How Much FMLA Leave Can I Take? Understanding Your Right to 12 Weeks Off

Last updated 2 weeks ago. Our resources are updated regularly but please keep in mind that links, programs, policies, and contact information do change.

The Family and Medical Leave Act (FMLA) lets eligible workers step away from their jobs for qualifying family or medical needs without giving up job protection, generally for up to 12 workweeks in a 12-month period. The law itself does not require pay, and the 12 weeks are one total for all of those reasons combined.

To qualify, a worker generally needs 12 months with the employer, 1,250 hours of work in the 12 months before leave and a worksite where the employer has 50 or more employees within 75 miles. How much time is left depends on how the employer measures the leave year. A worker caring for a seriously injured or ill servicemember in the family can take a combined total of up to 26 workweeks, which includes the ordinary 12.

What FMLA protects

The FMLA provides unpaid, job-protected time away from work for specified family and medical needs, and keeps group health benefits in place on the same basis as continued employment. A worker returning from FMLA leave is generally entitled to the same position or an equivalent one with equivalent pay, benefits and employment terms.

Military caregiver leave, taken to care for a servicemember in the family with a serious injury or illness, has a larger allowance: up to 26 workweeks during a single 12-month period that starts with the first day of that caregiver leave. During that single period, all FMLA reasons combined are capped at 26 workweeks, and ordinary non-caregiver reasons remain limited to 12 workweeks. The larger caregiver allowance cannot simply be added to the ordinary allowance.

The caregiver period runs separately from the leave year the employer uses for ordinary FMLA leave, and unused caregiver leave is forfeited when that period ends. The entitlement applies per servicemember and per injury, so care for a different servicemember or a subsequent qualifying injury may create another entitlement, subject to the 26-week cap within any single period. Keep a separate record of the first caregiver-leave day instead of assuming that the employer’s calendar resets this allowance.

Check whether the worker and employer qualify

Private employers are generally covered when they employ at least 50 employees on each working day in at least 20 calendar workweeks during the current or preceding calendar year. Public agencies and public or private elementary and secondary schools are covered regardless of their employee count. Employer coverage and employee eligibility are separate tests.

An employee ordinarily must have worked for the employer for at least 12 months, performed at least 1,250 hours of service in the 12 months immediately before leave begins, and work at a site where the employer has at least 50 employees within 75 miles. The employer checks the months and hours requirements as of the date FMLA leave is to start. If the employer denies eligibility for too few hours or months of service, ask it to identify the shortfall and compare that explanation with work and service records for the proposed leave date.

The 12 months of employment need not be consecutive, although service before a break of seven years or more generally need not be counted. Qualifying military-service obligations and written agreements to rehire can require older service to count. Before accepting a denial based on a start date, identify earlier service and any agreement covering a return to the employer.

For a home-based employee, the worksite is the office to which the worker reports and from which assignments are made, rather than the home. Ask the employer which office it uses for the worksite test.

Different rules for some jobs

Most civilian federal employees are covered by a separate FMLA system administered by the Office of Personnel Management (OPM). The Department of Labor’s system covers private and state or local government workers, along with some federal employees, including Postal Service employees. Federal employees should check their agency’s rules and the OPM guidance before applying the ordinary private-sector tests.

Airline flight crew employees have a special hours test: during the previous 12 months, they must have worked or been paid for at least 60 percent of the applicable total monthly guarantee and at least 504 duty hours. For a line holder, the guarantee is the minimum hours the employer agreed to schedule during that 12-month period; for reserve crew, it is the minimum hours the employer agreed to pay during the period. Eligible flight crews receive 72 days for ordinary FMLA reasons or 156 days for military caregiver leave, calculated using a uniform six-day workweek.

Schools have special rules for instructional employees whose leave falls near the end of a term, and the rule depends on when the leave starts. Instructional employees primarily teach students in a class, small group or individually; aides whose main job is not teaching, counselors, psychologists, curriculum specialists, cafeteria and maintenance workers, and bus drivers are excluded. If an instructional employee starts leave more than five weeks before the term ends, the employer may require the leave to run through the end of the term when it will last at least three weeks and the return would fall in the final three weeks. The other two rules cover leave for a birth, a placement, care of a family member with a serious health condition or military caregiving. When such leave starts within the final five weeks of the term, the employer may keep the employee on leave until the term is over if the absence will last more than two weeks and the employee would return in the final two weeks. When it starts within the final three weeks, the employer can do the same if the absence will last more than five working days.

Get the planned return date and applicable end-of-term rule in writing before arranging classroom coverage.

Which reasons qualify for leave

Ordinary qualifying reasons include birth and newborn care, adoption or foster placement, care for a spouse, child or parent with a serious health condition, and the worker’s own serious health condition that prevents performance of the job.

