Your rights
What is FMLA leave, who qualifies, and how do you apply?
Key points
- Who qualifies
- You need 12 months with the employer, at least 1,250 hours in the last 12 months, and 50 or more employees within 75 miles of your worksite. Private employers are covered at 50 or more employees; public agencies and schools at any size.
- What you get
- Up to 12 workweeks of leave in a 12-month period, unpaid unless you use paid leave you have earned. Your group health coverage continues, and you return to the same or an equivalent job. Caring for a seriously injured or ill servicemember: up to 26 workweeks.
- Deadlines
- Give 30 days notice when the leave is foreseeable, otherwise as soon as practicable. Your employer has 5 business days to send the eligibility notice, and you usually have 15 calendar days to return a medical certification.
- States
- California: the CFRA covers employers with 5 or more employees, and Paid Family Leave pays up to 8 weeks of benefits. New York: Paid Family Leave gives up to 12 weeks at 67% of your average weekly wage, up to a cap, with your job protected.
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The Family and Medical Leave Act (FMLA) lets an eligible employee take up to 12 workweeks of unpaid, job-protected leave in a 12-month period for a new child, their own serious health condition, or to care for a spouse, child or parent who has one. During the leave the employer must keep the employee's group health coverage, and afterwards give back the same job or an equivalent one. The leave itself is unpaid, but paid leave you have earned can run at the same time.
Below: who qualifies, the reasons that count, how to ask for leave and the notices your employer must send, the forms (WH-380-E, WH-380-F, WH-381, WH-382), intermittent leave, pay and health insurance, coming back to work, the state rules in California, Texas, Florida and New York, and what to do if leave is denied. If you were fired for asking for or taking leave, see wrongful termination.
What is FMLA leave?
- Leave
- Up to 12 workweeksin a 12-month period. 29 U.S.C. § 2612(a)(1)
- Pay
- Unpaidpaid leave you have earned can run at the same time. 29 C.F.R. § 825.207(a)
- Your notice
- 30 days aheadwhen the leave is foreseeable; otherwise as soon as practicable. § 825.302(a)
- Medical certification
- 15 calendar daysafter your employer asks for it. § 825.305(b)
The FMLA is a federal law. It covers a private employer with 50 or more employees for each working day during 20 or more calendar workweeks in the current or preceding calendar year. Public agencies, and public and private elementary and secondary schools, are covered no matter how many people they employ. 29 C.F.R. § 825.104(a)
FMLA leave is job-protected. During the leave, your employer must keep your group health plan coverage on the same conditions as if you had kept working. When you come back, you return to the same job or to an equivalent one with equivalent benefits, pay and other terms. 29 C.F.R. §§ 825.209(a), 825.214
Who qualifies for FMLA leave? The three employee requirements
Working for a covered employer is not enough on its own. You are an eligible employee when all three of these are true: 29 C.F.R. § 825.110(a)
- 12 months with the employer. You have worked for this employer for at least 12 months. The months do not have to be in a row.§ 825.110(a)(1), (b)
- 1,250 hours in the last year. You worked at least 1,250 hours during the 12 months right before the leave begins.§ 825.110(a)(2)
- 50 employees within 75 miles. Your employer has 50 or more employees within 75 miles of the worksite where you work.§ 825.110(a)(3)
Checklist
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Reasons you can take FMLA leave
An eligible employee can take up to 12 workweeks of leave in a 12-month period for one or more of these reasons: 29 C.F.R. § 825.200(a)
- The birth of your child, and to care for the newborn.
- The placement of a child with you for adoption or foster care, and to care for the newly placed child.
- To care for your spouse, child or parent who has a serious health condition.
- Your own serious health condition that makes you unable to perform one or more of the essential functions of your job.
- A qualifying exigency because your spouse, child or parent is a military member on covered active duty, or has been notified of an impending call or order to covered active duty.
