The FMLA, a federal law since 1993, allows certain employees to take 12 weeks of unpaid leave per year to care for themselves or an immediate family member with a “serious health condition” or disability, to care for a newborn baby, or to care for a child newly placed in foster or adoptive care. Undivided Public Benefits Specialist Lisa Concoff Kronbeck says, “You don’t have to take these [12 weeks] consecutively,” meaning it can be a few hours, days, or weeks at a time throughout the year.
The FMLA guarantees that you can keep your employer-provided health insurance while on leave, and it stipulates that your employer must provide your same job when you return (or an alternative job with equal pay and benefits) as long as you stay under 12 weeks of FMLA leave per year. Concoff Kronbeck cautions that “if the person doesn’t return to work after leave ends, they could be liable for health premiums paid during their absence.”
The FMLA applies to “eligible employees of covered employers” according to the U.S. Department of Labor. Covered employers include:
In addition, you, as an employee, must meet certain qualifications in order to claim FMLA leave:
If you’re not sure whether you qualify, try using this flow chart. The Department of Labor’s FMLA employee guide PDF is also a great resource. You can also call the Wage and Hour Division’s toll-free helpline at 1-866-487-9243 if you’re unsure whether your situation qualifies under FMLA.
Note that each employer uses their own definition of a one-year period (such as the calendar year, the 12 months after your hire date, or the 12 months after your first FMLA request), so be sure to confirm with your employer.
You should provide at least 30 days’ notice wherever possible, or as soon as you can if advance notice is not possible — health emergencies do happen, after all. Follow your employer’s normal routine for providing notice, whether that’s filling out a form with HR, calling a supervisor, or requesting time off on the company calendar, and indicate the reason for your request so that your employer knows it is protected by the FMLA. Your employer is allowed to ask for a doctor’s note and must give you 15 calendar days to provide it, and they must keep all medical information confidential.
Your employer is allowed to require that you use any paid time off first (such as sick leave or vacation days). They are also allowed to ask for regular updates about when you will return.
As long as you are eligible to take FMLA leave, an employer is not allowed to deny your request for time off. The U.S. Department of Labor says, “Employers are prohibited from discriminating or retaliating against employees for having exercised or attempting to exercise any FMLA right.” Any violations can be reported to your local Wage and Hour Division.
The FMLA covers time off to care for a child with a serious health condition, and securing the right supports and services at school is part of that care. In 2019, the Department of Labor issued an opinion letter stating that attendance at an IEP meeting is an essential part of providing “appropriate physical or psychological care” for the child’s serious health condition, so intermittent FMLA leave can be used to attend IEP meetings. (This letter doesn’t address 504 plans or other school meetings, which some attorneys have said likely don’t qualify under FMLA.)
It’s recommended that you clearly communicate to your employer that you will be participating in at least one IEP meeting per year and follow regular guidance for giving advance notice each time you plan to take leave.
If you work for a small employer, you work remotely, or you work part-time, you are likely not eligible for FMLA leave. You may have other job protections or benefits depending on the state you live in.
Individual states sometimes offer protections and programs beyond the FMLA for employees who need to take time off to care for themselves or a family member with health issues. Here’s how to find out what’s available where you live.
Ten states have statewide paid family and medical leave programs (four states have legislation for such programs but they still need to be implemented). These programs fund cash benefits for employees who cannot work due to temporary disability or caregiving responsibilities. You can use this interactive map from the US Department of Labor to see if your state has a paid leave program.
Most employees participate in a statewide paid leave program by having a small amount of their paycheck automatically deducted as part of payroll taxes. If you are self-employed, you will likely have to manually opt in and pay annual contributions if you want to later claim benefits.
Some states have laws that expand protections of the FMLA, such as by making more employees eligible for protected family leave or expanding the definition of who counts as a family member. The laws often have terms like “family leave,” “family and medical leave,” or “family care” in the name. Here’s a chart where you can look up your state to see if there’s other legislation applicable where you live. If you see “leave insurance” next to your state in the chart, that means employers in that state can purchase insurance to offer paid family leave as a benefit to employees.
Whether an employee can get any type of paid leave varies widely depending on the employer, although employers are tax-incentivized to offer two weeks of paid family and medical leave to full-time employees. The best way to find out if your employer offers paid leave, who qualifies, and how to use it is to ask. HR should have full policies and copies of your employment contract. Likewise, employers will have their own policies for taking unpaid leave for employees who are not eligible for FMLA leave.
Efforts are being made at both the federal and state level to expand protections for working parents. You can track paid leave legislation in Congress here to contact your federal representatives about supporting new laws. Some states, counties, and cities have more protective family leave laws than at the federal level, so continue to advocate with your local lawmakers to expand programs and policies that give working parents more flexibility and support.
The CFRA provides similar protections as the FMLA: employees can take up to 12 weeks of unpaid leave to care for a family member, with protection of their job and health benefits, as long as they have worked 1,250 hours for their employer in the past year. The main difference between the FMLA and CFRA is that a covered employer in California is required to have only 5 employees, with no requirement that they work within a certain radius, so more employees are eligible to take protected leave than under FMLA rules.
SDI provides “wage replacement benefits to eligible workers who need time off work due to non-work-related illness or injury, pregnancy, or childbirth.” To be eligible, you must have paid at least $300 to California State Disability Insurance from your paycheck, and you must be unable to work for at least eight days because of your disability.
Disability insurance applies only to your own temporary disability or maternity leave, not another family member. Benefits are calculated based on the wages you earned in the 18 months leading up to your application, and they can be claimed for up to one year. You can apply on the state Employment Development Department website.
Paid Family Leave is meant to financially support employees who need to take time off work to care for a newborn, a child newly placed in foster or adoptive care, or a family member with a serious health condition. The program provides up to 8 weeks of cash benefits per year for eligible employees. Concoff Kronbeck says, “FMLA is unpaid leave. PFL is designed to correspond with that so that people can have some wage replacement.”
To be eligible, you must have paid at least $300 into California State Disability Insurance in the last 18 months (typically an automatic payment to CASDI on your paycheck), and you must not have other paid leave available from your employer. If you are self-employed, you will need to pay contributions to Disability Insurance Elective Coverage (DIEC) in order to claim SDI or PFL.
When you apply for PFL on the EDD website or by mail, your child’s doctor will need to fill out a form about their medical needs. You can use the same benefits calculator as for SDI to estimate your benefits.
The California Employment Development Department notes, “Disability Insurance and Paid Family Leave provide wage replacement benefits only; they do not provide job protection.” However, you can claim SDI or PFL while on FMLA-protected leave.
If you are your child’s IHSS provider, you are entitled to paid leave each year once you have worked a certain number of hours. Concoff Kronbeck breaks it down here:
The 40 hours of paid leave reset every fiscal year on July 1 and don’t roll over, so you must use them by the deadline. For tips on claiming sick hours on your timesheet, see our full article IHSS: Learn How to Submit Your Hours as a Parent Provider.
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