Your Right to FMLA Leave for a Disability

If you need time off work for health, disability, or caregiving reasons, you might be protected by the Family and Medical Leave Act (FMLA). The FMLA is a federal law that gives eligible employees the right to take time off work, unpaid, to recover from serious medical conditions and care for ailing family members, among other things.

Below, we explain the basics of taking FMLA leave, including who qualifies for disability leave, what situations the law covers, and your right to reinstatement when your leave is over.

Who Qualifies for FMLA Disability Leave?

You qualify for FMLA leave if you work for a covered employer and you meet the law's eligibility requirements.

Employers Who Are Covered by the FMLA

Employers must comply with the FMLA if they have at least 50 employees. For this purpose, employees include those who work full time, those who work part time, and employees who are on leave and expected to return to work.

Employees Who Are Eligible for FMLA Leave

Not all employees who work for covered employers are eligible to take FMLA leave. To qualify for FMLA leave, you must:

• work at a site where your employer has at least 50 employees within a 75-mile radius
• have worked for your company for at least 12 months, and
• have worked at least 1,250 hours for your employer in the 12 months immediately prior to the date your leave will start. (This works out to about 24 hours per week.)

What Medical Conditions Qualify for FMLA Leave?

The FMLA gives employees the right to take time off for their own serious health conditions, to care for a family member with a serious health condition, to bond with a new child, and for military family leave.

FMLA Leave for a Serious Health Condition

Eligible employees may take FMLA leave for their serious health condition (or to care for a family member with a serious health condition). Most disabilities qualify as serious health conditions, but not all do. To use FMLA leave, you (or your family member) must have an injury, impairment, illness, or physical or mental condition that involves:

• incapacity or treatment for a chronic serious health condition (including disabilities like asthma, epilepsy, or diabetes)
• permanent or long-term incapacity for a condition for which treatment may not be effective (such as Alzheimer's disease, cancer, or stroke)
• incapacity due to pregnancy or prenatal care (this includes routine doctor's visits)
• inpatient care at a hospital, hospice, or residential medical care facility
• multiple treatments for either restorative surgery following an accident or injury, or a condition that would require an absence of more than three days if not treated, or
• incapacity for more than three full calendar days with continuing treatment by a health care provider.

You may take FMLA leave to care for your spouse (this includes same-sex spouses), parent, or child, but not for a grandparent, aunt, uncle, in-law, or other relative.

FMLA Leave for a Short-Term Disability

FMLA leave is often used for short-term disabilities. If you need to take off work for any serious health condition, even if it's short-lived, you can use FMLA leave. But to qualify for FMLA leave, you need to be under the continuing care of a doctor (and be unable to work for more than three days) or be a patient at a hospital or nursing facility. Less serious medical conditions, such as a sprained ankle, pink eye, or the flu (without complications), won't qualify for FMLA leave.

Here are some examples of short-term disabilities for which you could use FMLA leave:

• multiple treatments of dialysis or chemotherapy and radiation
• a severe case of COVID-19 that requires you to stay overnight in a hospital or that incapacities you for three or more days and requires medical treatment
• incapacity due to pregnancy or prenatal care (including routine doctor's visits), and
• multiple treatments for restorative surgery following an accident or injury.

But remember, FMLA leave is unpaid. The FMLA just protects your job so that you can return to it after your leave is over. Some states do provide short-term disability benefits (usually 50%-70% of someone's weekly earnings), which can be used during FMLA leave.

FMLA Parental Leave

FMLA parental leave is available if you're unable to work during pregnancy or to bond with a newborn, newly adopted child, or a newly placed foster child. You must take this leave within a year after the child arrives or, if necessary, you can use leave before the child arrives. For example, you may need leave for pregnancy disability (covered as a serious health condition) for several weeks before the baby is born.

