FMLA - Family and Medical Leave Act

The FMLA gives eligible employees of a covered employer the right to take up to 12 weeks of unpaid leave, or paid leave if it has been earned, in any 12-month period:

• for the birth of a child or the placement of a child with the employee for adoption or foster care,
  
  
• if the employee is needed to care for a family member with a serious health condition,
  
  
• if the employee’s own serious health condition renders the employee unable to do his/her job,
  
  
• for any qualifying exigency arising out of the fact that the employee has a spouse, son, daughter, or parent that is on active duty, or has been notified of an impending call or order to active duty, in the Armed Forces in support of a contingency operation.

The FMLA also gives eligible employees who are a spouse, child, parent, or the nearest blood relative of a covered service member the right to take up to 26 weeks of unpaid leave in a single 12-month period to care for the service member.

Note: During a single 12-month period, an eligible employee is entitled to a combined total of 26 workweeks of leave for the birth or placement of a child with the employee for adoption or foster care, to care for a family member with a serious health condition, for the employee’s own serious health condition, for any qualifying exigency related to active duty, and to care for a covered service member.  This does not limit the availability of FMLA leave during any other 12-month period.

Upon return from leave, the FMLA entitles employees to be restored to the same or an equivalent position with equivalent pay, benefits, and working conditions.

 

Key Definitions

An eligible employee has worked for at least 12 total (but not necessarily consecutive) months for a covered employer, and put in at least 1,250 hours of service with that employer during the previous 12 months.

A covered employer under FMLA employs 50 or more employees, at one or more sites within a 75-mile radius, for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year.

Covered family members include a spouse, son, daughter, or parent.

• A spouse means a husband or wife as defined or recognized under state law for purposes of marriage.  It includes common law marriages in states where it is recognized, but does not include unmarried domestic partners.
  
  
• A son or daughter is defined as a biological, adopted, foster or step child, or a legal ward who is under 18 years old, or is 18 or older and incapable of self-care because of a mental or physical disability.
  
  
• A parent is a biological parent or someone who stood in place of a parent to an employee when the employee was a son or daughter. It does not include parents “in-law.”  Although some states allow an employee to take time off for other family members, the Act does not require family leave for a person in any other family relationship.

In cases of adoption, FMLA requires the use of licensed adoption agencies; foster care requires state action, rather than just an informal arrangement to take care of another person’s child.

A covered service member means a member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness.

Incapable of self-care means that the individual requires active assistance or supervision to provide daily self-care in several of the “activities of daily living.”  These include grooming, dressing, eating, cooking, cleaning, shopping, taking public transportation, paying bills, maintaining a residence, and using telephones and directories.

Mental or physical disability means an impairment that substantially limits one or more of the major life activities of an individual.

A serious health condition is defined as an illness, injury, impairment, or physical or mental condition that involves:

1. Any period of incapacity or treatment in connection with or consequent to inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical care facility.
   
   
2. Any period of incapacity requiring absence from work, school, or other regular daily activities of more than three calendar days, that also involves continuing treatment by a health care provider.  Note: The three-day requirement is waived for treatment for early stage cancer, physical therapy after a hospital stay, severe arthritis, or for prenatal care.
   
   
3. Continuing treatment by a health care provider for a chronic or long-term health condition that is incurable or so serious that, if not treated, would likely result in a period of incapacity of more than three calendar days or for prenatal care.

Examples of serious health conditions include, but are not limited to: heart conditions, back conditions, respiratory conditions, nervous disorders, arthritis, pregnancy or pregnancy-related complications, appendicitis, emphysema, and most cancers.

A serious injury or illness in the case of a member of the Armed Forces, including a member of the National Guard or Reserves, means an injury or illness incurred by the member in the line of duty on active duty in the Armed Forces that may render the member medically unfit to perform the duties of the member’s office, grade, rank, or rating.

Determining A 12-Month Period

The FMLA gives employers four methods for computing the 12-month period in which employees may receive 12 weeks of FMLA leave.  An employer is allowed to choose any of these methods, as long as it is applied consistently and uniformly to all employees.

1. The calendar year.
   
   
2. Any fixed 12-month “leave year,” such as a fiscal year, a year required by state law, or a year starting on an employee’s anniversary date.
   
   (Under these two options, employees would be entitled to take up to 12 weeks of FMLA leave at any time in the fixed 12-month period selected.  Example: An employee could take 24 consecutive weeks of FMLA leave by scheduling 12 weeks of leave at the end of the calendar year and 12 weeks at the beginning of the following year.)
   
