Family and Medical Leave Act (FMLA) for unpaid time off

Also in
Show Endnotes
Greater Boston Legal Services & the Massachusetts Law Reform Institute

The Family and Medical Leave Act (FMLA) lets you take up to 12 weeks of unpaid, job protected time off of work. It is a federal law.

In this article, learn whether you are covered, how to get and use time off (“leave”), and answers to other questions.

If you are in Massachusetts, you might qualify for the Paid Family and Medical Leave Act (PFML). This law lets you take up to 26 weeks of paid time off work for family and medical reasons.

Am I eligible for unpaid time off through FMLA?

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

You can take unpaid FMLA leave if:

  • You have a serious health condition,
  • Your family member has a serious health condition, or
  • You have a new child.


  • You are eligible. You are eligible if:
    • You work for a covered employer, and
    • You’ve worked for your employer for 12 months and 
    • You’ve worked for your employer at least 1,250 hours in the last 12 months. This is about 24 hours each week.
    • (for private employers) you work at a location where your employer has at least 50 employees within 75 miles of your worksite.

Covered employers are:

  • Government agencies
  • Schools
  • Private employers with at least 50 employees. 
What is considered a serious health condition for FMLA leave?

The health condition must be so serious that you or your immediate family member:

  • Need to stay overnight at a hospital, or
  • Cannot work for more than 3 days in row and
  • Have ongoing medical treatment. 

Ongoing medical treatment can mean:

  • 1 visit to the doctor within 7 days of when you couldn’t work and follow up treatment like a prescription, or 
  • 2 visits to the doctor within 30 days of when you couldn’t work. 

Serious health conditions also include:

  • Chronic or ongoing health problems that make you or your immediate family member unable to work for periods of time and that you need to see a doctor twice a year for, and
  • Pregnancy. 
Who are my immediate “family members” for FMLA leave?

Your immediate family members are your

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

Your spouse’s parents are not covered.

What does it mean to have a new child for FMLA leave?

If you are eligible, you can take FMLA leave:

  • For the birth, adoption, or foster placement of a child, or
  • To bond with a newborn or adopted child.

You must take this leave within the first 12 months of birth, adoption or placement. 

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 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.

When does my employer have to tell me if I’m eligible for FMLA?

Within 5 business days after you ask for leave. They must tell you  in writing. If the answer is no, your employer must give you at least one reason why you’re ineligible.  

Along with the eligibility notice, your employer must also tell you in writing what your rights and responsibilities are under FMLA. See these example notices [PDF].

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 healthcare provider who gives the 2nd or 3rd opinion. But, your employer cannot ask a health care provider who they have regular contracts with.

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?

If your employer asks for a medical certification, they must give you 15 calendar days to get it. If your employer finds the certification incomplete, they must tell you in writing what else they need to find it complete and give you 7 calendar days to fix it. 

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 (although in many cases, your employer must agree to scheduling it this way beforehand), or
  • at several different times during the year if you have different qualifying reasons.
Does workers’ compensation count against my FMLA leave?

It can. Workers’ compensation can cover the same weeks as FMLA leave if the injury 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” or negative 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).
What is the difference between PFML and FMLA?

Both laws cover similar situations. But,

  • The Paid Family and Medical Leave Act (PFML) is a Massachusetts state law. 
  • The Family and Medical Leave Act (FMLA) is a federal law. It is for unpaid time off.

They have different rules for who can get leave and which employers must offer their employees leave. For example, FMLA only applies to businesses with over 50 employees, public sector agencies, and schools.

Learn more in this video from the state of Massachusetts, or see their page How PFML is different than FMLA.

Remote video URL
Resource Boxes
More Resources
More FMLA Information
Time Off Work_FMLA_More Info

Fact sheet: The Family and Medical Leave Act (U.S. Department of Labor)

FMLA Frequently Asked Questions (U.S. Department of Labor)

Types of time off (leave)
Time Off Work_FMLA_Time Off Types

Learn what other types of leave there are at Time Off Work for Medical and Family Reasons.


Was this page helpful?