Family Medical Leave Act (FMLA) Rights

FMLA gives eligible employees of a covered employer the right to take unpaid leave, for a period of up to 12 work weeks in any 12-month period.  FMLA leave is contingent upon the following factors:

Qualifying Leave

FMLA allows eligible employees to take leave for the following reasons:

  • Because of the birth of a child or the placement of a child for adoption or foster care;

  • Because the employee is needed to care for a family member (child, spouse, or parent) with a serious health condition; or

  • Because the employee's own serious health condition makes the employee unable to do his/her job.

Eligible Employee

Must satisfy ALL of the following conditions:

  • The employee has been employed by the employer for at least 12 months (whether consecutive or not);

  • The employee worked (as defined under the Fair Labor Standards' Act) at least 1,250 hours during the 12-month period immediately preceding the leave; and

  • At the time leave is requested, the employee is employed at a work site where 50 or more employees are employed by the employer within 75 miles of the work site.


A COBRA qualifying event is not triggered until either the end of the 12-week FMLA leave period or, if earlier, when the employee makes it known that he/she will not be returning to work.  Therefore, a COBRA qualifying event occurs on the last day of FMLA.

Twelve Month Period Determined for FMLA

An employer may choose the method for determining the twelve month period.  Most employers calculate it on a rolling year basis starting at the time the FMLA leave begins.

Notification Requirements?


  • Should notify the employee of the FMLA leave designation within two business days of learning the leave is being taken for an FMLA purpose; and
  • The notice may be oral, but must be confirmed in writing ("Employer Response to Employee Request for Family Medical Leave" Form).


  • If the need is foreseeable, the employee must give the employer at least thirty days' advance notice before FMLA leave is to begin; or
  • If the need is not foreseeable, notice must be given as soon as practical (1-2 business days of when the need for leave becomes known to the employee).

Medical Certification

Can require the employee to present medical documentation to which the employee has at least fifteen calendar days to comply.  The “Certification of Health Care Provider” Form outlines the maximum medical information that may be required for FMLA leave.

FMLA and Benefits

FMLA does not require continuation of non-health benefits but all the employee’s benefits must be restored to their previous status upon return to work.  If a lapse occurs, the employer cannot require current evidence of insurability or exclude coverage for conditions arising while the employee was on FMLA leave and not covered by the plan.

Health Insurance Administration

  • If an employee fails to pay his/her share of the health insurance premium during leave, the regulations permit the employer to cancel their insurance. 
  • There is a required minimum grace period of thirty days and the employer must send a written notice of the cancellation at least fifteen days before the coverage will cease.
  • Once the employee returns to work, health insurance must be restored without condition.

Premium Payment

  • If an employer elects to continue health coverage for an employee by paying the employee's share and the employee fails to return to work at the end of FMLA leave, the employer may recover all of the health benefit premiums it paid for group health coverage (both the employer's share and the employee's share) during the period of unpaid FMLA leave.

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