   
3. The 12-month period measured forward from the date an employee’s first FMLA leave begins.  An employee would be entitled to 12 weeks of leave during the year beginning on the first date FMLA leave is taken.  The next 12-month period would begin the first time FMLA leave is taken after completion of any previous 12-month period.
   
   Example: An employee takes a 12-week FMLA leave beginning on September 1 of one year.  He/she would not be eligible for another 12 weeks of leave until September 1 of the following year.  If four weeks are taken beginning October 1 of that following year, the employee has until October 1 of the year after that to use the remaining eight weeks.
   
   
4. A “rolling” 12-month period measured backward from the date an employee uses any FMLA leave.  Each time an employee takes FMLA leave, the remaining leave entitlement would be any balance of the 12 weeks which has not been used during the immediately preceding 12 months.
   
   Example: If an employee used four weeks beginning February 1 of one year, four weeks beginning June 1 of the same year and four weeks beginning December 1 of the same year, the employee would not be entitled to any additional leave until February 1 of the following year.  However, on February 1 of the following year, the employee would only be entitled to four weeks of leave; on June 1 of the same year, the employee would be entitled to an additional four weeks, etc.
   
   Note: The “rolling” method is the best way to prevent “stacking” of back-to-back leave entitlements.

In order to change calculation methods, an employer must give at least 60 days’ notice to all employees, and the transition must allow employees to retain the full 12 weeks of leave under whichever method affords the greatest benefit to the employees.  It is a violation to implement a new method in order to avoid the Act’s leave requirements.

 

Types Of Leave

An intermittent or reduced leave schedule may be taken for the serious health condition of the employee or employee’s family member.  The employer and employee must agree first before either of these leave schedules may be used for the birth or placement of a child.  Both active duty leave and service member family leave can be taken on an intermittent or reduced leave basis when medically necessary.

Intermittent leave is taken in separate blocks of time as needed, rather than in one continuous period of time.  Periods of leave may range from an hour to several weeks.

A reduced leave schedule reduces the usual number of hours worked per week or day.

There is no limit on the size of an increment of leave when an employee takes intermittent leave or leave on a reduced leave schedule.  However, leave increments may be limited to the shortest period of time (one hour or less) that the company payroll system uses to account for absences.

If an employee’s work schedule varies from week to week, the average weekly hours worked during the 12 weeks prior to the start of the FMLA leave will be used to calculate the employee’s “normal” work schedule.

For part-time employees and those who work variable hours, FMLA leave entitlement is calculated on a proportional basis.  Example: An employee normally works 30 hours per week and reduces his hours to 20 per week on a reduced leave schedule.  The 10 hours of FMLA leave equals one-third of a week of FMLA leave each week.

 

Employee Transfer

If an employee requests intermittent leave or a reduced work schedule for planned medical treatment, including the medical treatment of a covered service member, the employer may temporarily transfer the employee to an available alternative position under these conditions.

• The position has equivalent pay and benefits.  Employers may increase the pay and benefits of an existing alternative position to make them equivalent to the employee’s regular job, or transfer the employee to a part-time job with the same hourly rate of pay and benefits, provided the employee is not required to take more leave than is medically necessary.
  
  
• The employee is qualified to perform the job. 
  
  
• The alternative position accommodates recurring periods of leave better than the employee’s regular job.

A job transfer does not require the employee’s agreement, and there are no limitations on the nature of the alternative position.  However, before selecting an alternative position, the employer should consider the provisions of the Americans with Disabilities Act (ADA) which might require accommodating the employee’s health condition.

Restoration To Prior Position

The FMLA requires that after a leave, an employee must be restored to the position he/she held when the leave began, or to an equivalent position, with equivalent benefits, pay, and other terms and conditions of employment.  An equivalent position must involve the same pay, benefits, and working conditions.  It should offer the same or substantially similar duties and responsibilities, and must include substantially equivalent skill, effort, and authority.

If special qualifications required for the position have lapsed during the employee’s leave, the employee must be given a reasonable opportunity to fulfill the requirements after returning to work.  The employee must be restored to the same work site from which he/she started leave, or to a geographically proximate work site.

If the employees’ original work site has been closed or moved, and other employees were transferred to another work site, the employee must have the same rights for transfer as would have been available had the employee not taken leave.  The employee is also entitled to be returned to the same shift or equivalent schedule, and have the same opportunity for bonuses, profit sharing, and other non-discretionary payments.

