State laws

• FMLA laws vary by state.

Many states have laws that entitle employees to leave for various reasons. The laws also vary in relation to covered employers, eligible employees, how much leave, benefit protections, and so on. Reasons for leave under state laws can include, for example, leave for new parents, for domestic violence/victims, for pregnancy disability, for organ or bone marrow donation, military family, to care for more family members than the federal Family and Medical Leave Act (FMLA) includes, public health emergencies, and child bereavement. Some state laws provide for paid leave for various reasons.

Integrated employers

• An “integrated employer” test can determine if separate entities can be designated as a single employer for FMLA purposes.

There are circumstances where the relationship between two entities is so close that the relationship is treated as being an integrated employer, and therefore treated as a single employer in counting employees for Family and Medical Leave Act (FMLA) coverage.

Separate entities can be designated as a single employer for FMLA purposes if the entities pass the “integrated employer” test. If that test is met, all employees of the separate entities must be counted to determine if the company is a covered employer. In applying the test, look at the entire relationship and consider the following questions:

• Is there common management? This may include common directors and boards.
• Is there an interrelation of operations? This could include common work areas, common recordkeeping, and shared bank accounts and equipment.
• Is there centralized control of labor relations? This may involve such responsibilities as hiring and firing, performance evaluations, and promotions.
• Is there a degree of common ownership/financial control?

Joint employers

• An employee’s primary employer is responsible for satisfying FMLA responsibilities in a joint employment relationship.
• The secondary employer should not discriminate or retaliate against an employee on FMLA leave.

Where two or more businesses exercise some control over the work or working conditions of the employee, the businesses may be joint employers under the Family and Medical Leave Act (FMLA). Joint employers may be separate and distinct entities with separate owners, managers, and facilities.

Where an employee performs work which simultaneously benefits two or more employers, or works for two or more employers at different times during the workweek, a joint employment relationship generally will be considered to exist. This is often the case when dealing with temporary employment agencies.

In a joint relationship, the primary employer is responsible for satisfying the basic FMLA responsibilities to an employee taking FMLA leave, while the secondary employer is prohibited from discriminating or retaliating against that employee.

Successor in interest

• FMLA obligations apply to a business that is a successor in interest to another business.

Under the Family and Medical Leave Act (FMLA), a business that is a successor in interest to another business has FMLA obligations, including assuming the FMLA responsibilities of the predecessor employer as well as meeting its own FMLA obligations.

If there is continuity of the same business operations with the same plant, workforce, jobs, working conditions, supervisory personnel, and similar machinery, equipment, products, and services, the predecessor and the successor are considered the same employer for purposes of FMLA coverage.

Policy considerations

• A covered employer’s FMLA policy should include more information than the required FMLA poster.

Once a company becomes a covered employer, it must post the FMLA poster. It might also want to consider crafting a Family and Medical Leave Act (FMLA) policy. This could include more information than the FMLA poster has. The policy could, for example, point out which method the company uses to calculate the 12-month leave year period, it could also indicate whether the company will allow employees to take FMLA leave on an intermittent or reduced schedule basis when leave is taken for bonding with a healthy child. A policy could also include procedures for employees.

Other forms of leave

An FMLA policy should take into consideration other forms of leave that might need to be coordinated. If a company has, for example, maternity leave, the company will want to ensure that the policy speaks to it, such as whether it is run concurrently with FMLA leave or not. A company might also want the policy to address coordination with any other paid leave, such as vacation, sick leave, or PTO.

Intermittent leave

• Employees may take intermittent FMLA leave for a variety of reasons.

Eligible employees may take Family and Medical Leave Act (FMLA) leave on an intermittent (or reduced schedule) basis when medically necessary, to proceed with adoption or foster care placement, or for qualifying family military emergencies.

When leave is needed for a serious health condition, there must be a medical need for it to be taken on an intermittent basis. A company may not require an employee to take more leave than is necessary to address the situation. The certification should indicate that intermittent leave is needed.

Employees may take intermittent leave for planned or unplanned medical treatment, or for recovery from treatment, or to provide care, including psychological comfort to a family member with a serious condition.

Chronic conditions often involve intermittent leave, sometimes foreseeable, and sometimes not. The employee need not receive treatment by a health care provider for each instance of intermittent leave, and employers may not request a certification (or doctor’s note) for each instance of intermittent leave.

Employer-approved intermittent leave

When leave is taken strictly for bonding with a healthy child, whether by birth, adoption, or foster placement, an employee is not automatically entitled to intermittent (or reduced schedule) leave. The employee may take leave on this basis only if the employer agrees.

Airline flight crew employees

• Specific FMLA entitlements apply to eligible airline flight crew members.

Airline flight crew employee: An airline flight crewmember or flight attendant as those terms are defined in regulations of the Federal Aviation Administration.

