Can employer deny FMLA?

UPDATED: Nov 1, 2012

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Can employer deny FMLA?

What do I have to do to make sure I am eligable for FMLA?

Asked on November 1, 2012 under Employment Labor Law, Missouri


B.H.F., Member, Texas State Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

If your employer is subject to FMLA and you qualify, then your employer cannot deny your FMLA requrest.  In order for you to even be eligible for FMLA, you must have worked for the company over the past 12 months and have worked at least 1,250 hours.  The second requirement is that you request the leave for a permissible reason.  Reasons include:

  • the birth of a child
  • the adoption of a child;
  • to care for the employee’s spouse, child, or parent who has a serious health condition;
  • a serious health condition that makes the employee unable to perform the essential functions of his or her job.

Where most people run into issues is paperwork.  They think that FMLA is automatic-- which it is not.  Your employer should have forms for you to formally request FMLA time.  Many people don't think about requesting the paperwork until after they are already at risk of losing their jobs.  So first step is to get the paperwork and fill it out.

The second area that trips most workers is the reason for the FMLA.  FMLA doesn't cover funeral leave or minor illnesses.  Before you request the leave, make sure that your doctor is willing to certify that your medical condition is such that you cannot perform the essential functions of your job.  If your doctor does not certify that you or the loved one have a serious condition, then your employer can deny your FMLA leave request.


M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

First you have to be employee of a "covered" employer.  The FMLA applies to any employer in the private sector who engages in commerce, or in any industry or activity affecting commerce, and who has 50 or more employees each working day during at least 20 calendar weeks in the current or preceding calendar year. The law also covers all public agencies (state and local governments) and local education agencies (schools, whether public or private). These employers do not need to meet the "50 employee" test. Title II of FMLA covers most federal employees, who are subject to regualtions issued by the Office of Personnel Management. To be eligible for FMLA leave, an individual must meet the following criteria:

  • Be employed by a covered employer and work at a worksite within 75 miles of which that employer employs at least 50 people;
  • Have worked at least 12 months (which do not have to be consecutive) for the employer; and
  • Have worked at least 1,250 hours during the 12 months immediately before the date FMLA leave begins. 
  • An employer need not count employment prior to a break in service of seven years or more unless there was a written agreement between the employer and employee (including a collective bargaining agreement) to rehire the employee, or the break in service was due to fulfillment of military service in the National Guard or Reserves. Good luck.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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