Guide to the Family and Medical Leave Act
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General Provisions
- What is the Family and Medical Leave Act (FMLA)?
The Family and Medical Leave Act is a federal law that became effective on
Aug. 5, 1993. It provides certain employees with up to 12 workweeks of unpaid,
job-protected leave a year and requires group health benefits be maintained
during the leave. The U.S. Department of Labor has issued detailed regulations
interpreting the FMLA.
- Which employers must provide this leave?
All public employers and private employers who have 50 or more employees are
required to provide FMLA leave. However, not all employees of a covered employer
are covered.
- Which employees are covered?
Covered employees are those who have worked for the employer:
- a minimum of one year;
- a minimum of 1,250 hours (an average of 25 hours per week) during the
12 months prior to the start of the FMLA leave; and
- are employed at a location where at least 50 employees are employed
at the location or within a 75-mile radius.
Each state, city, county and school district is considered an employer
under FMLA for purposes of counting the number of employees to determine
if an employee is “eligible” for FMLA leave. Therefore, if
an agency in a city, for example, has fewer than 50 employees but the
city as a whole employs 50 or more employees, the employee will be eligible.
- Do the 1,250 hours include paid leave time or other absences from work?
No. The 1,250 hours include only those hours actually worked, on-the-job,
for the employer. Paid leave, including workers’ compensation, and unpaid
leave, including FMLA leave, are not included.
- What am I entitled to under FMLA?
A covered employer must grant an eligible employee up to a total of 12 workweeks
of unpaid leave in a 12-month period for one or more of the following reasons:
- the birth and care of a newborn child;
- the placement with the employee of a child for adoption or foster care
and to care for the newly placed child;
- care for an immediate family member (spouse, child or parent —
but not a parent “in-law”) with a serious health condition;
and
- when the employee is unable to work because of a serious health condition.
(See “definition of a serious health condition”)
An employee’s entitlement to family and medical leave for the birth
or placement of a child expires 12 months after the birth or placement
of the child. For other requests for family leave, an employee may use
up to 12 weeks each year.
- Can I be sure I’ll have a job when I return from leave?
The law requires that an employee returning from leave be restored to the
position they would have been in if they had not taken the leave. This means
you can return to your old job or to an equivalent position with the same
pay, benefits and other terms and conditions of employment. However, if, for
example, your position was terminated during your leave and you would have
been laid off, you are not entitled to get your job back. (“Key employees”
who are among the highest paid 10 percent of employees may be denied reinstatement,
if necessary, to avoid substantial and grievous economic injury to the employer’s
operation.)
- Can the employer require me to provide medical certification when requesting
leave?
Yes. An employer may require that you provide a certification issued by your
health care provider (see “definition of health care provider”)
or that of your son, daughter, spouse or parent to support your request.
The certification must include:
- a description of the serious health condition;
- the date that the condition began or treatment became necessary; and
- the expected duration of the condition or treatment.
- What happens to my health care benefits when I am on leave?
You may continue your coverage under the employer’s group health plan.
For example, if the employer pays 80 percent of your health care premium and
you pay 20 percent, that same arrangement will continue during the unpaid
leave period. Employers and employees may negotiate an arrangement in advance,
which will accommodate both the employer’s administrative needs and
the employee’s financial situation. However, the employer cannot require
pre-payment. The regulations provide, at a minimum, that if an employee does
not meet the agreed upon date for payment of the premium, he or she has a
30-day grace period during which provision of health coverage will not be
affected. If coverage lapses for nonpayment of premium coverage, employees
still must be restored with the same plan upon return with no restrictions.
If you choose not to continue your health benefits while on FMLA leave, your
coverage still must be fully restored with no restrictions when you return
to work.
- What happens to my other employment benefits while I am on leave?
Taking leave will not result in the loss of any employment benefit accrued
prior to the date the leave begins. Although the law does not entitle you
to continue to accrue seniority or other benefits while on unpaid FMLA leave,
unionized employees may negotiate stronger language protecting other benefits
such as life insurance and pension rights for employees on unpaid leave.