Eligible airline flight crew employees are entitled to up to 72 days of Family and Medical Leave Act (FMLA) leave during any 12-month period for the same reasons that other employees would be entitled to up to 12 weeks of leave. The same qualifying reasons apply:

• The birth of a child or placement of a child for adoption or foster care;
• To care for the employee’s spouse, son, daughter, or parent with a serious health condition;
• For the employee’s own serious health condition; or
• For any qualifying exigency arising out of the fact that a spouse, son, daughter, or parent is a military member on covered active duty.

The 72-day entitlement is based on a uniform six-day workweek for all flight crew employees, regardless of the time actually worked or paid. This is multiplied by 12 weeks. For example, if Amy took five weeks of FMLA leave, she would use 30 days (6 days x 5 weeks) of her 72-day entitlement; her schedule is notwithstanding.

Eligible airline flight crew employees are entitled to up to 156 days of military caregiver leave during a single 12-month period to care for a covered servicemember. This 156-day entitlement is based on the uniform six-day workweek multiplied by the 26-workweek entitlement for military caregiver leave.

Holidays and vacations

• Holidays and vacations may or may not change an employee’s FMLA entitlement.

When determining the amount of leave, when an employee is taking FMLA leave on a continuous basis, a holiday occurring within a week of Family and Medical Leave Act (FMLA) leave has no effect. The week is still counted as a week of FMLA leave.

However, if an employee is using FMLA leave in increments of less than one week (intermittent or reduced schedule), the holiday will not count against the employee's FMLA entitlement, unless the employee was otherwise scheduled and expected to work during the holiday.

If a company's activities temporarily cease for one or more weeks and employees generally are not expected to report for work, the employer may not count, as FMLA leave, the days on which the company's activities have ceased.

Leave for birth, adoption, foster placement

• Leave for the birth, adoption, or foster placement of a child must conclude leave within 12 months from the date of the birth, adoption, or placement.

When an employee is out on Family and Medical Leave Act (FMLA) leave for the birth of a child, the adoption of a child, or the foster placement of a child, the employee must conclude leave within 12 months from the date of the birth, adoption, or placement. This applies no matter what the 12-month leave year period is. If, for example, an employer uses the calendar year method to calculate the 12-month leave year period, and an employee gives birth on April 12, the employee would need to complete the leave for bonding by the following April 12.

Leave year

• FMLA regulations require a company to specify how it will designate a leave year.
• Employers may choose from four distinct categories of leave year designation.

The Family and Medical Leave Act (FMLA) regulations state that employers must designate which method a company will use to measure the 12-month period in which the 12 weeks of entitlement will fall. Employers may choose from the following:

• The calendar year,
• Any fixed 12-month leave year (for example, August 1 to July 31),
• The 12 months measured forward from the date an employee begins leave, or
• A rolling backward 12-month period.

The military caregiver leave year must run on a measured forward basis, no matter which method is used to calculate the other, 12-month period for the other qualifying reasons.

If a state law requires a company to designate one of the above for the leave year, the company should go with that leave year for all employees — at least in that state. The Department of Labor has indicated, in an unpublished letter, that employers may be unable to choose one method from among the available regulatory options if a state family and medical leave law dictates a particular method.

When this is the case, employers covered by both state and federal laws would follow the state provisions. Some employment attorneys, however, discount this letter.

Calendar year

If employers choose the calendar year, the 12 months begin on January 1 and end on December 31 for all eligible employees. In this situation, an employee may end up with up to 24 consecutive weeks of leave if the leave begins 12 weeks before the end of the year. In this situation, the employee may be eligible for another 12 weeks of leave beginning the new year, which brings the consecutive total up to 24 weeks.

Fixed 12-month

This can be any fixed period that encompasses 12 months. Some companies prefer to use the fiscal year to designate as the FMLA leave year. In this situation, all employees have the same leave year, similar to the calendar-year method.

Another example of a fixed 12-month period is one that begins on an employee's anniversary date. With this situation, employees would have different leave years.

Since employees are not eligible for FMLA leave unless they have worked for the company for at least 12 months (even though these months need not be sequential), using the anniversary date can make it easy to determine when an employee may begin to take leave.

12 months measured forward

With this method of calculating a leave year, not only will there be different leave years for each employee, but there would be different leave years based upon when an employee's leave began. This method of measuring a leave year begins when an eligible employee first takes leave. So, once an employee begins leave, the leave year is established for that year. The employee's next 12-month period would begin the first time FMLA leave is taken after completion of any previous 12-month period.

This method may help reduce the chance of employees stacking leave as employees might with a fixed 12-month or calendar year. If leave is taken on a reduced schedule or intermittent basis, the employee would still be eligible for 12 workweeks in a 12-month period.

