Family and Medical Leave Act for Non-Federal Employees

The Family and Medical Leave Act (FMLA) provides important protections for eligible workers.  It allows them to take up to 12 weeks of unpaid leave in a 12-month period to care for a spouse with a serious medical condition, or 26 weeks to care for an eligible servicemember spouse with a serious injury or illness.   It also allows an employee to take job-protected leave for the birth or adoption of a child or to care for a child who has a serious health condition, regardless of whether the child is biologically related to the employee.  At the end of the FMLA leave, workers are entitled to resume their same or an equivalent job.

This guidance addresses the rights that non-federal employees and their same-sex spouses should expect to receive under the FLMA now that the Defense of Marriage Act (DOMA) has been struck down. Rules for federal employees differ slightly. See the guidance section on Federal Employees for information specific to employees of the federal government. You may also have additional rights under state law. For more information, consult with a lawyer who specializes in employment law about rights you may have in your state.


TABLE OF CONTENTS

Who qualifies for FMLA leave?

Which employers are covered by the FMLA?

How does being married matter for FMLA leave?

How do I apply for FMLA leave?

Which non-federal employees will be recognized as married for FMLA leave?

How can I find out more about FMLA rights of non-federal employees?


Who qualifies for FMLA leave?

Any employee who has worked for a covered employer at least 1,250 hours during the 12-month period before the start of the leave is eligible for FMLA leave, so long as the employee has worked for a covered employer for at least a year. 

Back to top.


Which employers are covered by the FMLA?

The FMLA covers:

  • Public employers, including state, local or federal government, or a public school.  See the guidance for Federal Employees for more information specific to FMLA coverage for federal civilian employees. 
  • Private sector employers with 50 or more employees working for at least 20 workweeks (within a 75-mile radius of ther worksite, if the employer has more than one worksite) in the current or preceding calendar year.

Back to top.


 How does being married matter for FMLA leave?

The FMLA allows eligible employees of covered employers to take unpaid leave to care for a spouse who has a serious health condition. There are additional and sometimes expanded leave rights for spouses of current and former servicemembers.

Back to top.


How do I apply for FMLA leave?

If you want to use FMLA leave, you must give 30 days advance notice to your employer if possible.  Where that’s not possible, you must let your employer know as soon as you can.  If you need to miss work under FMLA leave without advance notice, you need to follow the usual notification procedures for absences from work. You also will need to give enough information to your employer for your employer to decide whether the FMLA applies to your situation.  If you encounter problems, you can contact the Wage and Hour Division at the Department of Labor, or an attorney who specializes in employment law. 

To find the Wage and Hour Division office nearest you, go to: http://www.dol.gov/whd/america2.htm.

Back to top.


 Which non-federal employees will be recognized as married for FMLA leave?

  • If you live in a state that respects your marriage:  You will be considered married for FMLA purposes, and will be entitled to take FMLA leave to care for a sick spouse.
  • If you live in a state that does not respect your marriage: Both the Department of Labor and the U.S. Office of Personnel Management have proposed changes to the regulations governing FMLA eligibility that would allow same-sex marriage couples in any state to access FMLA leave, as long as their marriage was legally entered into in the state where it was celebrated. We hope that these changes will be implemented by the end of this year.  If you encounter problems, contact one of the legal organizations listed below.

Back to top.


 How can I find out more about FMLA rights of non-federal employees?

See Department of Labor, Wage and Hour Division, Family and Medical Leave Act: http://www.dol.gov/whd/fmla/#.UJRK2Ib-ocs

Back to top.


 Contact:

American Civil Liberties Union

Gay & Lesbian Advocates & Defenders

Lambda Legal

National Center for Lesbian Rights

This series of fact sheets produced together by:

American Civil Liberties Union | Center for American Progress | Family Equality Council | Freedom to Marry | Gay & Lesbian Advocates & Defenders | Human Rights Campaign | Immigration Equality | Lambda Legal | National Center for Lesbian Rights | National Gay and Lesbian Task Force | OutServe-SLDN.