A serious health condition generally involves inpatient care or continuing treatment by a health-care provider. Routine checkups do not count as treatment for that definition, and ordinary minor illnesses usually do not qualify unless complications arise.

Covered parents include biological, adoptive, step and foster parents, as well as someone who acted as a parent to the worker during childhood; parents-in-law are excluded. The law also recognizes a child for whom the worker has parental care and financial-support responsibilities, without requiring a biological or legal relationship.

Covered children include biological, adopted and foster children, stepchildren and legal wards.

For ordinary family-care leave, a child age 18 or older must be incapable of self-care because of a mental or physical disability when leave starts. That self-care test requires active assistance or supervision with at least three daily tasks, such as bathing, dressing, eating, cooking, shopping or paying bills. When requesting care for an adult child, describe the daily tasks requiring help as well as the condition.

Bonding leave following a birth must be completed within 12 months of the birth. For adoption or foster placement, the corresponding period runs for 12 months from the placement. The bonding deadline and the employer’s leave year are separate clocks.

Military deployment-related leave

Ordinary FMLA leave also covers certain needs arising from a spouse, child or parent’s covered military active duty, known as qualifying exigencies. Covered active duty means deployment to a foreign country; for members of the Reserve components, the deployment must be under a federal call or order to active duty in support of a contingency operation.

Official ceremonies, programs and events related to covered duty must be military-sponsored; related family-support programs and briefings may be sponsored or promoted by the military, military service organizations or the American Red Cross.

• Short-notice deployment qualifies when the member receives seven or fewer calendar days of notice, with leave available during the seven calendar days starting on the notification date. Count this short window from the notification date when planning the absence.
• Military events and related family support programs or briefings qualify when they are officially sponsored or promoted as specified in the regulation and connected to covered duty. Identify the event and its connection to deployment in the leave request.
• Deployment-related childcare and school needs can include arranging alternative care, urgent non-routine childcare, enrollment or transfer, and necessary school or daycare meetings for the military member’s child under 18, or older and incapable of self-care because of disability. Describe the disruption in care and the particular task needed, rather than treat everyday childcare as a deployment emergency.
• Financial and legal arrangements addressing the military absence qualify, as does acting for the member before an agency about military benefits during covered duty and for 90 days afterward. Include the needed agency or legal appointment so the request shows what the time away addresses.
• Counseling can qualify when deployment creates the need and the counselor is not a health-care provider, whether for the worker, military member, the member’s child younger than 18 or an adult child incapable of self-care because of a disability. Identify whether the request concerns deployment-related counseling or a serious health condition; the supporting rules differ.
• Time with a member on temporary rest and recuperation leave during deployment can qualify for up to 15 calendar days starting with each instance of that military leave. Use the member’s actual rest-leave dates when calculating requested time.
• Official post-deployment ceremonies or reintegration events qualify for 90 days after covered duty ends, and needs arising from the member’s death while on covered duty also qualify. Check the end of covered active duty when calculating the post-deployment window.
• For a military member’s parent incapable of self-care, deployment-related needs can qualify for arranging alternative care, urgent non-routine care, care-facility admission or transfer, and necessary non-routine facility meetings. Explain how deployment changed the care arrangement and which immediate task requires an absence.
• Other deployment-related activities qualify only if worker and employer agree that the reason qualifies and agree on the timing and duration. Get that agreement before relying on this final category.

Qualifying-exigency leave may be taken intermittently, meaning in separate blocks. For foreseeable exigencies, give notice as soon as practicable regardless of how far ahead they are known.

Military caregiver leave

Military caregiver leave is available to a covered servicemember’s spouse, child, parent or next of kin, and the child may be of any age.

Next of kin means the nearest blood relative after excluding spouse, parent and child, in this order: relatives with legal custody, siblings, grandparents, aunts and uncles, then first cousins. If the servicemember has designated another blood relative in writing, only that person qualifies as next of kin. Without a designation, relatives at the same level, such as siblings, all count as next of kin and may take leave one after another or at the same time. Identify the family relationship and any written designation before making a caregiver-leave request.

For a current servicemember, the injury or illness must meet both parts of a test: it was incurred in the line of active duty, or existed before active duty and was aggravated in the line of duty, and it may render the member medically unfit for military duties. Covered veterans generally must have been discharged under conditions other than dishonorable within the five years before the first caregiver-leave day. For a covered veteran, the injury or illness must have been incurred or aggravated in the line of active duty and meet at least one of four tests.

• A continuing service injury or illness left the veteran unable to perform their military duties.
• The veteran has a VA service-related disability rating of at least 50 percent based wholly or partly on the condition requiring care.
• A service-related condition substantially impairs gainful work, or would do so without treatment.
• The injury underlies enrollment in the VA Program of Comprehensive Assistance for Family Caregivers.