Rolling backward

With this method, there is no set 12-month period. When an employee requests FMLA leave, employers look back 12 months from the date any leave is taken. If the employee has not taken any leave in those previous 12 months, the employee has 12 weeks available on that date. If, however, the employee has taken leave within the last 12 months from any date the employee takes leave, employers must first figure out if the employee has any leave available. If any leave was taken prior to the previous 12 months, the employee's 12 weeks of leave is reduced by the amount of leave taken — at least as of that particular day.

Another way of looking at this method is like that of a snapshot of the 12-month period that changes daily: as each new day is added to the 12-month period, one day from 12-months ago is eliminated. The year continues to roll.

Early returns

• Employees have the right to return to their original job when returning from FMLA, even if returning earlier than expected.

If, while an employee is out on Family and Medical Leave Act (FMLA) leave, circumstances change and the employee no longer has a need for FMLA leave, the employee’s FMLA leave is concluded, and the employee has an absolute right under the law to be promptly restored to the employee’s original position or an equivalent position of employment.

Employers may not require the employee to take more leave than is necessary to respond to the need for FMLA leave, and may not impose the entire requested leave upon the employee if it is not needed.

That doesn’t mean, however, that if an employee shows up at work unannounced before the expected return date, the employee may simply return to the job. A company may require that the employee give it reasonable advance notice, generally at least two working days, before returning to the employee’s position. This highlights the importance of communication during an FMLA-related situation.

Paid leave

• A company may require an employee to use accrued paid leave for otherwise unpaid FMLA-qualifying leave.

The Family and Medical Leave Act (FMLA) generally provides for unpaid leave.

If a company provides paid leave such as vacation, sick leave, or other accrued paid time off, which could run concurrently with FMLA leave, the employee may elect or a company may require the employee to take such leave concurrently with otherwise unpaid FMLA leave. Any remaining FMLA leave in the 12-month period beyond the paid leave may be unpaid.

Company leave policy

An employee’s ability to substitute accrued paid leave for otherwise unpaid FMLA leave is determined by the terms and conditions of normal leave policies.

A company may also require that such paid leaves be substituted for (used concurrently with) otherwise unpaid FMLA leave, as long as the reason for the leave is FMLA-qualifying.

Foreseeable need for leave

• Employees must provide a company with advanced notice of their foreseeable FMLA leave needs.
• If 30 days' advance notice is not possible, an employee must notify the employer of the need for leave “as soon as practicable.”

Employees seeking to use Family and Medical Leave Act (FMLA) leave are required to provide at least 30 days advance notice before FMLA leave is to begin when the need is foreseeable and such notice is feasible.

This could be for situations such as an expected birth of a child, placement for adoption or foster care, a planned medical treatment for a serious health condition, or planned medical treatment for a serious injury or illness of a covered servicemember.

Whether the leave is to be continuous, taken intermittently, or on a reduced schedule basis, an employee has to give the employer initial notice only one time for a given reason. If, however, things like dates change, the employee needs to let the company know.

As soon as practicable

Furthermore, when leave is foreseeable and an employee is not able to provide 30 days’ notice, then the employee is to give notice “as soon as practicable.” This would mean at least verbal notification to the employer within one or two business days of when the need for leave becomes known to the employee.

Sometimes the employee will not provide the employer with 30 days advance notice of foreseeable leaves. In those situations, if employers ask, the employee must explain why providing notice in a timely manner was not practicable.

“As soon as practicable” means as soon as both possible and practical, and this will depend upon the facts and circumstances of the individual situation. The employee should be able to provide notice either the same day of learning of the future need for leave or the next business day.

For foreseeable leave, the employee should give at least a verbal notice with enough information to make the employer aware that the employee needs FMLA. The information should also include the following:

• The expected timing and duration of the leave;
• Whether the condition renders the employee unable to perform the functions of the job;
• That the employee is pregnant or has been hospitalized overnight;
• Whether the employee or family member is under the continuing care of a health care provider;
• If the leave is for a qualifying exigency;
• If the leave is for a family member, whether the condition is pregnancy or otherwise renders the family member unable to perform daily activities; or
• That the family member is a covered servicemember with a serious injury or illness.

If the employee is requesting leave for the first time for an FMLA-qualifying event, the employee does not need to mention the FMLA or otherwise assert FMLA rights. If the employee is requesting leave for an FMLA-qualifying reason and has taken leave for the reason before, the employee must specifically reference the qualifying reason or the need for FMLA leave.

If the employee does not provide adequate information, the company should inquire further about whether the employee is seeking FMLA leave and obtain enough details to indicate that FMLA is involved.

Calling in sick without providing more information will not be considered sufficient notice to trigger the employer’s FMLA obligations.

Employees must respond to questions designed to determine whether an absence potentially qualifies for FMLA. Failure to do so may result in the denial of FMLA protection if the employer can’t determine whether the leave actually does qualify for FMLA.

Employees planning to have medical treatment must consult with the employer to schedule the treatment so the absence does not unduly disrupt the company's operations. Of course, the schedule would need to be OK with the health care provider. The schedule should suit the needs of the company and the employee.

