How to Apply for FMLA Leave from a Florida Employer

The Family and Medical Leave Act (FMLA) is a federal law, and Florida has not enacted its own family or medical leave statute. A Florida worker applies for FMLA leave under the same rules that apply across the country, administered by the U.S. Department of Labor. This is one of the federal workplace protections covered in Florida employment law: leave, wages, and worker rights. What follows is who qualifies, how much leave the law provides, and the steps to request it from a Florida employer.

Who qualifies for FMLA leave in Florida

Two questions decide eligibility: whether the employer is covered, and whether the worker meets the service thresholds.

A covered employer is a private employer with 50 or more employees in 20 or more workweeks in the current or previous calendar year. Public agencies, including Florida state and local government, and public and private elementary and secondary schools are covered regardless of how many people they employ, according to the Department of Labor’s Fact Sheet #28.

An employee is eligible after meeting three conditions set by 29 CFR § 825.110 and the statutory definition in 29 U.S.C. § 2611: employment with the employer for at least 12 months, at least 1,250 hours of service during the 12 months before the leave starts, and a worksite where the employer has at least 50 employees within 75 miles. The 12 months of employment need not be consecutive.

What FMLA covers and how much leave you get

Under 29 U.S.C. § 2612, an eligible employee may take up to 12 workweeks of unpaid leave in a 12-month period for the birth of a child, the placement of a child for adoption or foster care, the employee’s own serious health condition, or to care for a spouse, child, or parent with a serious health condition. Leave to bond with a new child must be taken within one year of the birth or placement, as the Department of Labor explains. A qualifying exigency arising from a family member’s military service also falls within the 12-week entitlement.

A longer entitlement applies to military caregivers. An eligible employee who is the spouse, child, parent, or next of kin of a covered servicemember with a serious injury or illness may take up to 26 workweeks of leave during a single 12-month period, also under 29 U.S.C. § 2612.

Leave does not have to be taken all at once. When it is medically necessary, an employee may use FMLA leave intermittently or on a reduced schedule, as Fact Sheet #28 describes. Intermittent bonding leave for a new child is available only when the employer agrees.

How to request FMLA leave from a Florida employer

An employee does not have to name the FMLA to request leave. The requirement is to give the employer enough information to recognize that the leave may qualify. When the need is foreseeable, such as a scheduled surgery or an expected birth, 29 U.S.C. § 2612(e) calls for at least 30 days of advance notice. When 30 days is not practical, notice must be given as soon as practical.

1. Confirm you meet the eligibility thresholds

   Check that your employer is covered and that you have worked at least 12 months and 1,250 hours in the prior year at a worksite with 50 employees within 75 miles. These thresholds are defined in 29 CFR § 825.110. A worker who falls short of any of the three is not eligible under federal law, though an employer may still grant leave voluntarily.

2. Give your employer notice of the need for leave

   Notify your employer as early as the need is known. For a foreseeable event, federal rules expect about 30 days of notice; for an unexpected condition, notice as soon as practical is enough, per Fact Sheet #28. Describe the reason clearly enough for the employer to see that the leave may qualify.

3. Provide medical certification if the employer requests it

   For leave tied to a serious health condition, the employer can require certification from a health care provider. Return the completed form within the time the employer allows, which is at least 15 calendar days. The employer supplies the form to use.

4. Review the employer's eligibility and designation notices

   After you request leave, the employer determines eligibility, tells you in writing whether the leave counts as FMLA, and states how much of your 12-week entitlement it uses. Keep these notices with your records.

Medical certification and the FMLA forms

For leave based on a serious health condition, an employer may ask for certification from the health care provider. The Department of Labor publishes optional model forms an employer can use for this purpose. An employee generally has at least 15 calendar days to return the completed certification, and additional time applies when the provider cannot finish it in time, as stated in Fact Sheet #28.

The employer, not the employee, completes the notice of eligibility and rights and responsibilities on form WH-381. That form tells the employee whether they are eligible and what the FMLA requires of both sides.

Job protection and benefits during leave

FMLA leave is unpaid, but it is job-protected. An employee who returns from FMLA leave has the right to the same job, or an equivalent one with the same pay, benefits, and working conditions, according to Fact Sheet #28. During the leave, the employer must keep the employee’s group health coverage in place on the same terms as if the employee had kept working.

An employer cannot interfere with, deny, or retaliate against a worker for requesting or using FMLA leave. Prohibited actions include assessing attendance points for FMLA absences, denying a promotion because of FMLA use, or cutting a worker’s shifts. Firing someone for taking protected leave can amount to an unlawful discharge, one of the categories described in Florida wrongful termination. Although the state otherwise follows at-will employment in Florida, which lets an employer end a job for almost any lawful reason, the FMLA is a federal exception that shields an eligible worker’s position during leave. Employees may use employer-provided paid leave, such as vacation, sick time, or other paid time off, at the same time as FMLA leave, and an employer may require it. The time off is then paid while the 12-week FMLA entitlement runs, as the Department of Labor describes. ## Where FMLA fits with Florida law Florida has no state family or medical leave statute, so the federal FMLA is the baseline for most Florida workers. The state does set rules in other workplace areas, such as Florida break laws for meal and rest periods, but leave for a serious health condition or a new child comes from federal law. The Department of Labor’s Wage and Hour Division administers and enforces the FMLA across the state. An employee who believes their FMLA rights were violated can file a complaint with the Wage and Hour Division or bring a private lawsuit in court. Because the coverage rules turn on employer size, a Florida worker at a small business with fewer than 50 employees may not be covered unless the employer chooses to offer leave. Public employees of Florida state and local government are covered regardless of the number of employees at the worksite.