The requirement that a restored employee receive the same or equivalent pay and benefits does not extend to intangible or unmeasurable aspects of the job, such as chances for promotion.

Equivalent Pay

An employee is entitled to any unconditional pay increases which may have occurred during the FMLA leave period, such as cost of living increases.  Pay increases conditioned upon seniority, length of service, or work performed would not have to be granted unless the employer does so for other employees on “leave without pay.”  Thus, all pay increases would be granted based on the employee’s seniority, length of service, work performed, etc., excluding the period of unpaid FMLA leave.

An employee is also entitled to be restored to a position with the same or equivalent pay premiums, such as a shift differential.  If an employee departed from a position averaging ten hours of overtime each week, he/she is ordinarily entitled to such a position on return from FMLA leave.

“Key” Employees

An employee who qualifies as a key employee may be denied restoration to employment under very limited circumstances.  An employer may use the “key” employee designation:

• for the highest paid 10% of all salaried and non-salaried, eligible and ineligible, employees (calculated from year-to-date earnings as of the date leave is requested); or
  
  
• if the employee’s restoration to employment after taking leave would cause substantial and grievous economic injury.

Employers must inform employees in writing of their “key” employee designation at the time FMLA leave is requested or shortly after it starts.  Notice must also:

• fully inform the employee of the potential consequences with respect to reinstatement and maintenance of health benefits;
  
  
• explain the basis for the finding that substantial and grievous economic injury will result; and
  
  
• provide the employee a reasonable time in which to return to work, taking into account the circumstances, such as the length of the leave and the urgency of the need for the employee to return.

Medical Certification

If an employee requests leave for the serious health condition of a spouse, child, or parent; for him/herself; or to care for a covered service member, an employer may require that the employee provide certification, in a timely manner, from the health care provider of the person with the condition.  Certification must include the following facts:

1. The date the serious health condition began;
   
   
2. The probable duration of the condition;
   
   
3. Appropriate medical facts regarding the condition;
   
   
4. If the employee is needed to care for a family member, a statement to that effect and approximately how long the employee will be needed.
   
   
5. If the employee has a serious health condition, that it renders him/ her unable to perform the functions of the job;
   
   
6. In the case of intermittent leave for planned medical treatment, the dates on which treatment is expected to be given and the treatment’s duration;
   
   
7. In the case of intermittent or reduced schedule leave, the medical necessity for that type of leave;
   
   
8. In the case of intermittent or reduced schedule leave for family members, that this type of leave is necessary for the care of the family member, or will assist in their recovery, and the expected duration and schedule of the leave.

Second Opinion

Employers may require the employee to obtain a second medical opinion, at the employer’s expense.  The second health care provider may not be employed on a regular basis by the company.  If the opinions of the first and second health care provider differ, the employer may require a third opinion, again at the employer’s expense, from a health care provider mutually agreed upon by the employer and employee.  The third opinion is final and binding.

 

Active Duty Certification

An employer may require that a request for leave for a qualifying exigency be supported by a certification issued at such time and in such manner as the DOL may by regulation prescribe.  If the DOL issues a regulation requiring such certification, the employee shall provide, in a timely manner, a copy of such certification to the employer.

Failure To Provide Certification

If an employee fails to provide timely certification (where possible) and the need for the leave was foreseeable, leave may be denied until the required certification is provided.  If the need for leave is not foreseeable, the employee must still attempt to provide the certification as soon as possible under the circumstances.

Benefits

An employee cannot lose any employment benefit accrued prior to the start of FMLA leave.  Benefits include group life insurance, health insurance, disability insurance, sick leave, annual leave, educational benefits, and pensions, regardless of whether such benefits are provided by a practice or written policy of an employer or through an employee benefits plan as defined by the Employee Retirement Income Security Act of 1974 (ERISA).

At the end of leave, benefits must be resumed in the same manner and at the same levels as provided when leave began.  However, they are subject to any changes affecting the entire work force that may have taken place while the employee was on FMLA leave.

Employees on FMLA leave are entitled to have health benefits maintained while on leave.  If employees were paying all or part of the premium payments prior to leave, they would continue to pay their share during that leave period.  The employer can recover its share only if the employee does not return to work for a reason other than the serious health condition of the employee or the employee’s immediate family member or another reason beyond the employee’s control.

