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Your right to unpaid time off of work for illness, injury or to care for a new child

Produced by Massachusetts Law Reform Institute & Greater Boston Legal Services
Reviewed April 2022

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Can I take time-off of work for a serious illness, injury or to care for a new child?

You may be eligible for paid time off for:

  • illness,
  • injury or
  • to care for a new child.

Or, you may want to use the 12 weeks of unpaid time the Family Medical Leave Act (FMLA) gives you if you are not eligible for paid time off.

You can take unpaid FMLA leave if:


  • You are eligible. You are eligible if:
    • your employer has at least 50 employees, and
    • you worked for your employer at least 1,250 hours in the last 12 months. This is about 24 hours each week.

What is a serious illness for FMLA leave?

The health condition must be so serious that

cannot work for more than 3 days in a row.


The illness needs to be serious enough that:

  • You need to stay at a hospital.
  • You have two visits to a doctor. Or,
  • You have one visit to a doctor and then follow-up treatment.

Poor health

Your health must be so poor that:

  • You need treatment for a problem that will not go away. For example, if the problem is chronic. Or,
  • You need treatment for a long time before you get better.

Pregnancy and children

  • For the birth or placement of a child.
  • To bond with a newborn or adopted child. Or,
  • To care for a child with a serious health condition

Who are my immediate “family members” for FMLA leave?


  • spouse,
  • children under 18 years old, and
  • your parents.

Your spouse’s parents are not covered.

When do I ask for FMLA leave?

Foreseeable leave

If you know ahead of time that you need leave, you must give your employer 30 days’ notice. The birth or adoption of a child or planned surgery are foreseeable needs for leave.

Unforeseeable leave

When you need emergency or unplanned leave tell your employer notice as soon as you can.

Ask for the leave in writing if you can. But your employer cannot reject your request if you do not ask in writing. You do not need to use the words “Family Medical Leave Act” or “FMLA.” But you need to let your employer know that you have a medical reason for asking for leave.

What kind of proof can my employer ask for?

Your employer can ask for a letter from a doctor.

If you take leave:

  • For your health, your employer can ask for a letter that says you have a serious health condition. But, your employer cannot see your medical records.
  • To take care of a family member, your employer can ask for a letter that says that your family member needs you as caretaker.

Your employer can ask for a 2nd or even a 3rd medical opinion. Your employer must pay for the 2nd or 3rd opinion.

Your employer can pick the heath care provider who gives the 2nd or 3rd opinion. But, your employer cannot ask a health care provider who has regular contracts with your employer.

Your employer can also ask your doctor to write another letter after you have been on leave for a while.

When do I need to give my employer proof of the illness or injury?

Leave you know you will need

You must give your employer at least 30 days’ notice for foreseeable leave. If your employer asks for proof, give them the proof before you take the leave.

Emergency leave

For unforeseeable or emergency leave, give your employer proof of the illness or injury within 15 days.

Is FMLA leave paid?

FMLA leave is unpaid.

But, you may be able to use Paid Leave to cover your time off.

Can I use paid sick, vacation, or personal time during my leave?

You can use paid sick, vacation, and personal time that you have earned. 

Your employer can require you to use paid vacation, sick or personal time before you use FMLA time. If your employer makes you use up your paid time off first, the rest of your FMLA leave is unpaid time off.

Do I need to take the leave all at once?

You can take your 12 weeks of FMLA leave:

  • all at once,
  • a little each week by working part-time, or
  • at several different times during the year if you have different qualifying reasons.

Does workers compensation leave time count against my FMLA leave?

It can. Workers compensation can cover the same weeks as FMLA leave if the injury that the workers compensation is covering is serious enough. Talk to your union, human resources department or a lawyer to find out more.

What happens to my seniority, retirement, health and other benefits while I am on leave?

You will not lose the benefits or seniority you already earned when you are out on leave. But, you usually do not earn benefits while you are out. Check your employee handbook to see if your employer has a policy that says you will earn benefits.

Can I go back to my old job?

When your FMLA time is over you can return to:

  • your same job or
  • a similar job that has similar status, pay, and seniority.

But, your employer does not have to give you your old job back if they did lay-offs and your old job is gone. They do not have to create a new job for you either.

Your employer can ask you to give them a:

  • “fitness for duty” certificate signed by your doctor or
  • take a medical exam before letting you back at work.

What can I do if my employer refuses to give me leave, or they retaliate against me for taking leave?

It is illegal for your employer to:

  • fire you, or
  • take any adverse employment action against you

because you took FMLA leave.

If your employer violates your rights talk to a lawyer.  You may be able to file:

  •  a private lawsuit, or
  • a complaint to the U.S. Department of Labor’s Wage and Hour Division (1-866-487-9243).

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You may be able to get free legal help from your local legal aid program. Or email a question about your own legal problem to a lawyer.

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