Military caregiver leave. A spouse, son, daughter, parent or next of kin of a covered servicemember can take up to 26 workweeks in a single 12-month period to care for the servicemember. 29 U.S.C. § 2612(a)(3)
What counts as a serious health condition. An illness, injury, impairment or physical or mental condition that involves inpatient care or continuing treatment by a health care provider. Ordinarily, unless complications arise, the common cold, the flu, an upset stomach or a routine dental problem does not qualify. Mental illness can be a serious health condition when it meets the same conditions. 29 C.F.R. § 825.113
How to apply for FMLA leave, step by step
- Tell your employer. When the leave is foreseeable, such as an expected birth, an adoption or planned medical treatment, give at least 30 days advance notice. If you learn of the need later, give notice as soon as practicable, generally the same day or the next business day. When the need is sudden, notice is due as soon as practicable, generally within your employer's usual call-in rules. 29 C.F.R. §§ 825.302(a)-(b), 825.303(a)
- Say enough for your employer to see it may be FMLA leave. Verbal notice is enough: that you need leave, the reason in general terms, and when it starts and how long it should last. The first time you ask for a reason, you do not have to mention the FMLA. 29 C.F.R. § 825.302(c)
- Your employer's first notices. Within 5 business days, your employer must tell you whether you are eligible, and with it give you a written notice of your rights and responsibilities (optional Form WH-381). 29 C.F.R. § 825.300(b)-(c)
- The medical certification. If your employer asks for one, your health care provider, or your family member's, fills it in (optional Form WH-380-E or WH-380-F). You return it within 15 calendar days of the request, unless that is not practicable despite your diligent, good faith efforts. 29 C.F.R. § 825.305(b)
- Fixing a certification. If your employer finds the certification incomplete or insufficient, it must say in writing what is missing and give you 7 calendar days to fix it. 29 C.F.R. § 825.305(c)
- The designation notice. Once your employer has enough information, such as your certification, it must tell you within 5 business days whether the leave will be counted as FMLA leave (optional Form WH-382). 29 C.F.R. § 825.300(d)(1)
FMLA forms: WH-380-E, WH-380-F and your employer's notices
The Department of Labor's FMLA forms are optional. Employers can use them, or their own version with the same basic information. U.S. Department of Labor: FMLA forms
| Form | What it is for |
|---|---|
| WH-380-E | Medical certification of your own serious health condition, filled in by your health care provider |
| WH-380-F | Medical certification of a family member's serious health condition, filled in by their health care provider |
| WH-381 | Your employer's eligibility notice and notice of rights and responsibilities |
| WH-382 | Your employer's designation notice: whether the leave counts as FMLA leave |
| WH-384 | Certification of a qualifying exigency (military family leave) |
| WH-385 | Military caregiver leave for a current servicemember |
| WH-385-V | Military caregiver leave for a veteran |
What a medical certification may ask. The provider's contact details, when the condition began and how long it is likely to last, the medical facts that support the need for leave and, for intermittent leave, an estimate of how often and for how long. An employer may not require information beyond what the regulations list. 29 C.F.R. § 825.306(a)-(b)
Intermittent FMLA leave and reduced schedules
FMLA leave does not have to be taken all at once. Intermittent leave is leave taken in separate blocks of time for a single qualifying reason; a reduced leave schedule cuts your usual number of working hours per workweek or per workday. 29 C.F.R. § 825.202(a)
- For a serious health condition. Your own, a family member's, or a covered servicemember's: there must be a medical need for leave that is best accommodated through intermittent or reduced-schedule leave.§ 825.202(b)
- After a birth or placement. Leave to bond with a healthy child can be taken intermittently or on a reduced schedule only if your employer agrees.§ 825.202(c)
Is FMLA leave paid? Paid leave, disability benefits and health insurance
Generally, FMLA leave is unpaid. You can choose to use accrued paid leave at the same time; if you don't, your employer can require it. Either way, the paid leave runs at the same time as the unpaid FMLA leave, not on top of it. 29 C.F.R. § 825.207(a)
FMLA and short-term disability. Leave under a disability leave plan is FMLA leave for a serious health condition when it meets the FMLA's criteria, and your employer may count it against your 12 workweeks. The same goes for a workers' compensation absence that your employer designates as FMLA leave. 29 C.F.R. § 825.207(d)-(e)
Health insurance. Your employer must keep your group health plan coverage during FMLA leave on the same conditions as if you had kept working, including family coverage if you had it. 29 C.F.R. § 825.209(a)-(b)
Coming back to work, and protection from retaliation
- Same or equivalent job. As a general rule, on return you get the job you held when the leave began, or an equivalent one with equivalent benefits, pay and other terms, even if you were replaced or the job was restructured.29 C.F.R. § 825.214
- No interference. An employer may not interfere with, restrain or deny your FMLA rights, and that includes discouraging you from using the leave.§ 825.220(a)-(b)
- No retaliation. An employer cannot use FMLA leave as a negative factor in hiring, promotions or discipline, or fire anyone for opposing a practice the FMLA makes unlawful.§ 825.220(a)(2), (c)
