How to get paid while on FMLA | What can you not do while on FMLA

Published March 16, 2022 · · Updated June 17, 2024 · 5 minutes · by Kamerpower ·

How to get paid while on FMLA | What can you not do while on FMLA. The FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave. 

While employers give sick leave for employees who are ill, what can be done if a loved one is ill? Is there a way to get paid while on FMLA?

Conditions that Qualify You For FMLA

Eligible employees are entitled to:

• Twelve workweeks of leave in a 12-month period for:
  • the birth of a child and to care for the newborn child within one year of birth.
  • the placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement.
  • 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.
  • any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty;” or
• Twenty-six workweeks of leave during a single 12-month period to care for a covered servicemember with a serious injury or illness if the eligible employee is the servicemember’s spouse, son, daughter, parent, or next of kin (military caregiver leave).

How to get paid while on FMLA | What can you not do while on FMLA

Who can take FMLA leave?

In order to be eligible to take leave under the FMLA, an employee must:

• have worked 1,250 hours during the 12 months prior to the start of leave;
• work for a covered employer;
• work at a location where the employer has 50 or more employees within 75 miles; and
• have worked for the employer for 12 months. The 12 months of employment are not required to be consecutive in order for the employee to qualify for FMLA leave. In general, only employment within seven years is counted unless the break in service is
  • (1) due to an employee’s fulfillment of military obligations, or
  • (2) governed by a collective bargaining agreement or other written agreement.

How To Get Paid While on FMLA?

One may decide to use his/her aid leave obtained from previous sick leave, travel leave, or any other type of paid leave that he applied to. This is the only way to get paid while on FMLA leave. There are some US states that give financial assistance during FMLA if eligibility meets the state programs.

These state initiative programs chatter for an employee’s disabling health condition (State-based temporary disability programs); income replacement for an employee’s FMLA leave to care for a family member (State-based Paid Family Leave programs); and the Coronavirus emergency fund in 2020 under The Families First Coronavirus Response Act (FFCRA). Some organizations such as Growing Family Benefits can provide a loan to employees while they’re on FMLA unpaid leave.

Guidance materials about the FMLA Here.

What types of businesses/employers does the FMLA apply to?

The FMLA applies to all:

• public agencies, including local, State, and Federal employers, and local education agencies (schools); and
• private sector employers who employ 50 or more employees for at least 20 workweeks in the current or preceding calendar year – including joint employers and successors of covered employers.

What about military family leave? 

If you need to take time off to care for a sick or injured relative who is an active service member or veteran, you can take up to 26 weeks in a 12-month period. The service member or veteran must be either your:

• Spouse
• Parent.
• Next of kin 
• Child. 

You may also be eligible to take leave if your spouse, child, or parent is deployed to a foreign country for active duty. In this situation, you would be eligible for up to 12 weeks of leave to prepare for your family member’s departure. For more details on military family leave under the FMLA, you can read the Employee’s Guide to Military Family Leave from the Department of Labor.   

What can you not do while on FMLA leave?

You can’t use FMLA to file a ‘bunk’ lawsuit

Certain employees will always do whatever they can to take advantage of their employer. That means employees may look for opportunities to use FMLA as a case for a lawsuit. However, typically lawsuits with little to no standing will be thrown out in court. For example, employees fired for legitimate wrongful doing while on FMLA leave may file a suit claiming they’re protected because of FMLA leave.

You can’t take sick leave without legitimate medical issues

To take FMLA leave, the employee or the family member they’re caring for must be recovering from or receiving some kind of medical treatment. This isn’t an excuse to take 12 weeks of unpaid vacation per year. The certification process will typically weed out false claims.

Request FMLA leave without notice

An employer can most certainly deny an employee’s leave if they don’t give enough notice. Employees should give their management/HR at least 30 calendar days’ notice before they take their leave.

You can’t travel — in some cases

Employers might take disciplinary action against employees who seem to be abusing their leave. For example, if Joe had a contagious disease and was showing up in places like the beach on their social media, a member of the management may not be too happy about that.

Take leave if you are a key employee

Unfortunately, key employees are unable to take FMLA leave if the employer determines that there would be a substantial loss on account of the key employee taking time off from work. That means you could decline an employee’s leave if they are a member of management or have a mandatory position that must always be filled.

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