Common FMLA Issues

Can I use my paid vacation or sick time as leave under the revised Family and Medical Leave Act (FMLA)?

Yes. You can choose to use paid vacation or sick time if you need to take leave under the FMLA. Your employer can also make you use up your paid time when you request to take FMLA leave, before you can take any unpaid leave.

Can a father take leave from his job under the revised Family and Medical Leave Act for the birth of his child?

Yes. As long as his employer is subject to FMLA, a father can take up to 12 weeks of leave for the birth of his child and to care for his spouse who is incapacitated due to pregnancy and/or childbirth.

Can I take FMLA leave from my job if I am pregnant or give birth to a child?

Yes. As long as your employer is subject to FMLA, you are entitled to take up to 12 weeks of leave for health conditions related to your pregnancy and/or childbirth. 

How do I know if my medical certification is good enough to take leave under the revised Family and Medical Leave Act?

If your employer does not believe your medical certification to be complete or sufficient for the purposes of the FMLA, your employer must specify the problems with your medical certification in writing, and give you up to 7 days to provide a more complete and/or sufficient medical certification.

Does a court or the U.S. Department of Labor have to approve any settlement between my employer and I for a violation of the revised Family and Medical Leave Act?

No. You are free to enter into a settlement of any claim for violation of the FMLA that you might have against your employer, which typically results in you waiving all rights to further action against your employer for that violation of law.

If I am taking more than 3 days of leave for a serious health condition for which I am receiving continuing treatment under FMLA, are there any timing restrictions on visits to my healthcare provider for treatment?

Yes. The first healthcare provider visit must occur within 7 days of the beginning of the leave period, and you must have at least two visits with your healthcare provider for continuing or periodic treatment per year.

Can I take leave from my job under the revised Family and Medical Leave Act if I am sick?

You qualify to take up to 12 weeks of leave under the FMLA if you are suffering from a chronic serious health condition that has left you incapacitated, or for which you must undergo treatment.

How quickly does my employer have to let me know if I am eligible to take leave under the revised Family and Medical Leave Act (“FMLA”)?

Except in extraordinary circumstances, your employer must decide whether you are eligible to take leave under the FMLA within five business days of the date that you requested to take FMLA leave.

If I am taking more than 3 days of leave for a serious health condition under the revised Family and Medical Leave Act (“FMLA”), are there any timing restrictions on the two required healthcare provider visits during that time period?

Yes. The first healthcare provider visit must occur within 7 days of the beginning of the leave period, and both visits must occur within 30 days of the beginning of the leave period.

What is a serious health condition under the revised Family and Medical Leave Act (“FMLA”)?

A serious health condition is an illness or other medical condition, which may be mental or physical, that requires either inpatient care or continuing treatment by a healthcare provider.

If my doctor restricts me to light duty work for a period of time, does that time count against my 12 weeks of leave for a serious health condition under the revised Family and Medical Leave Act?

No. The revised FMLA is clear that any period during which an employee is restricted to light duty is not countable against his/her FMLA leave time.

Can I take leave under the revised Family and Medical Leave Act (“FMLA”) for hours that I am required to work overtime?

Yes. As long as you provide your employer with the proper medical certification, you can take FMLA leave for your mandatory overtime hours.

Can my employer deny me a perfect attendance award if my only absences are due to FMLA leave time?

Yes. An employer can deny you a perfect attendance award even if your only absences were taken pursuant to the FMLA.

How Do I Determine If I Have Worked 1,250 Hours In A 12-Month Period?

Your individual record of hours worked would be used to determine whether 1,250 hours had been worked in the 12 months prior to the commencement of FMLA leave. As a rule of thumb, the following may be helpful for estimating whether this test for eligibility has been met:

  • 24 hours worked in each of the 52 weeks of the year; or
  • over 104 hours worked in each of the 12 months of the year; or
  • 40 hours worked per week for more than 31 weeks (over seven months) of the year.

The information on this page is meant to provide a general overview of the law. The laws in your state and/or city may deviate significantly from those described here. If you have specific questions related to your situation you should speak with a local attorney.

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