Disclaimer: The American Cancer Society does not offer legal advice. This information is intended to provide general background in this area of the law.
The Family and Medical Leave Act (FMLA) of 1993 was designed to help employees balance their work and family responsibilities by allowing them to take reasonable unpaid leave for certain family and medical reasons. This is because workers should not have to choose between the job they need and the family members they love who may need their care.
The FMLA gives certain employees the right to take up to 12 weeks of unpaid, job-protected leave per year. It also requires that the employee’s group health benefits be maintained during the leave. But good communication is key to getting the information you need so FMLA works for you if you need it.
FMLA applies to all public and private employers with 50 or more employees. These employers must provide an eligible employee with up to 12 weeks of unpaid leave each year for any of the following reasons:
Note that some states have family and medical leave laws with broader rights than FMLA. The US Department of Labor can help you get information about your state. (See Additional resources for their contact information.)
There are fact sheets available that explain special FMLA rules, such as those for:
Employees are eligible for FMLA leave if all of the following apply:
There’s more than one way to define a serious health condition. It can mean any illness, injury, impairment, or physical or mental condition that involves any period of illness or treatment connected with inpatient care. This means at least one overnight stay in a hospital, hospice, or residential health-care facility, and any period of illness or treatment which involves incapacity afterward (the person cannot work, go to school, or perform regular activities).
But a serious health condition doesn’t always mean a hospital stay. It may also be a condition that has ongoing treatment, which includes any length of incapacity due to any of the following:
If possible, an employee must give an employer at least 30 days notice before FMLA leave is to start. This only applies to planned medical treatments and elective surgery. Knowing that far ahead is rarely possible when you have cancer or when you are taking care of a loved one with cancer. In the case of unexpected need due to serious illness, you must let your employer know as soon as possible, at least within 1 to 2 business days of when you first learn you’ll need leave.
FMLA leave can be taken all at once or it can be taken in shorter blocks of time, such as 2 days a week, or 1 week a month, as long as it’s taken for a single reason. FMLA can also be used to reduce the amount of time you work each day, for instance, so that you work a part-time schedule for a while. Keep in mind things like worker's compensation and maternity leave may count as FMLA or be counted against the 12 weeks' time.
You’ll need a doctor’s note to verify that the medical condition is serious and you are unable to work for these times, or that your family member’s serious illness requires you to take this time for their care.
In selecting your 12-month period, the employer may choose to use:
The FMLA only requires unpaid leave. But it lets an employee choose to use accrued paid leave, such as vacation or sick leave, for some or all of the FMLA leave period. The law also lets the employer require the employee use paid leave for FMLA.
The employer must decide if an employee’s use of paid leave counts as FMLA leave, based on information from the employee. When paid leave is used instead of unpaid FMLA leave, it may be counted against the 12 weeks of FMLA leave if the employee is notified that this is the case when the leave begins.
For FMLA purposes, an employee’s spouse, son or daughter under the age of 18, and parents are immediate family members. The term “parent” does not include a parent in-law. The terms “son” or “daughter” do not include those age 18 or over unless they are unable to take care of themselves because of mental or physical disability that limits one or more of the major life activities as those terms are defined in regulations issued by the Equal Employment Opportunity Commission (EEOC) under the Americans With Disabilities Act (ADA). The term “parent” may include people who are acting as parents to the child, even though their legal relationship may not be formalized.
For military families in certain situations, the son, daughter, parent, or next of kin of an adult armed forces member can take FMLA to provide care for up to 26 work weeks.
If you are taking FMLA leave to take care of someone else, your employer may require that you prove your relationship with that person. You may also have to provide proof that they have a serious illness.
For any leave taken due to a serious health condition, the employer can request that you provide medical certification, which confirms that a serious health condition exists. This is usually a note or form signed and dated by a doctor that states all of the following:
If your employer asks you for an update on your medical certification or for a second opinion, you might need to provide it to keep your FMLA rights (see below).
Under some conditions, your employer may deny your continuing on FMLA leave if you don’t provide the required medical certification (written information signed by your doctor). But the employer may not make you return to work early by offering you a light duty assignment.
Employers are not allowed to interfere with, restrain, or deny any right provided under this law. Most of the time, employees will not lose their jobs if they use FMLA leave. Here are some situations you may be wondering about.
If you are an eligible employee who has met FMLA’s notice and certification requirements (written information from your doctor), and you have not already used up your FMLA leave for the 12-month period, you may not be denied FMLA leave. But any employee who lies or uses fraud to get FMLA leave from an employer loses their FMLA rights to get back their job or keep their health benefits.
Your employer is required to keep your group health insurance coverage while you’re on FMLA leave if health insurance was provided before the leave was taken. It must be kept on the same terms as if you had continued to work. If you paid all or part of the health care premiums, arrangements will need to be made for you to continue to pay your share while on leave.
In some cases, the employer may make you repay the premiums it paid to keep your health coverage if you do not return to work after FMLA leave. Your employer cannot do this if your reason for not going back to work was your or your family member’s serious health condition. You may need to check with the Wage and Hour Division of the Department of Labor (see Additional resources) if your employer asks you to pay back the premiums.
Note that your employer is not required to continue your other benefits during FMLA.
Most employees of the United States government are covered by the FMLA or similar rules. Federal employee leave policies are administered by the US Office of Personnel Management (OPM). You might need to contact your agency’s personnel or human resources office to find out exactly what applies to you.
Some states have their own laws or requirements for employers, and there may be other laws that apply to your situation. You can contact the Department of Labor (listed in Additional resources) to find someone who knows more about your state.
To learn more about FMLA provisions and rules, read the FMLA Fact Sheet posted on the US Department of Labor website at www.dol.gov/whd/regs/compliance/whdfs28.pdf, or call the Wage and Hour Division’s referral and information line at the Department of Labor at 1-866-4-USWAGE (1-866-487-9243). They can give you other helpful information and tell you how to reach the Department of Labor division office nearest you.
The American Cancer Society medical and editorial content team
Our team is made up of doctors and oncology certified nurses with deep knowledge of cancer care as well as journalists, editors, and translators with extensive experience in medical writing.
Along with the American Cancer Society, other sources of information include:
United States Department of Labor, Wage and Hour Division
Toll-free number: 1-866-487-9243 (1-866-4-USWAGE)
This site includes subsections with pages that explain more about FMLA, including how it impacts state law, employer policy variations, links to airline crew rules, specific changes for military families, and more.
Cancer and Careers
A resource for working people with cancer and their employers; offers articles, news, charts, check lists, tips, and a community of experts, patients, and survivors.
Cancer Legal Resource Center (CLRC)
Toll-free number: 1-866-843-2572 (1-866-THE-CLRC)
A non-profit program that gives free and confidential information and resources on cancer-related legal issues to cancer survivors, their families, friends, employers, health care professionals, and others coping with cancer.
*Inclusion on this list does not imply endorsement by the American Cancer Society
US Department of Labor. Family Medical Leave Act. Accessed at https://www.dol.gov/whd/fmla/ on May 13, 2019.
US Department of Labor. FMLA frequently asked questions. Accessed at https://www.dol.gov/whd/fmla/fmla-faqs.htm on May 13, 2019.
Last Revised: May 13, 2019
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