For veteran care, identify which of these four routes supports the claim instead of relying only on the discharge date.

How the employer counts the leave year

The ordinary 12-workweek limit applies to one or more qualifying reasons within the employer’s applicable leave year, rather than renewing every time a different need arises. Taking time to care for a parent can therefore leave fewer weeks for the worker’s own serious illness.

• A calendar-year method uses the calendar year as the fixed leave period.
• Another fixed-year method can use a fiscal year or an employee’s anniversary year.
• A forward-measured method begins with the first FMLA leave day; the next period begins with the first use after the previous period has ended.
• A rolling-backward method looks at the immediately preceding 12 months each time leave is used and makes only the unused balance available.

Under a fixed-year method, a worker can take 12 weeks near the end of one year and 12 weeks at the beginning of the next. Under a rolling lookback, eight weeks used in the preceding 12 months leaves four weeks available. Ask for the employer’s selected method and its calculation of the remaining balance.

If the employer never selected a method, the method most beneficial to the employee applies. An employer that changes methods must give at least 60 days’ notice, and during the switch employees keep the full 12 weeks under whichever method gives them the greatest benefit.

Spouses can share some leave

Eligible spouses working for the same employer can be limited to a combined 12 weeks for birth or placement and bonding, or to care for a parent with a serious health condition. Each spouse keeps the rest of their own 12 weeks for other qualifying purposes, such as their own serious health condition or care for a child with one. Ask which reason triggers the shared limit before accepting a single joint balance for every kind of absence.

If only one spouse is eligible, that spouse can receive the full 12-week entitlement.

A workweek follows the actual schedule

Leave for an eligible part-time employee is counted proportionally: a worker normally scheduled for 30 hours who takes 10 hours of leave uses one-third of a workweek. When a schedule varies too much to establish the hours otherwise worked, the employer uses a weekly average of scheduled hours over the preceding 12 months, including hours of other leave.

Required overtime missed for a qualifying reason may count against FMLA leave; voluntary overtime not worked does not.

When a holiday falls within a full week of FMLA leave, the whole week still counts as FMLA leave. When leave is less than a full week, the holiday counts only if the worker was scheduled and expected to work it. A shutdown lasting one or more weeks, when employees generally are not expected to report, does not count against FMLA leave.

Taking leave in smaller blocks

Medically necessary leave may be taken intermittently, meaning in separate blocks, or through a reduced work schedule for qualifying treatment, recovery or caregiving. Taking bonding leave in separate blocks with a healthy newborn or newly placed child requires the employer’s agreement; medically necessary leave for a serious health condition does not.

Generally, the employer must count intermittent leave using an increment no larger than its smallest increment for other leave and no larger than one hour. The employer cannot deduct more than the leave actually taken, subject to the regulation’s special physical-impossibility, school and airline rules. If starting or ending work midway through a shift is physically impossible and no equivalent position is available, the entire forced absence counts as FMLA leave, limited to the time when the employer cannot permit work before leave or return the worker to the same or an equivalent position afterward.

For planned medical treatment, the employee must make a reasonable effort to arrange the schedule so it does not unduly disrupt the employer’s operations.

When intermittent leave for planned medical treatment is foreseeable, or the employer has agreed to intermittent bonding leave, the employer may require a temporary transfer to an available job for which the worker is qualified and which better accommodates recurring absences. That temporary job must have equivalent pay and benefits, although its duties need not be the same. A temporary scheduling assignment differs from the equivalent position owed when protected leave ends.

Where pay and state benefits fit

Appropriate accrued paid leave can run at the same time as FMLA leave, either by the employee’s choice or, in some cases, the employer’s requirement. Paid time off used this way counts against the FMLA allowance rather than adding weeks on top of it.

The employer’s normal paid-leave policy decides whether the worker gets that pay, but a worker who does not meet the policy’s extra requirements still has the right to unpaid FMLA leave.

Qualifying leave paid through a disability plan or workers’ compensation can also count against the FMLA balance. Because those absences are already paid, neither the worker nor the employer can require the use of accrued paid leave, although the two may agree, where state law permits, to use paid leave to supplement the benefit. Ask which program supplies the payment and which leave entitlement is being charged at the same time.

State or local law may provide greater family or medical leave rights, and the employer must follow both applicable laws. If an absence qualifies under both state leave law and the FMLA, it counts against both entitlements. A worker who does not qualify under the federal tests may still need to check a separate state entitlement.

The Department of Labor’s paid-leave map links to state agencies that explain eligibility and accept benefit applications. Check the state’s rules for the job and the reason for leave before assuming that federal FMLA coverage also establishes eligibility for state payments.