Unforeseeable need for leave

• An employee or the employee’s spokesperson may give the company notice of the need for FMLA leave in unforeseeable situations such as an emergency.

If an employee has a situation that is unforeseeable and is unable to notify the employer 30 days before the employee needs to take leave, notice must be given as soon as practicable. Circumstances under which unforeseeable situations could occur include the following:

• A change in circumstances,
• A lack of knowledge of approximately when leave will be required to begin, or
• An emergency, such as a car accident.

It should generally be practicable to provide notice of the need for leave within the time prescribed by the employer’s usual and customary leave notice policies or requirements.

If an employee is unable to give notice, a spokesperson (i.e., spouse, adult family member, etc.) may. Even if the employer has a requirement of advance written notice, it can’t be applied to prevent an employee from taking FMLA leave in an emergency.

Company policy

• It is lawful for an employer to require notice of FMLA leave except in the case of unusual circumstances, such as an emergency.

Employers may require employees to comply with their usual and customary notice and procedural requirements for requesting Family and Medical Leave Act (FMLA) leave unless there are unusual circumstances.

This could include requiring employees to provide written notice that indicates the reasons for the requested leave as well as the anticipated start and duration of the leave. Employers may also require employees, per policy, to contact a specific individual.

For unforeseeable leave, if an employee requires emergency care, the employee would not be required to follow the call-in procedure until the condition improved. Such a situation would also preclude written advance notice of the need for leave.

If there are no unusual circumstances and the employee does not comply with the notice requirements, FMLA-protected leave may be delayed or denied.

Employee failure to provide notice

• An employer may deny or delay FMLA leave if an employee fails to provide proper notice.

If an employee fails to give 30 days’ notice for foreseeable leave, and has no reasonable excuse for the delay, an employer may delay Family and Medical Leave Act (FMLA) leave 30 days from the date the employee requests leave.

FMLA leave may be delayed because an employee failed to give proper notice only if it was clear the employee knew about the FMLA notice requirements and the leave was clearly foreseeable. The obligation is met if the employer has properly posted the FMLA notice at work.

If an employee fails to provide timely notice of unforeseeable leave, and no extenuating circumstances justify the delay, the employer may deny or delay the FMLA leave, but much will depend upon the specific facts involved.

If, for example, it would have been practicable to provide notice very soon after the need for leave arose, but the employee provided notice two days after the leave began, the employer could delay FMLA coverage by two days.

Employee eligibility

• An employee’s eligibility to take FMLA leave is determined by three criteria.

When an employer learns of an employee’s need for Family and Medical Leave Act (FMLA) leave, it must ensure that the employee is eligible to take leave.

There are three basic eligibility criteria that an employee of a covered employee must meet:

• The first is that an employee must have been employed by a company for at least 12 months. Employers should be able to determine this easily by looking at the employee’s hire date(s). The 12 months need not be consecutive.
• The second criterion is that the employee must also have worked at least 1,250 hours for the employer during the 12-months before leave is to begin.
• The third eligibility criterion is that the employee must work at a worksite where there are at least 50 company employees within 75 miles of the worksite.

Please note that flight crewmembers have alternative eligibility criteria.

Temporary employees

• The time employees worked for both the company and the temp agency should be counted toward FMLA eligibility.

If employers have temporary employees, the time such employees work for both the employer and the temp agency are to be counted toward Family and Medical Leave Act (FMLA) eligibility. A temporary help agency and an employer are considered joint employers for purposes of determining employee eligibility (and employer coverage) under the FMLA. Consequently, the time an employee was employed by a temporary help agency would be counted toward the eligibility test.

The worksite for employees of a temporary employment agency is the site from which the work is assigned — that is, the employment agency. Therefore, all temporary employees assigned by the temporary employment agency, regardless of whether the customers’ worksites are within 75 miles of the agency’s office, are included in the employee count for the temporary employment agency office in determining if staff employees are eligible for FMLA leave.

Flight crew members

• Flight crewmembers have different FMLA leave eligibility criteria.

Employers with employees who are flight crewmembers will need to use different eligibility criteria. These employees need to meet the following guidelines:

• Worked or been paid for at least 60 percent of the employee’s applicable monthly guarantee, and
• Worked or been paid for at least 504 hours (not counting personal commute time or time spent on vacation leave or medical or sick leave) during the previous 12-month period.

For employees who are not on reserve status, the “applicable monthly guarantee” is the minimum number of hours for which the employer has agreed to schedule the employee for any given month.

For employees who are on reserve status, the “applicable monthly guarantee” is the minimum number of hours for which the employer has agreed to pay the employee for any given month. This may be established in an applicable collective bargaining agreement or in the employer’s policies.

Eligibility notice

• A company has five business days to provide an employee needing FMLA leave with an eligibility notice.
• Eligibility is based on three criteria.

