• image description
  • image description
  • image description
  • image description
  • image description

FMLA Leave Be Counted against You Prior to passage of the federal Family and Medical Leave Act, or FMLA, workers in the United States were frequently faced with the very real possibility of losing their job and/or job related benefits when faced with a family or medical crisis.

Fortunately, that concern has been eliminated for workers who are eligible to take leave under the FMLA when a family emergency or medical crisis requires and employee to take an extended period of time off work.

Though you may no longer need to worry about losing your job because of the FMLA, does the FMLA also protect specific aspects of your job?

For example, can your FMLA leave be counted against you for your bonus?


The FMLA is a federal law that allows an eligible employee who works for a covered employer to take up to 12 weeks of unpaid, job protected, leave for certain family and medical reasons.

While an employee is out on FMLA leave the employee’s position (or one equal to it) must remain open for the employee’s return and the employee’s group health insurance benefits must continue under the same terms and conditions as prior to the leave.

In short, if you qualify for FMLA leave your employer cannot fire you because of the leave and you get to keep your medical coverage while on leave.

Many employers, however, also offer bonuses to employees based on job performance.

A bonus may be based on a virtually infinite number of factors; however, common factors include things such as sales volume, total time worked for the company, or number of days without missing work.

Can your employer count your FMLA leave against you for purposes of determining your eligibility for a bonus, or deny your bonus based on you taking FMLA leave?

The answer to that is “yes” under certain circumstances.

Your employer may deny you a bonus if the bonus is based on achieving a specific goal as long as the employer treats taking FMLA leave the same as taking non-FMLA leave.

For instance, if a bonus is based on days worked and your employer does not count the days you were out on FMLA leave toward the “days worked” goal, your employer must also not count days other employees missed because they were using vacation or sick days.

By way of illustration, assume that both you John (another employee) missed 15 days of work because of family emergencies. You used unpaid FMLA leave for your 15 days but John had 15 days of paid vacation accrued so John used his 15 days of paid vacation instead of using FMLA leave.

Your employer offers a bonus to all employees who have missed fewer than 10 days of work during the year.

Your employer must either deny the bonus to both you and John because you did miss more than 10 days or work this year or award both of you the bonus by counting both vacation and FMLA leave as days worked for purposes of determining eligibility for the bonus.

What your employer cannot do is award John the bonus and deny you the bonus.

If you have additional questions or concerns about FMLA leave or employment law in general, contact the experienced Florida employment law attorneys at Celler Legal, P.A. by calling 954-716-8601 to schedule your appointment.