State family leave laws: California, Texas, Florida and New York
The FMLA applies in every state. California and New York add their own job-protected leave and a state program that pays benefits; Texas and Florida add narrower rules. Cal. Gov. Code § 12945.2 · N.Y. Workers' Comp. Law § 204
| Federal FMLA | California | New York | |
|---|---|---|---|
| Employers covered | 50 or more employees; public agencies and schools of any size | 5 or more employees (CFRA) | One or more employees on at least 30 days in a calendar year (Paid Family Leave) |
| When you qualify | 12 months, 1,250 hours, 50 employees within 75 miles | More than 12 months and at least 1,250 hours (CFRA) | After 26 consecutive weeks, or 175 days on a part-time schedule |
| How long | Up to 12 workweeks in a 12-month period | Up to 12 workweeks (CFRA), plus pregnancy disability leave of up to four months | Up to 12 weeks in a 52-week period |
| Pay | Unpaid | Paid Family Leave benefits for up to 8 weeks: $50 to $1,765 a week | 67% of your average weekly wage, up to 67% of the state average weekly wage |
| Job back afterwards | Same or equivalent job | Yes under the CFRA; Paid Family Leave alone does not protect the job | Same or comparable job |
- California. The California Family Rights Act (CFRA) covers employers with 5 or more employees and gives up to 12 workweeks in a 12-month period, including to care for a domestic partner, parent-in-law, grandparent, grandchild, sibling or a "designated person". It generally runs at the same time as FMLA leave, so the two together do not exceed 12 workweeks, except for pregnancy disability. Pregnancy disability leave of up to four months comes in addition.Cal. Gov. Code §§ 12945, 12945.2
- California Paid Family Leave. The state program pays benefits for up to 8 weeks in a 12-month period to bond with a new child, care for a seriously ill family member or support a family member's military deployment, from $50 to $1,765 a week. It provides benefit payments but not job protection; the FMLA or the CFRA may protect your job. Apply no earlier than the first day of your family leave and no later than 41 days after it begins.California EDD: Paid Family Leave
- New York. Paid Family Leave covers employers with one or more employees on at least 30 days in a calendar year. After 26 consecutive weeks of work, or 175 days on a part-time schedule, you can take up to 12 weeks in a 52-week period, paid at 67% of your average weekly wage, up to 67% of the state average weekly wage, and at least $100 a week (your full wages if they are less). Your employer must keep your health benefits and restore you to the same or a comparable job.N.Y. Workers' Comp. Law §§ 202, 203, 203-b, 203-c, 204
- Texas. No Texas law requires private employers to give paid or unpaid leave, the Texas Workforce Commission explains; for family and medical leave, it points to the FMLA's 12 weeks for eligible employees of covered employers. Leave an employer promises in a written policy or agreement is enforceable under the Texas Payday Law.Texas Workforce Commission
- Florida. Florida law adds two rules. State career service employees can take parental or family medical leave without pay for up to 6 months and return to the same or an equivalent job. And an employer with 50 or more employees must let an employee of 3 or more months take up to 3 working days of leave in any 12-month period when the employee, or a family or household member, is a victim of domestic or sexual violence.Fla. Stat. §§ 110.221, 741.313
If your employer denies FMLA leave, or punishes you for taking it
| If… | What to do | Good to know |
|---|---|---|
| Your employer says you are not eligible | Read the eligibility notice: it must give at least one reason, such as your months of employment, your hours, or the employees within 75 miles. | Due within 5 business days of your request. 29 C.F.R. § 825.300(b) |
| Your certification is called incomplete or insufficient | Your employer must say in writing what is missing, and you have 7 calendar days to fix it. | 29 C.F.R. § 825.305(c) |
| You were refused leave, discouraged from taking it, or punished for it | You can file a complaint with the Wage and Hour Division, or bring a lawsuit. | A lawsuit is due within 2 years of the last violation, or 3 years if it was willful. 29 U.S.C. § 2617(c)(1)-(2) |
| You work in California | CFRA and pregnancy leave complaints go to the Civil Rights Department. | Call 800-884-1684, or file online. Civil Rights Department |
Common questions
What is FMLA leave?
A federal right to up to 12 workweeks of unpaid, job-protected leave in a 12-month period for a new child, your own serious health condition, or to care for a spouse, child or parent who has one. Your group health coverage continues during the leave.
Who qualifies for FMLA?
An employee of a covered employer who has worked there at least 12 months, for at least 1,250 hours in the last 12 months, at a worksite with 50 or more employees within 75 miles.
Is FMLA leave paid?
No, it is generally unpaid. Paid leave you have earned can run at the same time, and your employer can require it. California and New York pay benefits during family leave through state programs.
How much notice do I have to give for FMLA leave?
At least 30 days when the leave is foreseeable. Otherwise as soon as practicable: generally the same day or the next business day after you learn of the need.
What FMLA forms do I need?
If your employer asks for a medical certification, your health care provider fills in Form WH-380-E for your own condition, or WH-380-F for a family member's, or your employer's own form with the same basic information. You have 15 calendar days to return it.
Can I take FMLA leave a few days at a time?
