The Federal Family and Medical Leave Act (FMLA) gives you the right to take time off work for a serious health condition, a category that includes most disabilities, or to take care of others with serious health problems. You may take up to 12 weeks off work every 12 months, unpaid, for serious health conditions that cause incapacity or require certain types of treatment or inpatient care. To exercise your rights under the FMLA, you must give your employer notice as required by the law. You may also have to submit paperwork, including a medical certification.
There are two sets of rules for giving notice under the FMLA for medical or disability-related leave, one for leave that is foreseeable (predictable or expected) and the other for unforeseeable (unexpected or unpredictable) leave.
If you know you will need leave at a certain time, you must give your employer notice at least 30 days in advance. For example, if you have planned surgery or treatment well ahead of time, you are required to give 30 days’ notice. Of course, even if you know you will need leave, the timing of your leave might change for reasons that are out of your control. You are required to give as much notice as practical in these circumstances:
If you suddenly need FMLA leave—for example, because you are hurt in a car crash or are diagnosed with cancer requiring immediate treatment—the 30-day notice rule does not apply. Instead, you must give notice as soon as is possible, typically the same day or the next work day after you learn that you need time off.
You may give notice in a letter or email, by fax or by phone, or in person. Although you can give notice orally, it’s best to put your notice in writing, so there are no misunderstandings later (and you have proof of when you made your request). If you aren’t able to give notice for yourself (because you are unconscious, for instance), a relative or another spokesperson can do it for you.
Under the FMLA, you can use your accrued paid leave, including sick time, vacation days, or paid time off (PTO), to get paid during what would otherwise be unpaid leave. However, you can use your paid leave only for reasons covered by your employer’s plan. For example, you generally cannot use your accrued sick leave to get paid during FMLA leave to care for a seriously ill family member, unless your employer’s plan allows employees to take leave for this purpose.
When you use your paid time off, you must follow all of your employer’s rules, including requirements about how and when you give notice. If your employer’s vacation plan requires employees to give two weeks’ notice before taking time off, for instance, you must give that much notice. In this case, if you have a medical emergency and suddenly need FMLA leave, you are entitled to that leave as long as you give as much notice as you can, as explained above. However, you will have to wait two weeks from the date you notify your employer of your need for leave to get paid for that time off.
When you use the FMLA to take time off for a serious health condition (or to care for a family member), your employer can ask you to provide a medical certification: a form, completed by you and your doctor or other health care provider, giving some information about your condition, your need for leave, and when you are expected to be able to return to work (or your family member's condition, need for leave, and so on). If you have to complete this form, your employer will notify you and give you a copy of the form.
If your employer requests a certification, you must complete your section, get your health care provider to complete the rest, and return the form within 15 days, unless it isn’t practical to do so. For example, if your doctor is on vacation or loses your paperwork despite your best efforts, you should have more time.
Once you give the certification to your employer, it can verify the information on the form or seek to clarify that information by contacting your health care provider. Your employer also has the right to ask you to get a second opinion, from a health care provider it chooses and at its expense.
If your employer is challenging your right to take time off or you believe your employer has improperly denied your request for FMLA leave, it makes sense to talk to a lawyer. An employment lawyer can help you assert your rights and negotiate the time off you need. If your employer won’t meet its legal obligations, a lawyer can help you assess your options and come up with the best strategy going forward, whether that is trying to settle your claims or filing a lawsuit in court.