Once the employer learns of the need for Family and Medical Leave Act (FMLA) leave, it has five business days to provide the employee with an eligibility notice. Eligibility shouldn't take too much work to determine; the company needs to ensure the employee has worked for at least 12 months (need not be continuous) for the company, has worked at least 1,250 hours in the last 12 months, and works at a site with at least 50 company employees within 75 miles. If the employee needing leave meets these criteria, the employee will be eligible to take FMLA leave for a qualifying reason. If the employee doesn’t meet these criteria, the employer will need to indicate this in the eligibility notice.

Employers need to provide an eligibility notice for leave taken for each FMLA-qualifying reason. All FMLA absences for the same qualifying reason are considered a single leave, and employee eligibility for that reason does not change during the applicable 12-month period.

Notification of eligibility may be verbal or in writing, and the employer may use the Department of Labor’s (DOL) model eligibility notice to meet this requirement.

Rights and responsibilities notice

• Employers must provide employees with a rights and responsibilities notice in addition to the FMLA eligibility notice.

In addition to the Family and Medical Leave Act (FMLA) eligibility notice, employers must provide written notice about the specific employee expectations and obligations along with any consequences for not meeting those obligations. This information is to be provided when the eligibility notice is provided, which logically explains why the Department of Labor (DOL) combined the two notices into one document.

The rights and responsibilities notice must include the following (not a complete list):

• That leave might be designated as FMLA and counted against the employee's entitlement;
• Certification requirements;
• Which method is used to calculate the 12-month leave year period;
• Provisions for substituting accrued paid leave;
• The right to health care coverage maintenance;
• Health care plan premium payment requirements and provisions, and consequences for failure to make payments;
• Liability for employer-paid plan premiums reimbursement, if applicable;
• “Key” employee status; and
• Other information such as status report requirements.

Along with this rights and responsibilities notice, the employer may provide a certification form for the employee to have completed when the reason for leave is not to bond with a healthy child.

Additional documents

Employers may provide more than the eligibility and rights and responsibilities notice. Additional documents could include a letter or memo to the employee, a copy of the company policy regarding Family and Medical Leave Act (FMLA) leave, a leave request form, a certification form (if applicable), and perhaps a copy of the FMLA poster. These are not, however, required.

Key definitions

• Several key definitions are used to describe reasons for FMLA leave.

Family and Medical Leave Act (FMLA) reasons for leave include the following definitions:

Covered active duty: For family members in the regular Armed Forces, this is duty during the deployment of the member to a foreign country. For family members in a reserve component of the Armed Forces, this is duty during the deployment of the member to a foreign country under a federal call or order to active duty in support of a contingency operation.

Covered servicemember: For current members, this includes members of the regular Armed Forces as well as National Guard or Reserves who are undergoing medical treatment, recuperation, or therapy, or are otherwise in outpatient status or on the temporary disability list for a serious injury or illness. For veterans, this includes those who are undergoing medical treatment, recuperation, or therapy for a serious injury or illness at any time during the period five years before the date on which the veteran undergoes such treatment, recuperation, or therapy.

In loco parentis: Refers to a relationship in which a person is put in the situation of a parent by assuming and discharging the obligations of a parent to a child. The in loco parentis relationship exists when an individual intends to take on the role of a parent to a child who is under 18 or 18 years of age or older and incapable of self-care because of a mental or physical disability. Although no legal or biological relationship is necessary, grandparents or other relatives, such as siblings, may stand in loco parentis to a child under the FMLA as long as the relative satisfies the in loco parentis requirements.

Incapacity: The inability to work, attend school, or perform other regular daily activities. This inability must result from the condition, treatment for the condition, or any treatment in connection with the condition, including any subsequent treatment or incapacity relating to the initial condition.

Inpatient care: At least an overnight stay in a medical facility such as a hospital, hospice, or residential medical care facility.

Outpatient status: The status of a member of the Armed Forces assigned to either a military medical treatment facility as an outpatient, or a unit established for the purpose of providing command and control of members of the Armed Forces receiving medical care as outpatients.

Birth of a child

• Eligible employees may take up to 12 weeks of FMLA leave for the birth of a child.

The first qualifying event for Family and Medical Leave Act (FMLA) leave is the birth of a child. This does not include just the time the child is born and immediately thereafter. An expectant employee (birth mother or spouse) may schedule leave to include prenatal care.

FMLA leave to care for a pregnant woman is available to a spouse and not, for example, to a boyfriend or fiancé, even if the person is the father of the child. This is because there is no legal familial relationship between the mother and the father unless the couple are married.

Leave taken for the birth of a child is not limited only to the child’s birth mother. Any employee who just became a new parent would be entitled to leave. If, however, both married parents work for the company, it could require the parents to share the leave. That means that the couple is collectively eligible for 12 weeks of leave, not for 12 weeks of leave each to bond with a healthy baby. This limitation, however, does not apply to unmarried couples working for the same employer.