Yes, for a serious health condition when there is a medical need for it. To bond with a healthy new child, only if your employer agrees.
Can I be fired while on FMLA leave?
Not for taking it. Your employer cannot interfere with the leave or use it as a negative factor in discipline, and as a general rule you return to the same or an equivalent job. You can complain to the Wage and Hour Division, or sue within 2 years (3 years if the violation was willful).
What is the difference between FMLA and short-term disability?
The FMLA protects your job and your health coverage but is unpaid. A short-term disability plan pays benefits. When the absence is for a serious health condition, leave under a disability plan can count as FMLA leave at the same time.
Does California or New York give more than the FMLA?
Yes. California's CFRA covers employers with 5 or more employees, and its Paid Family Leave pays up to 8 weeks of benefits. New York's Paid Family Leave gives up to 12 weeks, paid at 67% of your average weekly wage up to a cap, with your job protected.
Official sources
- 29 U.S.C. § 2611, FMLA: definitions (eligible employee, employer) (U.S. Code, 2024 ed.) govinfo.gov
- 29 U.S.C. § 2612, FMLA: leave requirement (U.S. Code, 2024 ed.) govinfo.gov
- 29 U.S.C. § 2615, FMLA: prohibited acts (U.S. Code, 2024 ed.) govinfo.gov
- 29 U.S.C. § 2617, FMLA: enforcement and time limits (U.S. Code, 2024 ed.) govinfo.gov
- 29 C.F.R. § 825.104, covered employer (2025 ed.) govinfo.gov
- 29 C.F.R. § 825.110, eligible employee (2025 ed.) govinfo.gov
- 29 C.F.R. § 825.112, qualifying reasons for leave (2025 ed.) govinfo.gov
- 29 C.F.R. § 825.113, serious health condition (2025 ed.) govinfo.gov
- 29 C.F.R. § 825.120, leave for pregnancy or birth (2025 ed.) govinfo.gov
- 29 C.F.R. § 825.200, amount of leave (2025 ed.) govinfo.gov
- 29 C.F.R. § 825.202, intermittent leave or reduced leave schedule (2025 ed.) govinfo.gov
- 29 C.F.R. § 825.207, substitution of paid leave (2025 ed.) govinfo.gov
- 29 C.F.R. § 825.209, maintenance of employee benefits (2025 ed.) govinfo.gov
- 29 C.F.R. § 825.214, employee right to reinstatement (2025 ed.) govinfo.gov
- 29 C.F.R. § 825.220, protection for employees who request leave (2025 ed.) govinfo.gov
- 29 C.F.R. § 825.300, employer notice requirements (2025 ed.) govinfo.gov
- 29 C.F.R. § 825.302, employee notice for foreseeable leave (2025 ed.) govinfo.gov
- 29 C.F.R. § 825.303, employee notice for unforeseeable leave (2025 ed.) govinfo.gov
- 29 C.F.R. § 825.305, certification, general rule (2025 ed.) govinfo.gov
- 29 C.F.R. § 825.306, content of medical certification (2025 ed.) govinfo.gov
- 29 C.F.R. § 825.313, failure to provide certification (2025 ed.) govinfo.gov
- U.S. Department of Labor: FMLA forms dol.gov
- U.S. Department of Labor: How to file a complaint with the Wage and Hour Division dol.gov
- Cal. Gov. Code § 12945.2, California Family Rights Act leginfo.legislature.ca.gov
- Cal. Gov. Code § 12945, pregnancy disability leave leginfo.legislature.ca.gov
- California Civil Rights Department: Family care and medical leave and pregnancy disability leave (notice, January 2025) calcivilrights.ca.gov
- California Civil Rights Department: Filing a complaint calcivilrights.ca.gov
- California EDD: Paid Family Leave edd.ca.gov
- California EDD: Paid Family Leave, Step 2: Apply edd.ca.gov
- N.Y. Workers' Comp. Law § 202, covered employers nysenate.gov
- N.Y. Workers' Comp. Law § 203, eligibility for family leave benefits nysenate.gov
- N.Y. Workers' Comp. Law § 203-b, reinstatement after family leave nysenate.gov
- N.Y. Workers' Comp. Law § 203-c, health insurance during family leave nysenate.gov
- N.Y. Workers' Comp. Law § 204, family leave benefits nysenate.gov
- Texas Workforce Commission, Texas Guidebook for Employers: Vacation and sick leave twc.texas.gov
- Fla. Stat. § 110.221, parental or family medical leave (state career service) flsenate.gov
- Fla. Stat. § 741.313, leave for victims of domestic or sexual violence flsenate.gov
Related
This page explains the law in general terms. It is not legal advice about your situation. Justice is not a law firm and is not affiliated with any court or government agency.