FMLA: What it is and what it isn't
- Speedy Speed Racer
- Mar 3
- 5 min read
People often use the term "FMLA" as a catch-all expression to mean any kind of personal leave, but the Federal Family Medical Leave Act doesn't cover many things that people think it does.
The problem comes when a worker needs to take leave for a medical condition or to take care of their family and finds out that they won't get everything they were counting on.
What is FMLA?
FMLA has three key pieces:
12 weeks of leave - You can take up to 12 weeks off of work if you're sick, have a baby, or need to take care of a family member.
Job protection - You can't be fired for taking leave (⚠️ as long as your company is subject to FMLA in the first place). When you come back to work, they have to give you a similar job for the same pay.
Keep your insurance - Your employer can't change your insurance costs or cancel your plan while you're on leave. (You still have to pay your portion, though.)
⚠️ Companies with fewer than 50 employees aren't subject to FMLA. As cruel as it may seem, smaller businesses can't always afford to hold your position for up to three months.
It's helpful to keep in mind that FMLA is a floor, not a ceiling. An employer can be more generous, including:
Giving more than 12 weeks of leave
Following FMLA guidelines, even when they don't have to
Being chill about doctor's notes and the definition of a "family member"
Paying you
FMLA is a floor, not a ceiling. An employer can be more generous.
What isn't FMLA?
FMLA doesn't say anything about pay.
There is no federal law that requires companies to pay their employees while they're on leave. Thankfully, many states have paid family, parental, and/or disability leave programs that will pay someone while they're on at least some types of leave that are also covered by FMLA.
FMLA doesn't guarantee paid leave, but some states have paid leave programs.
How do state leave programs work?
It's different in each state that offers it, but state paid leave falls into three categories. Depending on the state, these categories may overlap:
Parental leave - available to either parent to bond with a new child in the family.
The child is often a newborn, but could also be joining the family through adoption or fostering.
Disability - only someone who can't work because of their own physical or mental illness or injury can take disability leave.
Caregiver - time off for the family member who is ill or injured.
The family member could be a newborn or a birth parent with complications from pregnancy or a difficult delivery.
Who can take it? | Who can't take it? | Who's sick/injured? | |
Parental bonding | New parents | Parents of a child who isn't new to the family Caregivers who aren't parents | No one! Neither the birth parent nor the baby need to be ill to take bonding leave. |
Disability | A worker who is too sick or injured to work | Anyone who isn't disabled, including people caring for them | The worker |
Caregiver | Family member of a sick or injured person | A non-relative caregiver | A family member (could be a birth parent or baby from complications of pregnancy or childbirth) |
How does State Parental Leave work with FMLA?
Since most people who are eligible for State leave are also covered under FMLA, State leave offers rights or benefits in addition to FMLA. These extra rights or benefits might include:
Payment, but not necessarily for the full 12 weeks
Longer job protections if you combine two types of leave (usually disability + parental bonding leave)
Payment and/or protections for a broader definition of "family"
Not every state leave program includes all of the benefits above. Click here to learn more about the state parental leave programs in your state.
What's the difference between sick time and paid parental leave?
Paid sick time, often called Paid Sick and Safe Time (PSST) is meant for short-term illness. In many states it can also be used to deal with the aftermath if you're the victim of a crime or domestic violence.
Sick time is different from parental leave in the following ways:
Sick time | Paid leave programs |
Usually relates the the worker's own health or safety | Often relates to the worker's family (except disability) and may not require an illness/injury (as with bonding) |
Full pay rate | Pays a percentage of income |
Short-term absences (usually less than 1-2 weeks) | Long-term absences (2 weeks to 3 months or more) |
Accrues up to an annual limit, but may be front-loaded. Unused time often carries over to the following year. | Does not accrue or roll over. The same amount is available to all workers in a state who meet minimum requirements. |
May be combined with vacation time under some time off policies | Other types of PTO usually don't coincide. Paid vacation or sick time is taken before/after, but not during paid leave. |
Doesn't usually require a doctor's note or documentation that someone is sick or in danger | Usually requires documentation to confirm eligibility |
What's the difference between State parental leave/disability and private disability insurance?
Private disability insurance is one way that companies can be more generous than their state disability programs. Private disability plans may pay out a higher portion of income while someone is on leave and/or may pay benefits for longer than State programs.
Usually private disability policies only pay when the worker themself is disabled, meaning non-birth parents, family members, and fully-recovered birth parents can't use it for bonding or caregiving. If you plan to use private disability for parental leave, check your coverage of pregnancy and childbirth-related conditions as well as coverage for caregiving and bonding.
Also keep in mind that the employer/policy holder doesn't control the insurance company's practices. They will work on their own time and may require lots of annoying documentation. You will have little control if they decide to gate their coverage on State programs, doctor's notes, and other BS.
Usually private disability policies only pay when the worker themself is disabled, meaning non-birth parents, family members, and fully-recovered birth parents can't use it for bonding or caregiving.
How does State disability combine with private disability insurance?
State parental leave and disability payments aren't usually affected by payments directly from the employer or through a private disability policy.
On the other hand, many private disability policies require that the applicant first apply to state parental leave or disability programs (if they exist) before insurance will approve the claim. This saves the insurance company money so they only have to "top up" the state benefits to the private disability's maximum weekly benefit.
For example, let's say your state pays up to $1000 per week and your insurance company pays up to $2000 per week. The insurance company will make you apply to the state for the first $1000 and they will only pay you the remaining $1000 up to their own weekly maximum.
If the employer "tops up" state parental leave to the full salary, you may not know how much to pay someone until after their claims have been approved. This can take weeks to months.
Many employers let employees use up their ordinary PTO while the claims are processing so that the employee doesn't have an interruption in income and the company has a check to deduct benefit premiums from.
How can an employer be more generous than State programs?
Like FMLA, state leave programs are a floor, not a ceiling. Employers can be more generous if they choose.
Here are some ways that employers supplement state disability programs:
Offer private disability insurance with a higher weekly limit.
Offer more than 12 weeks of leave
"Top up" paid family leave or disability programs up to full salary, or pay the full salary in addition to these benefits.
Make sure that team members get the same benefits and pay regardless of where they live
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