In the case of multiple births, the 12-week entitlement does not apply to each child (i.e., an employee is not entitled to 24 weeks of FMLA leave if she delivers twins).

Employees need not have a biological or legal relationship to a new baby to take FMLA leave for bonding. If the employee plans on standing in loco parentis to the baby — plans to take on day-to-day responsibilities to care for or financially support the baby — the employee will be considered a parent, and be able to take FMLA leave to bond with the baby. This will apply regardless of the gender of the parents.

There is no limit on the number of “parents” a child may have. As long as an individual has assumed the obligations of a parent, the person may be seen as standing in loco parentis.

Leave taken for the birth of a child must be completed within 12 months of the birth.

An employer is not required to allow an employee to take leave on an intermittent or reduced schedule basis when the leave is taken solely for bonding with a healthy child.

Adoption or foster care placement

• Employees adopting a child or receiving placement of a child through foster care may qualify for 12 weeks of FMLA leave.

Eligible employees may take Family and Medical Leave Act (FMLA) leave for the adoption of a child or the placement of a child through foster care. Leave entitlements for such events apply to both parents. Leave for the adoption or placement of a child must be completed within 12 months of the adoption or placement.

When an employee adopts a child or receives foster placement of a child, leave may also include time prior to the actual placement for placement-related business.

For purposes of the FMLA, it does not matter if the adoption is through a licensed placement agency or not. If an employee receives a child for foster care, however, there must be state action involved.

In loco parentis

As long as the employee intends to assume parental responsibilities, the employee may be seen as intending to stand in loco parentis to a child.

Serious health condition

• FMLA leave may be taken by eligible employees for a qualifying serious health condition or to care for a family member with a serious health condition.

Eligible employees may take Family and Medical Leave Act (FMLA) leave for a serious health condition or to care for a family member with a serious health condition.

A serious health condition is an illness, injury, impairment, or physical or mental condition that basically involves treatment connected with:

• Inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical care facility; or
• Continuing treatment, which can involve one or more of the following:
  • A period of incapacity requiring absence of more than three, consecutive, full calendar days from work, school, or other regular daily activities that also involves:
    • Treatment of at least twice by (or under the supervision of) a health care provider, or
    • Treatment at least once followed by a regimen of continuing treatment (e.g., a prescription, therapy requiring special equipment; or
  • Any period of incapacity due to pregnancy or for prenatal care; or
  • Any period of incapacity (or for such treatment) due to a chronic serious health condition (e.g., asthma, diabetes, epilepsy, etc.) or treatment for it; 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 disease, etc.); or
  • Any absence to receive multiple treatments (including any period of recovery that follows) 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.).

The term “serious health condition” is intended to cover conditions or illnesses that make an employee (or a family member) unable to perform the essential functions of the employee’s or family member’s job, go to school, or otherwise live a normal life. This means that the condition affects a person’s health to the extent that inpatient care is required, or absences from work for more than a few days are necessary for treatment or recovery. It is not intended to cover short-term conditions for which treatment, and from which recovery, is very brief, since such conditions normally are covered by the company’s sick leave policies.

It does not matter if the condition is “elective” or not. If, for example, an eligible employee elects to donate a kidney, this would most likely result in the employee needing an overnight stay in a health care facility, and as such, would involve a serious health condition qualifying for FMLA protection. The elective procedure need not be altruistic. If an employee had breast augmenting which resulted in a serious health condition, it would still be a qualifying reason.

Pregnancy

• Employers should treat pregnancy as a serious health condition.

Eligible employees may take Family and Medical Leave Act (FMLA) leave when needed for pregnancy. Some pregnancies, however, require more medical attention than others. Pregnancy is similar to a chronic condition in that the patient is periodically visiting a health care provider for prenatal care i.e., “supervision.” A pregnant employee may, however, also experience severe morning sickness or other pregnancy-related conditions. These situations qualify for FMLA leave.

Treat pregnancy as a serious health condition, entitling an eligible employee to leave, including any period of incapacity because of the pregnancy or for prenatal care.

Employees are generally entitled to leave to care for their pregnant spouse for prenatal care or if the pregnant spouse is otherwise incapacitated. This is not true, however, if the partner is not married to the birth mother. There is no legal or familial relationship to the pregnant woman unless the couple are married.

Parents, including fathers, are entitled to leave for the birth of a child because there is a familial relationship between the parent and the child.

In addition to birth parents, those who intend to stand in loco parentis to a child are entitled to leave for the birth. In this situation, there need not be a biological or legal relationship to the child.

Eventually, the employee will need time off for delivery and recovery.

Chronic conditions

• FMLA leave may be taken by eligible employees for qualifying chronic health conditions.

