Only covered employers are required to comply with the FMLA. The FMLA defines “covered employer” to include:

• All public agencies, including local, State, and Federal employees, and local agencies (such as schools); and
• All private sector employers who employ 50 or more employees for at least 20 workweeks in the current or preceding calendar year. This includes joint employers and successors of covered employers.

To be eligible to take leave under the FMLA, an employee generally must:

• Work for a covered employer (see previous FAQ for definition of covered employers);
• Have worked 1,250 hours during the 12 months prior to the start of leave;
• Work at a location where the employer has 50 or more employees within 75 miles; and
• Have worked for the employer for 12 months.

Covered employers must provide an eligible employee up to a total of 12 workweeks of unpaid, job-protected leave in a 12-month period for the following reasons:

• The birth of a child, and to bond with the newborn child;
• The placement with the employee of a child for adoption or foster case, and to bond with that child;
• To care for an immediate family member (including spouse, child or parent, but not a parent in-law) with a serious health condition;
• To take medical leave when the employee is unable to work because of a serious health condition; or

• For qualifying exigencies arising out of the fact that the employee’s spouse, child, or parent is on covered active duty or call to covered active duty to status as a member of the National Guard, Reserves, or Regular Armed Forces.

The FMLA also provides certain other protections for covered servicemembers.

Under the FMLA, a “serious health condition” is defined as:

• Conditions requiring an overnight stay in a hospital or other medical care facility;
• Conditions that incapacitate the employee or employee’s family member for more than three consecutive days and have ongoing medical treatment (i.e., either multiple appointments with a healthcare provider or a single appointment and follow-up care such as prescription medication);
• Chronic conditions that cause occasional periods when the employee or employee’s family member are incapacitated and require treatment by a healthcare provider at least twice a year; and
• Pregnancy (including pre-natal medical appointments, incapacity due to morning sickness, and medically required bed rest).

Sometimes, yes. A “serious health condition” can include mental health conditions. For example, a mental health condition would qualify as a “serious health condition” if it requires inpatient care or continuing treatment by a healthcare provider, such as an overnight stay in a treatment center or continuing treatment by a clinical psychologist.

The DOL has guidance specifically on Mental Health Conditions and the FMLA here.

It is important that those with mental health conditions that qualify as a serious health condition get the help they need while having job security. As noted by the National Institute of Heath, an estimated one in five U.S. adults (about 52.9 million people in 2020) live with a mental illness, yet only about half of those people receive help.

An employer may require that the need for FMLA leave for a serious health condition be supported by a certification issued by a healthcare provider. The employer must allow the employee at least 15 calendar days to obtain the medical certification.

When an employer requests certification, the certification form that is used is generally the model form provided by the Department of Labor, found here.

No. The FMLA laws explicitly prohibit an employer from, among other things, the following:

• An employer is prohibited from interfering with, restraining, or denying the exercise of any FMLA right.

• An employer is prohibited from discriminating or retaliating against an employee or prospective employee for having exercised or attempted to exercise any FMLA right.

• An employer is prohibited from firing or in any way discriminating against anyone, whether or not an employee, for complaining about any unlawful practice under the FMLA.

For example, it would be unlawful for an employer to subject an employee to discipline or make their job more difficult in response to the employee taking or requesting regular or intermit FMLA leave. See Hite v. Vermeer Mfg. Co., 446 F.3d 858 (8th Cir. 2006) 

Under the FMLA, an employee may bring a civil lawsuit against an employer for violations. If you win a FMLA lawsuit, a judge or jury are generally allowed to award the following types of damages:

• Back pay
• Front pay
• Liquidated damages
• Attorneys’ fees and costs

Punitive damages and emotional distress damages are not available under the FMLA. See DeCicco v. Mid-Atl. Healthcare, LLC, 275 F. Supp. 3d 546, 564 (E.D. Pa. 2017).  However, those damages may be available under state-specific medical leave laws.

If you want to see more FMLA FAQs, it is recommended you review the DOL’s publicly available FAQs here. The DOL also has a formal Fact Sheet to help understand your rights, found here.