FMLA requires employers to maintain coverage under an existing group health plan for the duration of leave and under the conditions coverage would have been provided if the employee had not taken leave.  An employer is not required to provide health benefits unless it is already doing so.  If a plan is established or changed by the employer during an employee’s leave period, entitlement to benefits starts at the same point as if the employee were still on the job.

Employees have a 30-day grace period after the agreed upon date for payment to pay the premium without affecting health benefits coverage.  If the employee does not make the payment within the 30-day grace period, an employer may discontinue health coverage on the date the grace period ends, or the employer may choose to continue health coverage by making the premium payments.

Employers who pick up the employee’s share of health care costs during leave are entitled to recover the additional payments after the employee returns to work.

It is illegal to require a restored employee to meet any qualification requirements, such as a waiting period, including any new pre-existing conditions, waiting for an open season, or passing a medical examination.

 

Recovering Premiums

Employers may recover premiums paid for maintaining group health plan coverage during any period of unpaid FMLA leave if the employee fails to return to work after the leave entitlement has expired, unless the employee does not return to work because of:

1. The continuation, recurrence, or onset of a serious health condition affecting the employee, an immediate family member, or a covered service member;
   
   
2. The employee’s circumstances suddenly and unexpectedly change during leave; or
   
   
3. Another circumstance beyond the employee’s control.

Examples:

• an immediate family member with a serious health condition who needs the employee to provide care;
  
  
• an employee who is laid off while on FMLA leave;
  
  
• the employee’s spouse is unexpectedly transferred more than 75 miles away from the employee’s work site;
  
  
• an employee is designated a “key” employee.
  
  Note: A key employee who takes leave is still eligible for continuation of health benefits, even if the employee has been notified that reinstatement will be denied.  Under such circumstances, no recovery of the premium may be made by the employer if the key employee has chosen to take or continue leave after receiving notice from the employer that he/she has been designated as a “key” person.

Premiums due may be deducted from any sums owed to the employee (e.g., vacation pay, profit sharing, final paycheck).

 

Tracking Employee Leave

Employers may require employees on leave to report on his/her status and intention to return to work not more than once every 30 days unless:

• Circumstances described by the original certification have changed significantly.  Example: The duration of the illness; complications.
  
  
• There are doubts about the continuing validity of the certification.  Example: The employee is seen working at another job.
  
  
• The employee requests an extension of leave.
  
  
• The employee doesn’t return from leave because of the continuation, recurrence, or onset of a serious health condition, and the employer is prevented from recovering its share of health benefits premium payments.  Note: This exception applies only if the employee fails to pay his/her share of the benefits as agreed upon.

Failure To Return To Work

If failure to return to work is due to a serious health condition of the employee or a covered family member or service member, the employer may ask the employee to furnish medical certification from the health care provider of the employee, the employee’s family member, or the service member being cared for by the employee to support the employee’s claim.

If the employee fails to furnish the requested certification within 30 days of the request, health insurance premiums paid during the period of unpaid leave may be recovered.

If the employer had elected to continue coverage for the employee, and the employee fails to return to work at the end of the leave, all health benefits premiums paid may be recovered.  Recovery is limited to the premiums paid during any period of unpaid FMLA leave.  Health insurance premiums for any period of paid leave cannot be recovered.

If a key employee elects not to return to work, the employer must continue to maintain health benefits and cannot recover its share of the premiums paid during the period of leave.

 

Fitness For Duty

As a condition for being restored, an employer may require an employee who has recovered from a serious health condition to present certification from the health care provider that he/she is able to resume work.

Fitness-for-duty certification may only be requested with regard to the particular health condition that caused the employee’s need for the FMLA leave.  The certification must meet the requirements of the Americans with Disabilities Act (ADA) that any return-to-work physical be job-related.

 

Notification Requirements

When employees request a leave of absence, have them fill out a request for FMLA leave form if you think their conditions may be covered by the Act.  This way, you can review the information and make an informed decision about designating the leave as FMLA.

Once you’ve made the determination that an employee’s leave qualifies for FMLA, your notification obligations really kick in.  The first of these is your response to the employee’s request for leave.  The FMLA specifies that you must respond in writing about the employee’s rights and obligations with respect to the leave.  You can use the DOL form WH-381, Employer Response to Employee Request for Family and Medical Leave, or you can create your own.  This notice must be given to the employee within a reasonable amount of time, generally one to two business days.  You may also mail the notice to the employee’s address of record if he/she has already begun leave.