Ailments that continue over an extended period of time (i.e., from several months to several years), often without affecting an individual’s day-to-day ability to work, go to school, or to engage in other life activities, but that cause episodic periods of incapacity of fewer than three days, can qualify as serious health conditions.

Chronic conditions often render the individual incapacitated. To be considered serious health conditions, they must require at least two visits per year to a health care provider for treatment, and the two visits should occur before leave is needed. Employers may, however, allow employees to attend the second visit in the future. Family and Medical Leave Act (FMLA) leave may be taken for any absences needed for an incapacity due to chronic conditions — there is no need to have more than three days of incapacity.

Neither the FMLA nor its underlying regulations require employees to comply with medical advice. Employees with conditions such as asthma may also take FMLA leave to avoid incapacitation.

Permanent or long-term conditions

• FMLA leave may be taken by eligible employees for qualifying permanent or long-term health conditions.

A period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective would be considered a serious health condition.

The employee or family member must be under the continuing supervision of, but need not be receiving active treatment by, a health care provider. The condition may not be curable, but may involve a period of incapacity that is permanent or long-term. Treatment, however, may not be effective.

Multiple treatments

• FMLA leave may be taken by eligible employees for qualifying health conditions requiring multiple treatments.

Some conditions require the patient to receive more than one treatment for the condition. These could be such treatments as physical therapy for severe arthritis, restorative surgery after an accident or perhaps cancer, or dialysis for kidney disease. This list is not complete, it just provides some examples. Without these treatments, the employee would be rendered incapacitated for at least three days.

The employee may also need time to recover from such treatments, and this time off is also allowed under the Family and Medical Leave Act (FMLA).

Substance abuse

• Treatment for substance abuse may qualify for FMLA leave for eligible employees.

Substance abuse may be a serious health condition if the other elements of the definition are met. However, an absence because of an employee’s illegal or otherwise violative use of the substance, rather than for treatment, is not protected. An employer may take disciplinary action against an employee pursuant to a uniformly applied substance abuse policy, provided the action is not being taken because the employee has exercised the right to take Family and Medical Leave Act (FMLA) leave.

Care for a family member

• FMLA leave may be taken by eligible employees to care for a spouse, parent, or child with a serious health condition.

An otherwise eligible employee may take Family and Medical Leave Act (FMLA) leave if necessary to care for a spouse, parent, or child with a serious health condition.

Spouse

When it comes to marriages, spouse is defined under state law for purposes of marriage, including common-law or same-sex marriages. Same-sex marriages are recognized in all U.S. states and the District of Columbia.

Important to note is that this extends only to legal marriages, not to domestic partnerships or civil unions.

Parent

The term “parent” includes biological, adoptive, step, or foster parent, or anyone who stood in as a parent (in loco parentis) to the employee when the employee was a child. This term does not, however, include parents-in-law.

In loco parentis basically means “in the place of a parent.” It is commonly understood to refer to someone who is put in the situation of a lawful parent by assuming the obligations incident to the parental relation without going through the formalities needed for legal adoption. It embodies the two ideas of assuming the parental status and discharging parental duties. An employee would be entitled to FMLA leave, for example, to care for an individual who stood in as a parent to the employee when the employee was a child.

There are factors to be considered in determining in loco parentis status, including, but not limited to, the following:

• The age of the child;
• The degree to which the child is dependent on the person claiming to be standing in loco parentis;
• The amount of support, if any, provided; and
• The extent to which duties commonly associated with parenthood are exercised.

Given this, whether an employee stands in loco parentis to a child will depend on the specific facts involved in a situation.

Child (son or daughter)

A son or a daughter (child) is a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is under 18 years of age or is 18 years of age or older and incapable of self-care because of a mental or physical disability. Again, there does not need to be a biological or legal relationship between the parent and the son or daughter, as mentioned above.

Eligible employees may take FMLA leave to care for an adult child, as long as that child meets all the following criteria:

• Has a disability as defined by the Americans with Disabilities Act (ADA),
• Is incapable of self-care because of the disability,
• Has a serious health condition, and
• Is in need of care because of the condition.

A disability is generally an impairment that substantially limits one or more major life activities, such as walking, thinking, eating, bending, hearing, and the normal function of bodily systems such as immune, neurological, circulatory, and endocrine systems. This definition is fairly broad.

An individual is incapable of self-care if the individual needs help with at least three daily living activities such as grooming, personal hygiene, dressing, eating, cooking, cleaning, shopping, paying bills, and maintaining a residence.

Qualifying exigency

• FMLA leave may be taken by eligible employees for a qualifying exigency.
• Several reasons qualify for exigencies under the FMLA.

The qualifying exigency provisions are intended for those with family members who serve in the Reserves or National Guard and are called to military duty as well as those who are members of the regular Armed Forces.

