FMLA Q&A

The FMLA applies to private employers with 50 or more employees on each working day during each of 20 or more calendar workweeks in the current or preceding calendar year. It is not necessary that an employee actually performs work on each working day or receives compensation for the week to be counted as employed, as long as the employee’s name appears on the employer’s payroll. Employees on leave are counted as employed if the employer has a reasonable expectation that they will return to active employment.

The FMLA applies to public agencies and to public and private elementary and secondary schools, regardless of the number of employees.

The DOL’s Wage and Hour Division investigates FMLA complaints. If violations cannot be satisfactorily resolved, the DOL may bring an action in court to compel compliance. Individuals may also bring a separate private civil action against an employer for violations. Complaints or actions can be filed within two years of the last violation or within three years if the violation was willful.

An employee is eligible for FMLA leave if the employee has been employed by a covered employer for at least 12 months and has worked at least 1,250 hours for that employer during the previous 12-month period. An eligible employee must also be employed at a worksite where the employer employs at least 50 employees within a 75-mile radius of the worksite.

For purposes of determining whether an employee who is a flight crew member meets the hours of service requirement above, the employee will be considered to meet the requirement if he or she:

• Has worked or been paid for not less than 60 percent of the applicable total monthly guarantee for the previous 12-month period; and
• Has worked or been paid for not less than 504 hours during the previous 12-month period.

The following circumstances qualify for 12 workweeks of FMLA leave:

• Birth and care of an employee’s son or daughter;
• Placement of a son or daughter with the employee for adoption or foster care;
• Care for an employee’s spouse, son, daughter or parent who has a serious health condition;
• An employee’s own serious health condition that makes the employee unable to perform any one of the essential functions of the employee’s position; or
• Any qualifying exigency arising out of the fact that a family member (spouse, son, daughter or parent of the employee) is a covered military member on covered active duty or has been notified of an impending call or order to covered active duty in the Armed Forces.

In addition, eligible employees may take 26 workweeks of leave in a single 12-month period to care for a spouse, son, daughter, parent or next of kin who is a covered service member with a serious injury or illness

A serious health condition is an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a health care provider. The FMLA does not apply to routine medical examinations, such as a physical, or to common medical conditions, such as an upset stomach, unless complications develop.

For all conditions, “incapacity” means inability to work, including being unable to perform any one of the essential functions of the employee’s position, or inability to attend school, or perform other regular daily activities due to the serious health condition, treatment of the serious health condition, or recovery from the serious health condition. The term “treatment” includes, but is not limited to, examinations to determine if a serious health condition exists and evaluations of the condition.

Serious health conditions may include conditions that involve an inpatient hospital stay or ones that include one or more visits to a health care provider and ongoing treatment. Chronic conditions and longterm or permanent periods of incapacity may also meet the requirements. Certain conditions requiring multiple treatments may also be FMLA-qualifying.

A covered service member is:

• A current member of the Armed Forces (including a member of the National Guard or Reserves) who is undergoing medical treatment, recuperation or therapy, is in outpatient status, or is on the temporary disability retired list, for a serious injury or illness; or
• A veteran who is undergoing medical treatment, recuperation or therapy for a serious injury or illness, and who was discharged within the previous five years before the employee takes military caregiver leave to care for the veteran.

Employees should give employers as much notice as possible when requesting leave under the FMLA. While not required to use the term "FMLA" when seeking leave, the employee must provide sufficient information for the employer to determine if the leave qualifies for FMLA protection. When an employee seeks leave due to an FMLA-qualifying reason for which the employer has previously provided FMLA protected leave, the employee must specifically reference the qualifying reason for leave in notifying the employer.

If leave is foreseeable for the birth of a child, to adopt or place a foster child, for planned medical treatment of a serious health condition of the employee or family member, or for the planned medical treatment for a serious injury or illness of a covered service member, employees must provide the employer with at least 30 days’ advance notice before the leave begins. If 30 days’ advance notice is not provided, the employer has the right to delay the taking of FMLA until 30 days' notice is provided.

When leave will begin in less than 30 days, employees must give notice to an employer as soon as practicable.

For foreseeable qualifying exigency leave, notice must be provided as soon as practicable, regardless of how far in advance the leave is foreseeable.

When the approximate timing of the need for leave is not foreseeable, an employee must provide notice to the employer as soon as practicable under the facts and circumstances of the particular situation.

An employee taking leave for planned medical treatment for a serious health condition or a serious injury or illness must also make a reasonable effort to schedule treatments so an employer’s operations are not unduly disrupted.

