giving responsibility for an older family member. The number of single-parent households has also increased substantially as a result of increases in the number of unwed mothers and higher rates of separation and divorce. At the time of its passage, between 40% and 50% of the nation’s workforce was estimated to be covered by the FMLA.


Private-sector employers are covered by the FMLA if they are engaged in an industry or activity affecting commerce and if they employ 50 or more employees at a single work site or 50 or more employees at a group of work sites within a 75-mile radius for each working day during 20 weeks of the preceding or current calendar year. Contractual bargaining agreements that have arbitration clauses do not preempt claims under the FMLA. Public agencies—that is, federal and state governments, political subdivisions of the states, and private secondary and elementary schools—also are covered without regard to the number of employees.

Leave Eligibility

The major provision of the FMLA is that an eligible employee may take up to 12 weeks of unpaid leave during a 12-month period, to be used for specifically designated medical or family-related reasons. An eligible employee is an individual who has been employed for at least 12 months and has worked at least 1,250 hours during the previous 12-month period. If a husband and wife work for the same employer, only a total of 12 weeks of leave may be taken between them.

The circumstances under which the requested leave must be granted include (a) the birth of a newborn child, (b) the placement of a child with the employee for adoption or foster care, (c) the employee’s own serious health condition, or (d) the serious health condition of a member of the employee’s immediate family(spouse, son, daughter, or parent). The employer may require the employee—or the employee may elect—to substitute family leave, vacation leave, or accrued paid personal leave for part of the 12-week period. Continuation of health insurance coverage must be provided by the employer during the period of leave, and the employee is entitled to restoration of his or her original position or an equivalent position after returning from leave. Having one’s job restored after returning from leave is the predominant claim filed and litigated under the FMLA.

Serious Health Condition

A serious health condition is defined as an illness, injury, impairment, or physical or mental condition requiring inpatient care or continuing treatment by a health care provider, as well as any period of incapacity resulting from prenatal care or pregnancy. Whether a condition qualifies as a “serious” health condition is frequently litigated, and the determination is fact intensive; generalizations, therefore, are extremely speculative. For example, if the presentation is sufficiently severe, upset stomach (ulcer) or carpal tunnel syndrome may qualify as a serious health condition. On the other hand, an employee’s heart arrhythmia or high blood pressure may not qualify as a serious health condition if the employee’s doctor clears the employee for work and medical treatment can be obtained without missing work.

In one case, the termination of an employee who had been absent from work for four days to care for a child with an ear infection was not found to be in violation of the FMLA because the child’s illness was not considered a serious health condition. In contrast, in another case, a teacher’s mother who had fallen, leaving her incapacitated and unable to care for her own basic needs for several days (a condition compounded by other chronic health conditions), was considered to have suffered a serious health condition. Cosmetic or voluntary treatments that are not medically necessary may qualify if they require inpatient hospital care. Several diagnoses, none of which alone is a serious health condition but which are temporally linked, may rise to the level of a serious health condition when taken together.

The employer may require that the employee support a request for leave with certification from the health care provider of the employee, spouse, child, or parent on whose behalf leave is being requested. The employer also may require an opinion from a second provider, at the employer’s expense. Conflicting opinions may be resolved—again, at the employer’s expense—by the opinion of a third health care provider, jointly approved by the employee and employer. The employer may request recertification under limited circumstances.

Timing of Requested Leave

Under some circumstances, leave may be taken intermittently, in separate blocks of time from one hour to several days for medical appointments or treatment. Leave may also be taken on a reduced leave schedule, that is, a reduction in the number of working hours in a workday or workweek—for example, from full-time to part-time—if the employee and the employer agree. If intermittent leave or a reduced leave schedule is requested by the employee because of his or her own health condition or that of a family member, the employer may require the temporary transfer of the employee to an alternative position with equivalent benefits and pay. This option is available only if the need for intermittent leave is foreseeable. The employee is required give the employer 30 days or more notice before the requested leave is to begin, if the need for the leave is known ahead of time. The employee is not required to ask specifically for FMLA benefits. If the employer has notice that the employee might qualify, the employer has a duty to inform the employee that FMLA coverage might apply. Implementing regulations require the employer to provide information on FMLA rights and responsibilities to the employee, either in an employee handbook (if one is provided) or other written guidance.


For federal employees, the FMLA is enforced by the Office of Personnel Management. For private employers, the FMLA is enforced by the Wage and Hour Division of the U.S. Department of Labor. The administrative complaint procedure established by the Labor Department is not mandatory. Either the Labor Department or private individuals may bring an action in federal court for alleged FMLA violations. Generally, remedies are limited to lost wages (which may be doubled if it is found the employer did not act in good faith) and equitable relief, such as reinstatement or promotion. In a 2003 decision, the U.S. Supreme Court held that state government sovereign immunity provided by the Eleventh Amendment had been properly abrogated by Congress when the FMLA was enacted. The Court held that a history of gender-based discrimination was sufficient to survive a heightened standard of review. As a result, public employers may now be sued by employees for monetary damages, as well as for equitable or injunctive relief.

Overlap with the Americans with Disabilities Act

In some respects, the FMLA expands the rights provided under the Americans With Disabilities Act (ADA). Leave for medical conditions may be given as a reasonable accommodation under the ADA, although such accommodation is limited in several ways. First, under the ADA, an employee must be able to perform the “essential functions of the job” in order to be entitled to leave as a reasonable accommodation; this is not a requirement under the FMLA. Second, under the ADA, an individual must be disabled within the meaning of the statute; the Supreme Court has addressed the question of what qualifies as a disability. On the other hand, under the FMLA, the employee need only show the presence of a serious health condition, a less onerous burden. The Supreme Court has not yet had occasion to interpret the FMLA definition of serious health condition. Third, under the ADA, an employer may assert undue hardship in denying a requested accommodation and is not obligated to provide the employee with his or her preferred accommodation. Finally, if the employee qualifies for a reasonable accommodation of leave under the ADA, the time limitations of the FMLA may not apply, even though the leave is designated as FMLA leave. Problems arise for the employer when the employee does not specifically designate a request for leave as FMLA leave or as an accommodation under the ADA. Under such conditions, the employer must review all requests for leave under both the FMLA and the ADA.


  1. King, N. J. (1999). The family medical leave act: An ethical model for human resource policies and decisions. Marquette Law Review, 83, 321-366.

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