- If I decide not to return to work after the leave, will I have to reimburse
the employer for the cost of the health insurance?
It depends on the reason you do not return. If the reason is the continuation,
onset or recurrence of a serious health condition, you will not have to reimburse
the employer. Otherwise, the employer can require reimbursement.
Notice Requirements
- Is the employer required to tell me what its FMLA policies are?
Yes. Employers must take the following steps to provide information to employees
about FMLA:
o Post and keep posted a notice of the FMLA requirements in conspicuous places
where employees can see it. The notice also must provide information concerning
procedures for filing complaints with the Wage and Hour Division of the U.S.
Department of Labor.
o Include information about employee rights and obligations under FMLA in
employee handbooks or other written material, including collective bargaining
agreements. If handbooks or other written material do not exist, the employer
must provide general guidance about employee rights and obligations under
FMLA whenever an employee requests leave.
- Do I have to give notice to the employer before I take leave?
If the need for leave is foreseeable, the law requires 30 days’ notice.
If the need for leave is not foreseeable 30 days in advance, you should give
whatever notice is possible, ordinarily within one or two business days of
when you learn of the need for leave. You do not need to mention the FMLA
when requesting leave.
If an employee uses paid leave, under circumstances that qualify for FMLA
leave, that employee is only required to comply with the notice requirement
for use of paid leave, unless the FMLA notice requirement is shorter and then
the employee can comply with that notice.
- How will I know whether the leave has been approved?
The employer must provide you with a written notice designating the leave
as FMLA leave and detailing specific expectations and obligations of an employee
who is exercising his/her FMLA entitlements. (See Employer Response to Employee
Request for FMLA for the kinds of information included in the notice.) This
employer notice should be provided to you within one or two business days
after receiving your notice of need for leave.
- If an employer fails to tell me that the leave is FMLA leave, can the
employer count the time I’ve already been off against the 12 weeks of
FMLA leave?
In most situations, the employer cannot count leave as FMLA leave retroactively.
Remember, you must be notified in writing that an absence is being designated
as FMLA leave. If the employer was not aware of the reason for the leave,
leave may be designated as FMLA leave retroactively only while the leave is
in progress or within two business days of your return to work.
- Can my employer make inquiries about my leave during my absence?
Yes, but only to you. Your employer may ask you questions to confirm whether
the leave needed or being taken qualifies for FMLA purposes. Also, if the
employer wishes to obtain another opinion, you may be required to obtain additional
medical certification at the employer’s expense. The employer may have
a health care provider representing the employer contact your health care
provider, with your permission, to clarify information in the medical certification
or to confirm that it was provided by the health care provider. The inquiry
may not seek additional information regarding your health condition or that
of a family member.
- My employer has a policy that anyone who is on FMLA leave must check
in every 4 weeks. Is this legal?
Yes. Your employer may require you to report periodically on your status and
intent to return to work. However, your employer may not do this in a discriminatory
way — for example, by requiring only women who are on leave following
childbirth to check in, based on the employer’s belief that women will
probably change their minds about returning to work. Also, your employer may
require a medical recertification during a period of FMLA leave, but not more
often than every 30 days.
Leave Status
- Can my employer put me on FMLA leave whether I want to be or not?
Yes. In all circumstances, it is the employer’s responsibility to designate
leave, unpaid or paid, as FMLA-qualifying and to give notice of the designation
to you, as long as the illness or injury meets the definition of a “serious
health condition.”
- Can I take leave on an intermittent basis or work on a reduced schedule?
Yes. The FMLA does make provision for intermittent leave or leave on a reduced
schedule for planned medical treatment or a serious health condition. FMLA
permits an employee taking leave for birth, adoption or placement of a foster
child to take leave intermittently or by working a reduced workweek only with
the employer’s approval.
When the need for such leave is foreseeable based on planned medical treatment,
the employer can require the employee to transfer temporarily to another position
with equivalent pay and benefits if such a move better accommodates the employer’s
needs during the period of medical treatment or serious health condition.