The FMLA allows employers to deny reinstatement to employees who are designated as “key employees.”  To be able to deny reinstatement based on the key employee designation, however, you must inform the employee in writing of the designation at the time FMLA leave is requested or shortly after it starts.  Failure to notify employees of their key employee designation will forfeit your right to deny reinstatement, even if substantial and grievous injury will result.

When an employee requests FMLA leave for his/her own or a family member’s serious health condition, you have every right to request medical certification by the health care provider of the person for whom the leave is being taken.  If the employee fails to submit the certification, he/she loses FMLA protection.  While the DOL provides a form for medical certifications (Form WH-380), Certification of Health Care Provider, you can also create your own medical certification form.  However, you must be sure to request no more information than is requested on the DOL’s form.

The FMLA grants employers the right to ask employees on leave for their own serious health condition or that of a family member to submit recertification once every 30 days.  If the employee is on a leave of less than 30 days, you cannot request recertification until that minimum period of time is up.

Another right the FMLA grants to employers is the right to request fitness-for-duty certification from employees who are returning to work after an FMLA leave of absence for their own serious health condition.  You can request fitness-for-duty certification from employees on FMLA leave only if you follow these rules.

• You must have a consistent and uniformly-applied practice or policy requiring fitness-for-duty certification from all employees on leave, not just those returning from FMLA leave.
  
  
• You must include a notice in both your employee handbook, and your written response to employees’ requests for FMLA leave, that fitness-for-duty certification will be required before they can return to work.
  
  
• You seek certification which pertains only to the condition which caused the need for the employee’s FMLA leave.
  
  
• You may only seek clarification of the certification through your company’s health care provider, and only with the consent of the employee.
  
  
• You may not seek second (or third) opinions of an employee’s fitness-for-duty certification; it cannot be challenged.
  
  
• You cannot seek fitness-for-duty certification from employees on intermittent FMLA leave.
  
  
• You must adhere to your ADA obligations.

A fitness-for-duty certification can be as simple as a short note from the employee’s doctor stating that he/she is able to return to work.  You are entitled to seek clarification of the certification, as it says above, but you cannot delay reinstatement while awaiting the report.  If you meet each of the above obligations, you then have the right to refuse reinstatement to an employee who fails to submit fitness-for-duty certification.

 

Posting Requirements

Every covered employer must post on its premises a notice explaining the FMLA’s provisions and providing information on how to file complaints of FMLA violations with the Wage and Hour Division.  The notice, which is available through the DOL, must be posted prominently where it can be readily seen by employees and applicants.

If most of the work force is not literate in English, the employer must provide the information in a language in which the employees are literate.

An employer that willfully violates the posting requirement may be fined not more than $100 for each separate offense.  An employer that fails to post the required notice may also not be able to take any adverse action against an employee, including denying FMLA leave for failing to give appropriate notice.

 

Record-Keeping Requirements

• Payroll records collected by the employer for FMLA purposes must conform with FLSA requirements.
  
  
• Payroll records must contain the following information.
  
  
  1. Basic employee data, including name, address, occupation, rate of pay, terms of compensation, hours worked per day and week per pay period, additions to or deductions from wages, and total compensation paid.
     
     
  2. Dates of FMLA leave taken by employees, which must be designated in records as FMLA leave.  FMLA designation does not apply to leave provided under state law or an employer plan.
     
     
  3. If FMLA leave is taken in increments of less than one full day, the hours of the leave.
     
     
  4. Notices of leave from the employee to the employer, if in writing.
     
     
  5. Copies of all written notices given to the employee as required by the FMLA.
     
     
  6. Any documents explaining employee benefits or employer’s policies and practices regarding the paid and unpaid leave.
     
     
  7. Premium payments of employee benefits.
     
     
  8. The explanation of any dispute between the employer and an employee regarding designation of FMLA leave.
     
     
• Records must be kept for at least three years from the last date of entry.
  
  
• Medical records collected by the employer for FMLA purposes must conform with ADA confidentiality requirements (when applicable).
  
  All information obtained for medical certification should be treated as a confidential medical record and stored in a locked cabinet apart from personnel files. The only individuals who should have access to this documentation are supervisors and managers who need to know about necessary restrictions or accommodations, medical and safety personnel, and government, state, and insurance officials with a “need to know.”
  
  
• Employers are not required to keep records in any particular order or form, nor are employers required to revise their computerized payroll or personnel records system to comply.
  
  
• Records must be made available for inspection, copying, and transcription by representatives of the DOL upon request.
  
  
  

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