Enacted in 1993, the Family and Medical Leave Act (“FMLA”) provides up to 12 weeks of unpaid leave to eligible employees who have a serious health condition, who need to care or a parent, child or spouse with a serious health condition, and family members of military personnel called to active duty.  The FMLA also allows for leave for the birth or adoption of a child or the placement of a foster child in your home.  Although leave provided by the FMLA is unpaid, the FMLA protects your job when you return to work.  If your employer takes a negative employment action against you, the FMLA also protects you from retaliation. 

The FMLA can be complicated.  The FMLA doesn’t cover all employees.  The attorneys at Lopez & Wu can help you determine your rights under the FMLA. 


What are some situations when I can take FMLA leave? 

A covered employer must grant eligible employees up to 12 work weeks of unpaid leave in a 12 month period for one or more of the following reasons: 

  • Birth of a child and care of a new child;
  • When you have adopted a child or are caring for a newly placed foster child;
  • Care for an immediate family member with a “serious health condition”; OR
  • When you are unable to work because of a  “serious health condition”. 

In January 2009, due to the United States’ military commitments around the world, Congress added protection for employees who take leave when a parent, spouse, parent, or child has been called for active duty.  Military-related leave does not necessarily extend to 12 weeks. 

  • The lawyers at Lopez & Wu can evaluate your situation and determine the amount of leave you may take. Situations when you may take leave due to deployment or impending deployment include: 

  • 7 calendar days of leave to take care of any issue if the Armed Forces notify a family member of a call or order to active duty 7 days or fewer before the scheduled deployment;
  • Leave to attend any official ceremony, program, event, family support or assistance program, or informational briefing sponsored by the military relating to an active-duty family member;
  • You may take leave to arrange for immediate childcare, make other school arrangements, or to attend meetings with school officials;
  • Leave to make financial and legal arrangements related to an active-duty member’s account;
  • Time to attend counseling with a social worker or therapist for yourself or with a service member;
  • You may take 5 days of leave to be with a family member who is on rest and recuperation leave; OR
  • You may take leave for any other issues arising from the active duty status of a family member if you agree to the terms of leave with your employer. 


How do I know if my employer needs to follow the rules for the FMLA? 

You must work for an employer with 50 or more employees within a 75 mile radius of your workplace. 


Am I eligible to leave under the FMLA? 

The FMLA protects employees who have: 

  • Worked for the employer for at least 12 months AND

  • Worked at least 1,250 hours during the 12 months immediately preceding the start of the FMLA leave. 


How do I tell my employer I want to take FMLA leave? 

If you anticipate that you will need to take leave, you need to provide your employer with 30-days notice.  If you can not foresee a serious health condition, you should inform your employer “as soon as practicable.”  The FMLA does not require you to specifically state that you want to take leave under the FMLA. 

When you request FMLA leave, your employer may request a medical certification supporting your leave request.  A representative of the employer, but not your immediate supervisor, may directly contact your medical provider to authenticate the certification form or obtain a clarification. 


What is a “serious health condition”? 

A serious health condition could include an illness, injury, impairment, or physical or mental condition that involves: 

  • An overnight stay at a health care facility;
  • Incapacity of more than 3 days and two or more treatments by a health care provider;
  • Any period of incapacity due to pregnancy ore prenatal care;vIncapacity due to a chronic serious health condition that require at least 2 visits to a health care provider (e.g., asthma, diabetes, epilepsy); OR
  • Any period of incapacity that is permanent or long-term due to a condition that may not be effective (e.g., Alzheimer’s, stroke, terminal illness).


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