Overview

The Family Medical Leave Act (FMLA) of 1993 entitles eligible employees of covered employers to take up to 12 weeks of unpaid, job-protected leave in a 12-month period for specified family and medical reasons. An eligible employee is entitled to 26 workweeks of leave to care for a covered service member with a serious injury/illness during a single 12-month period.

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F.A.Q.

1. Who is a covered employer?
FMLA applies to all employers with 50 or more employees for 20 or more work weeks during the current or preceding calendar year. All local, state and federal employers, including schools, are covered employers under FMLA.

2. What must an employee do to be eligible?

• Work for a covered employer
• Have worked for the employer for a total of 12 months (does not have to be consecutive)
• Have worked at least 1,250 hours over the previous 12 months; and
• Work at a location within the U.S. or any U.S. territory where at least 50 employees are employed within 75 miles

3. Who is a covered military member?
An employee’s spouse, son, daughter or parent on active duty or call to active duty status.

4. What are acceptable reasons for approved leave?

• Birth and care of the employee’s newborn child;
• Adoption or foster care by the employee;
• Care for an immediate family member (spouse, child or parent) with a serious health condition; or,
• Serious health condition of the employee.
• Qualifying exigency arising out of the fact that the employee’s spouse, son, daughter or parent is a covered military member on active duty (or has been notified of an impending call or order to active duty) in support of a contingency operation.
• Care for a covered service member with a serious injury or illness if the employee is the spouse, son, daughter, parent or next of kin of the service member.

5. What is a serious health condition?

• A period of incapacity or treatment with inpatient care in a hospital, hospice or residential medical facility and any subsequent treatment in connection with such care; or
• Continuing treatment by a health care provider including any period of incapacity due to:
• A health condition resulting in a period of incapacity of more than three consecutive full calendar days, and any subsequent treatment that also involves treatment two or more times, within 30 days of the first day of incapacity by and under the supervision of a health care provider or one treatment by a health care provider for a continuing regimen of treatment.
• Pregnancy or prenatal care.
• Any period of incapacity or treatment for such incapacity due to a chronic serious health condition which requires periodic visits (defined as at least twice a year) for treatment by a health care provider and may involve occasional episodes of incapacity (e.g., asthma, diabetes).
• A permanent or long-term condition for which treatment may not be effective (e.g., Alzheimer’s, a severe stroke, terminal cancer)
• Conditions requiring multiple treatments for restorative surgery or for a condition which would likely result in a period of incapacity of more than three full calendar days if not treated (e.g., chemotherapy or radiation treatments for cancer).

6. How much notice must the employee give for FMLA leave?
An employee seeking FMLA leave is required to provide 30-day advance notice when the need is foreseeable. If 30 days notice is not practical, such as because of a lack of knowledge of approximately when leave will begin, a change in circumstance or a medical emergency, notice must be given as soon as practical.

7. What is eligibility notice?
When an employee requests FMLA leave, or when the employer acquires knowledge that an employee’s leave may be FMLA qualifying, the employer must notify the employee of their eligibility to take FMLA leave within five business days. This notification must include if the employee is eligible for leave. If the employee is not eligible for leave, the notification must include at least one reason why the employee is not eligible.

8. What information can an employer require to determine an employee’s need for FMLA leave?
An employer may require an employee to provide medical certification supporting the need for leave due to a serious health condition of the employee or an immediate family member. This certification must be completed by the employee’s health care provider and provided within 15 days of notification by the employer.

9. Can an employer contact the health care provider?

• If an employee submits complete and sufficient certification signed by the health care provider, the employer may not request additional information from the health care provider.
• The employer (HR, leave administrator or management official – not the employee’s direct supervisor) may contact the health care provider for the purposes of clarification or authentication of the medical certification (either on initial certification or recertification).
• Employers may not ask for additional information beyond that of the certification form.

10. How is the 12-month period calculated under FMLA?
An employer may select one of four options for determining the 12-month period:

• The calendar year;
• Any fixed 12-month leave year such as a fiscal year, a year required by State law, or a year starting on the employee’s anniversary date;
• The 12-month period measured forward from the date any employee’s first FMLA leave begins; or
• A rolling 12-month period measured backward from the date an employee uses FMLA leave.

11. Does leave such as workers’ compensation or short-term disability count against FMLA entitlement?
FMLA leave and workers’ compensation or disability leave can run concurrently, provided the reason for the absence is due to a qualifying serious illness or injury and the employer properly notifies the employee in writing that the leave will be counted as FMLA leave.

12. Can accrued paid time be substituted for unpaid leave under FMLA?
Employees or employers may choose to use accrued paid leave, such as sick or vacation time, to cover some or all of the unpaid FMLA approved leave. The employer is responsible for designating if an employee’s use of paid leave counts as FMLA leave.

13. Is an employee entitled to health benefits while on an approved FMLA leave?
If group health insurance coverage was provided to the employee prior to the FMLA leave, the employer is required to maintain this coverage during the leave period. The employer can make arrangements for the employee to pay his or her share of the health insurance premium while on leave.

14. What is the employer’s responsibility upon the employee’s return from an FMLA approved leave?
An employer may require a fitness for duty certification prior to returning an employee to work from an FMLA approved leave. Upon return, the employee must be returned to the same position the employee held when leave commenced, or to an equivalent position with equivalent benefits, pay and other terms and conditions of employment.

15. What are an employer’s responsibilities for notifying employees of their rights and responsibilities under FMLA?
All covered employers must provide notice approved by the Secretary of Labor explaining rights and responsibilities under FMLA. The Department of Labor’s poster providing this notice can be found at www.dol.gov/esa/whd/fmla/finalrule/FMLAPoster.pdf. On January 28, 2008, new FMLA military leave requirements went into effect. A supplemental poster providing notice of these new requirements can be found at www.dol.gov/esa/whd/fmla/NDAAAmndmnts.pdf. Covered employers must also inform employees of their rights and responsibilities under FMLA. This may be part of the employer’s Employee Handbook or other Human Resources policies and procedures.

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Forms and Documents

Department of Labor – FMLA Regulations
Department of Labor – Clarification of “Son” or “Daughter”
Department of Labor Statistics
How to Prevent FMLA Abuse
Tips to Preventing Intermittent Leave Fraud
California Leave Entitlement Information Form
CFRA Form

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Links

United States Department of Labor

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