Employers may require employees who wish to use FMLA leave to provide the following:

• Medical certification supporting the need for leave due to a serious health condition affecting the employee or an immediate family member (or the next of kin regarding leave taken to care for a covered service member for a serious injury or illness), second or third medical opinions (at the employer’s expense), annual medical certifications and a periodic recertification;
• Periodic reports during FMLA leave regarding the employee’s status and intent to return to work; and
• A certification in the event that leave is requested because of any qualifying exigency arising out of a family member's covered active duty or call to covered active duty in the Armed Forces.

Employers may require employees who take leave to care for a family member to provide reasonable documentation of the required family relationship. An employee may satisfy this requirement either by providing documentation (such as a marriage license or a court document) or by providing a simple statement asserting that the necessary family relationship exists. According to the DOL, it is the employee’s choice whether to provide a simple statement or another type of document.

Employers may not use a request for confirmation of a family relationship in a manner that interferes with an employee’s FMLA rights.

Yes. Under the FMLA, employees may take leave in several ways. Continuous leave, such as several weeks in a row, may be the most common type of leave taken by employees. In certain circumstances, however, leave can be taken intermittently or on a reduced leave schedule.

In general, intermittent leave or a reduced leave schedule can be taken for the birth, adoption or foster care placement of an employee’s child only if the employer agrees.

Intermittent or reduced leave can also be used to care for a spouse, child or parent with a serious health condition, for the employee’s own serious health condition or for a covered service member with a serious injury or illness if it is medically necessary and such medical need can be best accommodated through an intermittent or reduced leave schedule.

If an employee requests intermittent leave or a reduced leave schedule that is foreseeable based on planned medical treatment, an employer may require an employee to transfer temporarily to an available alternative position. The employee must be qualified for the alternative position, the position must provide equivalent pay and benefits (though not equivalent duties) and the position must better accommodate recurring periods of leave than the employee’s regular position.

Intermittent or reduced leave can also be used because of any qualifying exigency which arises as a result of an employee's spouse, son, daughter or parent serving on covered active military duty.

Yes. Employers are responsible for designating any leave taken as FMLA leave and for notifying an employee of the designation. This should take place within five business days of an employer’s learning that the leave is being taken for an FMLA purpose, absent extenuating circumstances. The designation notice to the employee must be in writing. Only one notice is required in the case of intermittent leave or leave on a reduced schedule for each FMLA-qualifying reason per applicable 12-month period.

When an employer wants to substitute an employee’s paid leave for unpaid FMLA leave or count paid leave under an existing leave plan as FMLA leave, the decision must be made within five business days of the time an employee gives notice of a need for leave, unless the employer does not have sufficient information to determine that the paid leave qualifies as FMLA leave. If the employer learns that leave is for an FMLA purpose after leave has begun, the paid leave may be retroactively counted to the extent it qualifies as FMLA leave, provided that the employer's failure to timely designate leave does not cause harm or injury to the employee. In all cases where leave would qualify for FMLA protections, an employer and an employee can mutually agree that leave be retroactively designated as FMLA leave.

Any dispute over whether paid leave qualifies as FMLA leave should be resolved through discussions between the employer and the employee. Documentation of those discussions and the decision is required by the FMLA.

Employees who are absent and receiving benefits under a temporary disability plan or are out on workers’ compensation are not on unpaid leave, and, therefore, the FMLA substitution of paid leave rules do not apply. Nevertheless, absences that qualify as serious health conditions may be designated as FMLA leave. The leave would be counted as running concurrently for purposes of the benefit plan, workers’ compensation and FMLA. However, employers and employees may agree, where state law permits, to have paid leave supplement the disability plan or workers' compensation benefits, such as in the case where a plan only provides replacement income for two-thirds of an employee's salary.

If an employee is certified as able to return to work in a light-duty job, but is unable to return to the same or equivalent job, the employee has the option of declining to return and remaining on unpaid FMLA leave until the 12-week FMLA entitlement period is exhausted. This decision may result in the loss of workers’ compensation benefits, at which point the provision for substitution of paid leave becomes applicable. Either the employer may require or the employee may elect the use of accrued paid leave.

Voluntary offering and acceptance of light duty does not count against the employee's FMLA entitlement and does not reduce an employee’s right to restoration to the same or an equivalent position. The right to restoration is held in abeyance during the period of time the employee performs a light-duty assignment. That right is not unlimited and ceases at the end of the applicable 12-month FLMA leave year. Restoration is dependent on the employee’s ability to perform the essential functions of the same or equivalent position at the end of FMLA leave.

A week that contains a holiday has no effect on counting FMLA leave usage—it is counted as a week of FMLA leave. However, if an employee is using FMLA leave in increments of less than one week, the holiday will not count against the employee's FMLA entitlement unless the employee was otherwise scheduled and expected to work during the holiday. Similarly, when an employer’s business activities temporarily cease, such as a plant closing for repairs or a school closing for summer vacation, and employees are generally not expected to report for work for one or more weeks, that time cannot be counted against an employee’s FMLA leave entitlement.

