Protecting Workers When They or Their Family are Sick

Many workers are fired for missing work. Some bosses use attendance policies that fire workers after a number of absences for any reason. Under FMLA, most workers have a right to take time off when they or a family member has a serious illness -- without it counting against them.

Short-term absences are often not classified as FMLA, when they should be. Getting those absences classified as FMLA can help later on if you have absences which aren't covered by FMLA.

Some states have laws which give different rights to workers to take time off when they can't work or need to take care of a family member. If you're not covered by the federal FMLA, you may have rights under your state's law. If you are covered by federal FMLA and your state's law, it may give you extra rights. Check your state's laws.

Basics for workers who are covered by FMLA:

  • You have to ask for FMLA at the time you are taking time off. You have to tell your employer in advance – but if you don’t know ahead of time, tell them as soon as you can.
  • If you, or an immediate member of your family, has a serious medical condition, you must be given up to 12 weeks of unpaid leave.
  • You can take the leave a little at a time (for example, to take your wife to the doctor after her heart attack, to get radiation treatments once a week, or for your child’s chronic asthma attacks).
  • The company has to tell you about your FMLA rights if you explain that you need time off for a serious medical condition (but you didn't mention FMLA). If you got into trouble for missing time because you didn’t know that you could apply for FMLA, you may still be protected under FMLA.
  • Your health insurance (including family insurance) continues while you are on FMLA leave. You should not pay any more than you usually do. If you do not return from FMLA leave, you may be asked to pay back what your boss paid for your health insurance during your leave.
  • Your employer can make you use your vacation or sick time during your leave.
  • When you return to work after your leave, you should be put in an equivalent job (similar pay, benefits, schedule or shift, skill level, duties, responsibilities, effort, authority, and other terms and conditions of employment).

FMLA lets workers take up to 12 workweeks of unpaid leave:

  • When the worker can't work because of a serious health condition
  • To care for an immediate family member with a serious health condition. Caring for a person includes bathing, feeding, transporting to the doctor, or giving support to a family member (like staying with them while they're in the hospital or to arrange their care). Immediate family members are:
    • husband/wife (including common-law marriages)
    • child (usually under 18)
      • if you are “standing in for the parent” – if a child lives with you and you are responsible for them
      • gay and lesbian workers can take time off to care for their partners' child (you may have heard that gay and lesbian workers couldn't take this time off, but the rule has changed)
      • if your child is disabled (unable to care for themselves), you can take time off when they are over 18
      • if your child is in the military, you can take time off when they are over 18.
    • parent (or the person who raised you when you were a child, if that person is different that your parents) -- but not your mother in-law or father in-law
  • For the birth and care of a newborn child
    • mothers can take FMLA when they can't work during their pregnancy, after birth, and to care for the baby (you may have other rights and protections for pregnancy and maternity)
    • fathers can use FMLA to take care of the baby or his wife
    • gay and lesbian workers can take time off for their partners' new child
    • your boss doesn't have to let you take intermittent time off to care for a newborn (they can make you take the time in one 12-week chunk, but they can agree to more, smaller amounts of time or shorter hours, if they want)
  • For the placement of a child through adoption or foster care and to care for the new child. Your boss doesn't have to let you take intermittent time off to care for a newly placed child (they can make you take the time in one 12-week chunk, but they can agree to more, smaller amounts of time or shorter hours, if they want).
  • To care for a member of the military – there are additional rights if a member of your family is called up for active duty or is injured in the line of duty. Please see "FMLA Military" in the Resource Box on this page.

A serious medical condition (physical or mental) is:

  • Anything which makes patients stay in the hospital, nursing home, or hospice overnight and is followed by some time when they can't do normal activities or when they need follow-up treatment
  • A chronic condition which needs periodic doctor visits
    • Periodic visits mean at least 2 visits each year (some bosses require more frequent doctors’ notes)
    • Chronic conditions include things like asthma, multiple sclerosis, or migraines
    • With chronic conditions (yours or your family member's), you may need to take occasional time off when the condition flares up. You don’t need a separate doctor’s note every time you miss time (just a note that you need time off from time-to-time).
  • A condition which makes the patient unable to do normal daily activities for three days in a row and needs one visit with a health care professional and continuing treatment (such as prescription medication or physical therapy) or two visits to a health care professional
    • the 3 days in a row when you or your family member is unable to do normal activities (like going to work or school) counts – whether or not they are missed work days
    • the first visit to a health care professional must be within 7 days of when you got sick and, if there’s a second visit, within 30 days
  • Multiple treatments for a condition that would result in more than 3 days of incapacity if it was left untreated (like cancer treatment or dialysis)
  • When you can’t work because of pregnancy or prenatal care.
    • Some conditions (like morning sickness) don’t require doctors’ notes for each absence.

To be eligible for unpaid leave under the FMLA:

  • You have worked for your employer for a total of 12 months, AND
    • if you worked for the company in the last 7 years and returned, the old work-time is counted
    • if you worked for the company and then were in active military service, your old work-time is counted back for 7 years, not including your military service
  • You have worked 1,250 hours in the past 12 months, AND
    • 1,250 hours is about 8 months of full-time work or less than 25 hours a week of part-time work
    • all work hours that you are paid for count toward the 1250, including overtime and on-call
    • paid time off (vacation, sick, holiday, or PTO) does not count as hours worked
    • salaried workers (exempt from the Fair labor Standards Act) are covered without having to count their hours
    • if you were active duty military, count the hours you would have worked, if you had not been in service, by looking at the average hours you worked before being called up
  • You work for a company that has at least 50 employees within 75 miles of your job site.
    • If you work for a public employer (federal, state, local governments and public schools) or a private elementary or secondary school, you are covered by FMLA, no matter how many employees there are.
  • Some high-paid salaried workers do not have protection under FMLA. An employer can only make someone a “key” worker if:
    • they are paid a salary (not hourly) AND
    • their pay is in the top 10% of all company employees within 75 miles AND
    • their FMLA leave would make the company lose a lot of money.
    • Technically, the boss can’t deny a “key worker” the FMLA time off – but they don't have to guarantee your job afterward. You may still have rights under FMLA if your job hasn’t been filled or there’s a comparable job available that you could do.

FMLA leave doesn’t have to be taken all at once:

  • Intermittent leave is time off taken in separate blocks of time. You can use intermittent leave for doctor appointments, ongoing treatments, or times that you can’t work because of the medical condition (like asthma or migraines).
  • Reduced leave limits the number of hours you work (like when your doctor says that you should work fewer hours because of the medical condition).

FMLA is enforced by the US Department of Labor, Wage & Hour Division.