FMLA Military Family Leave

You may use FMLA leave for two types of military family needs:

• Military caregiver leave is available for employees who need leave to care for a family member with a serious illness or injury suffered or aggravated while on active duty (including many service-related disabilities). This leave is also available to care for veterans who have been out of the armed forces for no more than five years. The service member or veteran must be undergoing medical treatment, recuperation, or therapy, in outpatient status, or be on the temporary disability retired list. For this type of leave, more family members are covered: employees can take time off if they are the spouse, parent, son, daughter, or next-of-kin of the service member or veteran.
• "Qualifying exigency leave" is available for employees who need time off to handle certain practical issues arising from a family member's active military duty or call to active duty. These issues include arranging childcare, making financial and legal arrangements, and attending counseling.

For more information on the FMLA's military family leave provisions, see Nolo's article on taking military family leave.

How Much FMLA Leave Can Employees Take?

For all types of FMLA leave, except military caregiver leave, employees may take up to 12 weeks off in a 12-month period. Most employers use a "rolling" method of counting when the 12-month period stops and starts; with this method, the 12-month period starts when an employee first takes leave. Other employers use a calendar year or fiscal year.

Employees can take up to 26 weeks off for military caregiver leave. However, this leave entitlement doesn't generally renew each year, like other types of FMLA leave. Military caregiver leave is available once per service member, per injury. An employee would be entitled to an additional period of leave if another family member was injured during military service or if the same family member suffered a new injury during military service. But for the same family member and the same injury, this leave is available only once.

You don't necessarily have to take all of your FMLA leave at once. If you're taking leave for a disability (yours or a family member's), you may take leave intermittently—a few days or hours at a time—or work on a reduced schedule if it's medically necessary. Intermittent or reduced schedule military leave is also available for caregiving or for qualifying exigencies. However, if you want to take intermittent or reduced schedule leave to care for a new child (for example, to return to work part time), your employer must agree to the request.

Using Your Health Insurance and Vacation and Sick Time While on Leave

While you're on FMLA leave, you're entitled to continue your group health insurance benefits, if your company provides them. If you usually pay part of the premium, your employer can require you to continue paying your share.

Yes, FMLA leave is unpaid. But you can (or your employer can require you to) use your accrued paid leave (vacation or sick time) during your time off, as long as your reason for taking leave is covered by your employer's plan. For example, if you are taking FMLA leave due to your disability, you could use your accrued sick leave to get paid for some or all of that time off.

But if you're using FMLA leave to care for a family member, you can use accrued sick leave only if your employer's plan allows employees to use sick leave to care for others who are ill, not just for their own health problems.

Do You Have to Give Advance Notice Before Your FMLA Leave?

If you need disability leave for a foreseeable reason (such as surgery that has been scheduled long in advance or having a baby), you must give your employer notice at least 30 days in advance.

If you need disability leave for an unforeseeable reason (you are hospitalized following an accident, for example), you must give as much leave as is practical under the circumstances.

What Paperwork Does FMLA Leave Require?

Your employer will provide you with paperwork explaining your rights and obligations under the FMLA. If you're taking leave for a disability, you may need to provide a medical certification from the health care provider.

If you're taking leave because of a family member, you may also have to provide other documents, such as proof of a family relationship or information regarding your family member's military service. For more information, see our article on FMLA's required notices and certifications.

Your Right to Get Your Job Back After Disability Leave

You can't be let go while you're on disability leave. And when you finish taking FMLA leave, if you're still able to perform your job duties, you have the right to be reinstated to your former position or one that's equivalent to it in all important respects, including pay, job duties, shift, schedule, and so on. All of your employee benefits must be reinstated, as well. There are a handful of situations when reinstatement might not be required (for example, if your job was eliminated while you were on disability leave), but these are exceptions to the general rule.

If you don't have to same ability to do your job when you return because of a disability, your employer must try to accommodate you so that you can do the job with your impairments—if it's reasonable to do so. For more information, see our article that discusses your right to accommodations when you return from a medical leave.

If you don't get your old job back, or your employer denies you leave in the first place, you have the right to sue to be reinstated, take leave, and/or get money damages. For more information, see our article on what you can win in an FMLA case.

_{Updated September 23, 2022}