Page Reviewed / Updated – September 22, 2020

Overview of the FMLA

What is the Family and Medical Leave Act?  The Family and Medical Leave Act (FMLA) is a federal law that provides you with the right to take time off work when you need to care for an aging parent or other loved one.  It helps one to balance their job with their family responsibilities by allowing them to take up to 12 weeks’ unpaid leave during a 12-month period without risking the loss of one’s employment or employer-provided health insurance.

The similarity in name and purpose between these two federal acts can be confusing and therefore a distinction should be made. The FAMILY Act is short for the Family and Medical Insurance Leave (FAMILY) and is less formally referred to as the Paid Family Leave Act. It is a bill that was first introduced to Congress in 2013. However, it still has not passed as of June 2018, and is not a federal law. Its objective is to provide participants with up to 12 weeks’ paid leave, funded by payroll contributions from employees and employers. The FAMILY Act is based on those states (California, New Jersey, Rhode Island, and in 2018, New York), the District of Columbia (to be in effect in July of 2020), and Washington (to be in effect in January of 2020) that offer paid family leave insurance programs. To be absolutely clear, the FAMILY / Paid Family Leave Act is not yet an option for families in states other than these four.


Am I eligible to take leave under the FMLA?  There are three levels of eligibility for the FMLA.  (1) Criteria that apply to the individual taking leave from their job. (2) Criteria that apply to the individual who requires care. (3) Criteria that apply to one’s employer.

Individual Requirements

The person taking leave must have worked for their current FMLA covered employer for a minimum of 12 months. Note, in order to meet the 12 month requirement, an employee does not have to work 12 months in succession. The employee only has to have worked for the same employer a total of 12 months. However, the person taking leave must have worked 1,250 hours during the 12-month period ibeforely prior to taking leave. This means part-time employees are eligible if they have averaged approximately 24 hours / week.

Employer Requirements

Only employers with at least 50 employees are required to take part in the FMLA program. Furthermore, the 50 employees are required to work within a 75-mile radius. However, there are exceptions to the 50-employee minimum rule. All schools, as well as federal, state, and local government agencies, are considered to be “covered employers,” regardless of their number of employees. All members of the military are also included.

Care Recipient Requirements

The care recipient must be either the spouse (this includes same sex marriages) or a parent of the individual who wishes to take leave. Certain exceptions exist for adoptive parents and for relatives who cared for the individual as a child. For example, an individual who was raised by an aunt or grandmother could qualify for the FMLA. This provision is referred to as in loco parentis. One cannot take leave to care for their mother-in-law or father-in-law.

The care recipient also must have a “serious health condition”. This is loosely defined, but suffice to say that most conditions impacting aging individuals will qualify. For example, Alzheimer’s, dementia, stroke, or any other chronic conditions that require regular treatment by a health care provider will make the care recipient eligible.


How can I use my FMLA?  The FMLA offers up to 12 weeks of unpaid leave. To care for military personnel, this is extended up to 26 weeks (called military caregiver leave). During this period, their health care coverage is preserved. One can take their FMLA leave continuously or intermittently. Continuous leave is leave taken all at once.  An example would be three successive weeks of leave taken to care for a loved one who is recovering from major surgery. Intermittent leave is leave that is taken as several separate blocks of time and may include occasional hourly or daily absences from work. For example, one could take leave at a rate of one day each week for 12 months (which equals approximately 12 weeks total). While on leave, the individual’s job (or a job of similar pay, benefits and responsibilities) is held for them. Their healthcare insurance coverage is also maintained for them. However, they do not receive payment for the hours or days they do not work.

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Application Process

How do I apply for FMLA leave?  If you are eligible for FMLA leave, you must provide your employer with at least 30 days’ advance notice of your intention to take leave. Your employer may require you to use any paid leave you have accrued before you take FMLA leave. However, any paid leave you take will not count against the 12 weeks’ unpaid leave you are entitled to under the FMLA. If your need for leave is unforeseeable, you must notify your employer of your intention to take your leave as soon as you can.

If your employer requests it, you must obtain medical certification to support your application. (In most cases, one has 15 days to provide this). The certification must include information that establishes that your relative requires care. If your relative’s care requires you to take intermittent leave, it must state the frequency and duration of the leave.

One can download the necessary form here, which they should then complete and submit to their employer.

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