Keep paying the health-insurance share

The worker must continue paying the normal employee share of group health premiums, including applicable premium changes. Without a longer employer grace period, a payment more than 30 days late can allow coverage to end, but the employer must mail written notice at least 15 days before the termination date. Arrange premium payments before unpaid leave begins, and keep the notices and payment records.

Requesting leave and documenting the need

A first request does not need to use the name FMLA, but it must provide enough information for the employer to recognize that the absence may qualify. Describe the actual need rather than wait to learn the legal name for the leave.

For foreseeable birth, placement or planned qualifying treatment, the worker generally must give at least 30 days’ notice if practicable. If that is not practicable, notice must come as soon as possible and practical. For an unexpected need, the same practical timing applies, and the employer’s customary reporting requirements generally still apply where possible.

Absent extenuating circumstances, the employer must notify the worker of eligibility within five business days after a request or learning that the absence may qualify. A finding of ineligibility must identify at least one reason. A written rights and responsibilities notice must explain the worker’s obligations and the consequences of failing to meet them. Eligibility answers whether the worker qualifies; designation answers whether the particular absence will use protected leave.

Once the employer has enough information to determine whether the leave qualifies, it generally has five business days to say whether the absence will be designated and counted as FMLA leave.

Medical certification and corrections

A certification can require medical facts supporting the need, the condition’s expected duration, and information about inability to work or the family member’s need for care. For intermittent treatment leave, it can also require estimated dates and duration and the medical need for that schedule.

The employee generally has 15 calendar days after the employer’s request to return certification, with more time when diligent, good-faith efforts cannot meet that deadline. If the certification is incomplete or insufficient, the employer must identify what is missing in writing and generally give seven calendar days to correct it, again allowing for diligent efforts that make the deadline impracticable.

The employee’s direct supervisor may not contact the health-care provider. After the worker has had a chance to correct deficiencies, appropriate human-resources, leave or medical personnel may verify that the provider completed or authorized the certification, or clarify handwriting or the meaning of a response. They may not demand medical information beyond what the certification form requires.

The employer may later require a new certification, called recertification, but generally no more than once every 30 days and only in connection with an absence. If the certification gives a minimum duration longer than 30 days, the employer must generally wait until that period ends, although it may ask every six months in connection with absences. Earlier recertification can be allowed for a leave extension, substantially changed circumstances, or information casting doubt on the stated reason or certification.

Returning to work or challenging a denial

An equivalent return position must have substantially similar duties and responsibility as well as virtually identical pay, benefits and working conditions. For the worker’s own serious condition, a uniformly applied policy may require a fitness-for-duty certificate from the provider confirming that the worker can resume work. The designation notice must disclose the requirement and whether the certificate must address the job’s essential functions. Generally the employer cannot require a certificate after every intermittent absence, but a reasonable belief that returning poses a significant risk of harm to the worker or others permits requests up to once every 30 days.

Check the designation notice before paying for return paperwork.

FMLA does not prevent a job loss that would have happened without the leave, and the employer must be able to show that the worker would not otherwise have remained employed.

An eligible salaried worker among the highest-paid 10 percent of all the employer’s employees within 75 miles of the worksite is called a key employee. An employer may deny a key employee’s return to the job if the denial is necessary to prevent substantial and grievous economic injury to its operations. High pay alone does not justify denial under the key-employee exception.

A worker who cannot perform an essential function of the job after leave has no FMLA right to be placed in a different position, although other legal obligations can apply. Equal Employment Opportunity Commission guidance says an employer covered by the Americans with Disabilities Act (ADA) must consider additional unpaid leave as a reasonable accommodation for a worker with a disability even after FMLA is exhausted, unless it would cause undue hardship. Running out of FMLA leave is therefore a reason to check other applicable rights, rather than assume either automatic dismissal or an unlimited extension.

If the employer interferes with leave

Employers may not discourage protected leave or treat its use as a negative factor in hiring, promotion or discipline, and cannot count it under a no-fault attendance policy.

A worker can complain to the Department of Labor’s Wage and Hour Division in person, by mail or by telephone at a local office, or pursue a private lawsuit. A complaint should be filed within a reasonable time after discovering the violation, and no later than two years after it occurred, or three years for a willful violation.

The usual lawsuit deadline is two years after the last alleged violation, or three years if it was willful; state employees can face limits on private lawsuits. Record the alleged violation’s date when considering either enforcement route, rather than waiting for the leave balance to run out.

Depending on the facts, remedies can include lost wages or benefits, additional damages, reinstatement or promotion, and reasonable legal fees and costs. Keep the leave request, employer notices, certifications and leave-balance records together before contacting the Wage and Hour Division or an attorney.