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FMLA, paid family leave & leave of absence legal answers for employees

Understanding your employer’s time off policies can be confusing. When can you use PTO or paid family leave? If a family member is sick, what options do you have for taking time with income protection? Below, you will find several of the most frequently-asked questions and answers about time off policies for employees.

In light of the challenges that many families may face as a result of the coronavirus crisis, the federal government, alongside several states and municipalities are introducing emergency legislation, including temporary changes to employment law. For the latest advice specific to your situation, talk to a lawyer


Questions about the coronavirus pandemic?

Visit the Coronavirus Legal Center and ask a lawyer today.


What is FMLA?

The Family and Medical Leave Act (FMLA) is a federal law that requires many businesses to give their workers time away from work when the employee or an immediate family member is ill, or for the pregnancy, birth, or adoption of the employee’s child. FMLA requires covered employers to give workers up to 12 weeks of time away from work, and ensures that employees will still have a job to come back to after their leave.

Unless a public health emergency is declared, FMLA does not require covered employers to provide paid time off, although your employer may require you to use some or all of your available sick time or PTO when you take an FMLA leave. FMLA provides for job protection, not income protection.

A “covered employer”, in non-emergency situations, is one that is a private business with at least 50 employees, a public or government agency, a public or private elementary or secondary school.

How has FMLA/paid leave law changed as a result of the coronavirus outbreak? 

The Families First Coronavirus Response Act was passed into law on March 18, 2020. It allows the following emergency protections: 

  • Two weeks of paid sick leave for employees ordered to quarantine, those who are seeking a COVID-19 diagnosis or are already diagnosed, and those caring for someone else who has been diagnosed. Self-quarantine that has not been ordered by a medical professional or by law is not included. That said, this paid leave does apply for parents who are unable to work during their child’s school closures.
  • Public-health emergency FMLA leave for parents who are not able to go to work (or telecommute) if their minor child’s school is closed or their child care provider is not available due to a public health emergency in relation to COVID-19. This leave is structured as two weeks of unpaid leave followed by ten weeks of partially-paid leave. 

In order to be eligible for emergency FMLA leave, an employee must have been employed for more than 30 days and their employer must have fewer than 500 employees. That said, some healthcare providers and emergency responders are not included, and small businesses with less than 50 employees may not have to comply if it would create financial hardship. If your employer has less than 25 employees, your FMLA leave may not be job-protected. 

On the contrary, all employers with fewer than 500 employees must offer emergency paid sick leave regardless of tenure. These emergency measures extend from April 1, 2020 to December 31, 2020. If you have any questions, an employment lawyer can help you understand your rights.

How do I apply for FMLA?

You are not automatically covered under FMLA. If the business you work for is a covered employer under the FMLA, your employer must post a conspicuous notice for employees providing information about how you can apply for leave/file a claim for leave under the Act. If your employer has provided an employee handbook, it may also include information about the company’s FMLA provisions, policies, and procedures.

In general, you should follow normal protocols for requesting time off and provide your employer with as much notice as possible about any time off requests, including leave under the FMLA. If you are not able to provide advance notice, notify your employer as soon as possible. You do not need to specifically state that you want to take FMLA leave, but you should give your employer enough information so they can recognize that the leave could be covered under FMLA. Within five days of your first leave request, your employer is required to notify you whether the time off is covered under FMLA. If the leave is not eligible, you will be told the reason the leave request does not meet the requirements.

How long does FMLA last?

Under the law, FMLA provides for up to 12 weeks away from work every calendar year. The 12 weeks of time off does not need to be consecutive. So, you could take it as needed in shorter increments. Your FMLA leave could also be used intermittently, such as working a reduced schedule.

What is Paid Family Leave?

In some states, including California, New Jersey, Rhode Island, and New York, certain employers are required to provide employees with paid family leave protections that go beyond the FMLA’s protections. This type of leave provides income protection during the employee’s or a covered family member’s serious illness, or for the birth or adoption of the employee’s child. This type of time-off benefit, if required in your state, generally operates as an insurance policy. The minimum length of paid time off varies from state to state, but in general, employees may get from 6 to 12 weeks of partial pay per year.

What is a leave of absence?

Your employer may also give you the option of taking a leave of absence. Personal leaves of absence are not mandated by the law and are up to each employer’s discretion. If your company has a leave of absence policy, they may require you to use up your vacation time or PTO before applying for an unpaid leave.

In contrast to the FMLA or Paid Family Leave laws, you do not need to have a covered reason to take a leave of absence if your employer allows you to do so. But, voluntary leaves of absence are also not guaranteed and do not offer job protection upon return from leave.

How is a leave different from sick days or PTO?

A voluntary leave of absence is not a guaranteed benefit. Your employer could choose to approve or deny your request for an extended period of time away from work. In addition, your leave is likely to be unpaid.

If your employer provides paid sick time or a PTO bank of days that you can use, you generally accrue hours each pay period which you can then use to take paid time off if you become ill (sick time or PTO) or want to take time off for any reason (PTO.)

Know your rights

Your specific rights to paid and unpaid time away from work depend on where you work, and the type and size of employer you work for. Contact your company’s HR representative if you have questions about your employer’s time off and leave policies. If you are concerned that your employer may not be adhering to the law, or if you want to understand your rights in a specific situation, ask a lawyer.

Megan Derguti

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