Under the Fair Labor Standards Act (FLSA), an employer always has the right to cash out an employee's compensatory time or to require the employee to use the time. Thus, if an employee requests and is permitted to use accrued compensatory time to receive pay for time taken off for an FMLA reason, or if the employer requires this use pursuant to the FLSA, the time taken may be counted against the employee's FMLA leave entitlement.

A covered employer is required to maintain group health insurance coverage for an employee on FMLA leave on the same terms as if the employee had continued to work. However, an employee may choose not to retain group health plan coverage while on FMLA leave. When the employee returns from leave, though, the employee is entitled to be reinstated on the same terms as prior to taking the leave. The employee cannot be required to re-qualify or meet any other conditions prior to being reinstated to the group health plan.

Employers must notify employees on FMLA leave before health care coverage is dropped for lack of premium payments. Generally, an employer must provide written notice to the employee at least 15 days before coverage is to cease. The notice must explain that the payment has not been received and that coverage will be dropped on a date that is at least 15 days after the date of the letter, unless payment is received by that date. Upon the employee’s return from FMLA leave, the employer must unconditionally restore the employee to the same coverage and benefits the employee would have had if leave had not been taken and the employee’s share of the premium payments had not been missed. If the employer pays the employee’s
share in order to maintain health coverage, an employer may generally recover the employee’s share of any premium payments that the employer paid while the employee was on FMLA leave.

Upon return from FMLA leave, an employee must be restored to his or her original job, or to an equivalent job with equivalent pay, benefits and other terms and conditions of employment. Under specified and limited circumstances where restoration to employment will cause substantial and grievous economic injury to its operations, an employer may refuse to reinstate certain highly paid “key” employees after using FMLA leave during which health coverage was maintained. In order to do so, the employer must:

• Notify the employee in writing of his or her status as a “key” employee in response to the employee’s notice of intent to take FMLA leave, or when FMLA leave commences, if earlier;
• Notify the employee in writing in person or by certified mail as soon as the employer decides it will deny job restoration, and explain the reasons for this decision;
• Offer the employee a reasonable opportunity to return to work from FMLA leave after this notice; and
• Make a final determination as to whether reinstatement will be denied if the employee requests restoration at the end of the leave period, and notify the employee of the determination in writing, in person or by certified mail.

A “key” employee is a salaried FMLA-eligible employee who is among the highest paid 10 percent within 75 miles of the worksite.

The taking of leave under the FMLA is not a qualifying event under COBRA. However, a qualifying event occurs if an employee (or the employee’s spouse or dependent child) is covered on the day before the first day of FMLA leave (or becomes covered during the FMLA leave) under a group health plan of the employer, the employee does not return to work at the end of the FMLA leave, and the employee (or the employee’s spouse or dependent child) would, in the absence of COBRA continuation coverage, lose coverage under the group health plan. The COBRA qualifying event occurs on the last day of FMLA leave. In general, the maximum coverage period is measured from the last day of FMLA leave.

A COBRA qualifying event also occurs on the date an employee, either before starting FMLA leave or while currently on FMLA leave, notifies the employer that he or she will not be returning to work.

Additionally, if coverage under a group health plan is lost at a later date and the plan provides for the extension of the required periods, COBRA coverage begins on the date when group health coverage is actually lost.

Employees are entitled to any unconditional pay increases (cost of living) that occur during FMLA leave. Pay increases conditioned on seniority, length of service or work performed are subject to the employer’s policies or practices for other employees on an equivalent leave status for a reason that does not qualify as FMLA leave.

Furthermore, if a bonus or other payment is based on the achievement of a specified goal, such as hours worked, products sold or perfect attendance, and the employee has not met the goal due to FMLA leave, then the payment may be denied, unless otherwise paid to employees on an equivalent leave status for a reason that does not qualify as FMLA leave. For example, if an employee who used paid vacation leave for a non-FMLA purpose would receive the payment, then the employee who used paid vacation leave for an FMLA-protected purpose also must receive the payment.

An employee may, but is not entitled to accrue any additional benefits or seniority during unpaid FMLA leave. An employee’s entitlement to benefits such as holiday pay is to be determined by the employer’s established policy for providing such benefits when an employee is on other forms of leave, such as paid or unpaid, as appropriate.

However, at the end of an employee’s FMLA leave, benefits must be resumed in the same manner and at the same levels as provided when the leave began, though the employee is subject to any changes in benefit levels that may have taken place during the period of FMLA leave affecting the entire workforce. Upon return from FMLA leave, the employee cannot be required to re-qualify for any benefits the employee enjoyed before the leave began.