- Does workers’ compensation leave count against my FMLA leave entitlement?
It can. FMLA leave and workers’ compensation leave can run together,
provided the reason for the absence is due to a qualifying serious illness
or injury and the employer properly notifies you in writing that the leave
will be counted as FMLA leave.
- Can the employer count time on maternity leave or pregnancy disability
leave as FMLA leave?
Yes. Pregnancy disability leave or maternity leave for the birth of a child
would be considered qualifying FMLA leave for a serious health condition and
may be counted in the 12 weeks of leave so long as the employer properly notifies
the employee in writing of the designation.
- If I am too sick to return to work, can my employer force me to come
back to work once my leave expires?
No. If your serious health condition requires you to stop working altogether,
you cannot be forced to return. But note that once you end your employment,
your former employer has no obligation to provide health benefits. You may
be eligible, however, to continue your health benefits under the Consolidated
Omnibus Budget Reconciliation Act of 1986 or “COBRA” provided
you pay the full cost.
- Can I return to work early?
Yes. If you begin a requested 12-week leave of absence, and, 3 weeks into
the leave ask to return to work earlier than originally planned, your employer
is obligated to promptly restore you. FMLA states that an employee may only
take FMLA leave for reasons that qualify under the Act, and may not be required
to take more leave than is necessary to respond to the need for FMLA leave.
Substitution of Paid Leave
- Can I substitute paid leave, e.g., sick leave or vacation for any part
of the unpaid 12 weeks leave?
Yes. The law permits you to elect, or the employer to require the employee,
to use accrued paid leave, such as vacation or sick leave, for some or all
of the FMLA leave period. However, regarding the use of sick leave to care
for eligible family members, nothing in the Act requires an employer to provide
paid sick leave, paid medical leave, or paid family leave in any situation
in which the employer would not normally provide any such paid leave. For
example, if your employer does not allow employees to use their sick leave
for anyone else except themselves, the employer is not required to let you
substitute sick leave for a family member.
- If my sick leave, vacation, personal leave, etc., adds up to more than
12 weeks, am I still entitled to an additional 12 weeks of unpaid leave after
I have exhausted my paid leave?
Not if the employer requires you to first use your paid leave for your family
and medical leave. There is nothing in the Act that either prohibits an employee
from using FMLA leave and paid leave consecutively or requires an employee
to substitute paid leave for FMLA leave.
- My employer has a no fault attendance policy. Will my FMLA leave be
counted against that policy, thereby putting me in line for disciplinary action?
No. The FMLA regulations clearly state that an employee cannot be penalized
in any manner whatsoever if the employee is absent for a reason covered by
the FMLA.
Impact of Other Laws and Bargaining Agreements
- I live in a state, which has its own family leave law. Which law applies
to me?
It depends on which one is better. If your state law provides family and medical
leave rights superior to the federal law, the state law applies. If the FMLA
is better, it applies.
- My union has negotiated leave for the members. How does the FMLA affect
our contract?
If the leave provided by your contract is superior to the FMLA, the FMLA does
not affect your contract. If your contract provisions are not as good as that
required by the FMLA, the employer is obligated to comply with the FMLA. There
may be gaps in what your contract provides. For example, your contract might
include good parenting leave provisions but nothing on leave to care for a
spouse, child or parent with a serious health condition. You may want to negotiate
language to fill in these gaps. That way, all of an employee’s rights
to leave can be enforced through the contract, which may be faster and more
effective than filing charges with the U.S. Department of Labor.
Enforcement
- What federal agency enforces the FMLA?
The Wage and Hour Division of the U.S. Department of Labor is the agency that
enforces FMLA.
- What should I do if my employer denies me the right to take leave?
You can file a complaint with the Wage and Hour Division of the U.S. Department
of Labor or file a private lawsuit. The Wage and Hour Division, which has
offices in most major cities, will investigate your complaint. Because speedy
resolution of complaints is essential, the division provides an accelerated
intake and investigative process that will prevent employees from suffering
irreparable harm.
The FMLA also gives the Wage and Hour Division the right to go to court and
get an injunction to keep the employer from withholding wages or employment
benefits. The FMLA also gives you the right to go directly to court and file
a private lawsuit without first filing with the Wage and Hour Division. You
have 2 years from the FMLA violation, 3 years if it was a willful violation,
to file either a complaint with the Wage and Hour Division or a private lawsuit.
- Must I first exhaust my employer’s internal complaint procedures
before filing a complaint with the Department of Labor?
No. The Act places no requirement that an employee exhaust administrative
remedies before being authorized to file with the Department of Labor.
- What damages can I recover from an FMLA violation?
The employer can be sued by the employee or the Department of Labor to recover
wages and benefits lost as a result of the violation, monetary losses sustained,
such as the cost of hiring someone to provide care, and interest on the money
owed to you. This is in addition to equitable remedies such as reinstatement.
In cases where the employer cannot prove that they acted in good faith, believing
their action was legal, you can recover double the amount of damages.
Definition of a Serious Health Condition
“Serious health condition” means an illness, injury, impairment,
or physical or mental condition that involves:
- any period of incapacity or treatment connected with inpatient care (i.e.,
an overnight stay) in a hospital, hospice, or residential medical care facility;
or
- a period of incapacity requiring absence of more than three calendar days
from work, school or other regular daily activities that also involves continuing
treatment by (or under the supervision of) a health care provider; or
- any period of incapacity due to pregnancy, or for prenatal care; or
- any period of incapacity (or treatment therefore) due to a chronic serious
health condition (e.g., asthma, diabetes, epilepsy, etc.); or
- a period of incapacity that is permanent or long term due to a condition
for which treatment may not be effective (e.g., Alzheimer’s, stroke,
terminal diseases, etc.); or
- any absences to receive multiple treatments (including any period of recovery
there from) by, or on referral by, a health care provider for a condition
that likely would result in incapacity of more than three consecutive days
if left untreated (e.g., chemotherapy, physical therapy, dialysis, etc.).
Definition of a Health Care Provider
Health care providers who may provide certification of a serious health condition
include:
- doctors of medicine or osteopathy authorized to practice medicine or surgery
(as appropriate) by the state in which the doctor practices;
- podiatrists, dentists, clinical psychologists, optometrists, and chiropractors
(limited to treatment consisting of manual manipulation of the spine to correct
a sublimation as demonstrated by X-ray to exist) authorized to practice in
the state and performing within the scope of their practice under state law;
- nurse practitioners, nurse-midwives, and clinical social workers authorized
to practice under state law and performing within the scope of their practice
as defined under state law;
- Christian Science Practitioners listed with the First Church of Christ Scientist
in Boston, Mass.;
- any health care provider recognized by the employer or the employer’s
group health plan’s benefits manager; and
- a health care provider listed above who practices in a country other than
the United States and who is authorized to practice under the laws of that
country.
Employer Response to Employee Request for
FMLA
The employer may use the U.S. Department of Labor Optional Form WH-381, “Employer
Response to Employee Request For Family and Medical Leave.”
This employer notice should be provided to the employee within one or two business
days after receiving the employee’s notice of need for leave and include
the following:
- that the leave will be counted against the employee’s annual FMLA
leave entitlement;
- any requirements for the employee to furnish medical certification and the
consequences of failing to do so;
- the employee’s right to elect to use accrued paid leave for unpaid
FMLA leave and whether the employer will require the use of paid leave, and
the conditions related to using paid leave;
- any requirement for the employee to make co-premium payments for maintaining
group health insurance and the arrangement for making such payments;
- any requirement to present a fitness for duty certification before being
restored to his/her job;
- rights to job restoration upon return from leave;
- employee’s potential liability for reimbursement of health insurance
premiums paid by the employer during the leave if the employee fails to return
to work after taking FMLA leave; and
- whether the employee qualifies as a “key” employee and the circumstances
under which the employee may not be restored to his or her job following leave.
Last modified on: 30 June 2015
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