There are several different reasons that qualify for exigencies under the Family and Medical Leave Act (FMLA). These include the following:

1. Short-notice deployment — to address issues that arise because a servicemember is notified of an impending call or order to active duty seven or fewer calendar days before the date of deployment. Leave taken for this purpose can be used for a period of seven calendar days beginning on the date the servicemember is notified of an impending call or order to active duty.
2. Military events — to attend any official ceremony, program, or event sponsored by the military and to attend family support or assistance programs and informational briefings sponsored or promoted by the military, military service organizations, or the American Red Cross that are related to the active duty or call to active duty.
3. Childcare and school activities — to address childcare and school activities that require attention because the servicemember is on active duty or call to active duty status, not routine events that occur regularly for all parents. The employee does not need to be related to the military member’s child. However, the military member must be the employee’s spouse, parent, or child; and the child for whom the employee is taking leave must be the child of the military member. Qualifying exigency leave is not to be taken for childcare on a routine, regular, or everyday basis.
4. Financial and legal arrangements — to make or update financial or legal arrangements to address the servicemember's absence, such as preparing and executing financial and health care powers of attorney, transferring bank account signature authority, enrolling in the Defense Enrollment Eligibility Reporting System, obtaining military identification cards, or preparing or updating a will or living trust.
5. Counseling — to attend counseling provided by someone other than a health care provider. This counseling could be for the employee, the servicemember, or a child of the servicemember, provided the need for counseling is because of the covered active duty.
6. Rest and recuperation, leave — to spend time with a servicemember who is on short-term, temporary rest and recuperation (R&R) leave. Leave taken for this reason may last up to 15 days for each instance of rest and recuperation, and is to be used only during the military member's R&R leave.
7. Post-deployment activities — to attend arrival ceremonies, reintegration briefings and events, and any other official ceremony or program sponsored by the military for a period of up to 90 days following the end of covered active duty. Leave for this reason may also be taken to address issues that arise from the death of a servicemember, such as meeting and recovering the body and making funeral arrangements.
8. Parental care — to address certain activities related to the care of the military member’s parent who is incapable of self-care. These could include arranging for alternative parental care; providing care on a non-routine, urgent, immediate need basis; admitting or transferring the parent to a new care facility; and attending certain meetings at a care facility or with hospice staff. Note: The employee does not need to be related to the military member’s parent. However, the military member must be the employee’s spouse, parent, or child; and the parent for whom the employee is taking leave must be the parent of the military member.
9. Other — to address other events that arise because of the servicemember's active duty. The employer and the employee are to agree that such leave qualifies as an exigency and agree to both the timing and duration of the leave.

Military caregiver

• FMLA leave may be taken by eligible employees to care for a servicemember with a serious injury or illness that was incurred or aggravated in the line of active military duty.

Eligible employees who are the spouse, son, daughter, parent, or next of kin of a covered servicemember may take Family and Medical Leave Act (FMLA) leave to care for a servicemember with a serious injury or illness that was incurred or aggravated in the line of active military duty. Employees may also take the leave to care for a family member who is a veteran who receives care within five years of becoming a veteran.

Employees are entitled to take up to 26 workweeks of leave during a 12-month period to care for the servicemember. The leave is available only during a single 12-month period.

An eligible employee may take no more than 26 workweeks of military caregiver leave in any “single 12-month period.” The 26-workweek entitlement is to be applied as a per-servicemember, per-injury entitlement. This means that an eligible employee may take 26 workweeks of leave to care for one covered servicemember in a “single 12-month period” and then take another 26 workweeks of leave in a different “single 12-month period” to care for another covered servicemember or to care for the same covered servicemember with a subsequent serious injury or illness.

An eligible employee is entitled to a combined total of 26 workweeks of military caregiver leave and leave for any other FMLA-qualifying reason in a “single 12-month period,” provided that the employee may not take more than 12 workweeks of leave for any other FMLA-qualifying reason. It is only where the two 12-month periods overlap that an employee is restricted to 26 weeks of leave.

The “single 12-month period” for military caregiver leave begins on the first day the eligible employee takes military caregiver leave and ends 12 months after that date, regardless of the method used by the employer to determine the employee’s 12 workweeks of leave entitlement for other FMLA-qualifying reasons. Therefore, leave taken to care for a servicemember is to be calculated on the “measured forward” basis.

Certification forms

• Five different certification forms are provided by the DOL for FMLA leave situations.

The Department of Labor (DOL) provides five different certification forms for use in appropriate of Family and Medical Leave Act (FMLA) leave situations. The forms are as follows:

• Certification of Health Care Provider for Employee's Serious Health Condition,
• Certification of Health Care Provider for Family Member's Serious Health Condition,
• Certification of Qualifying Exigency for Military Family Leave,
• Certification for Serious Injury or Illness of a Current Servicemember for Military Family Leave, and
• Certification for Serious Injury or Illness of a Veteran for Military Family Leave.

Pregnancy, delivery, and recovery all entail a serious health condition. Therefore, if an employee is pregnant and will be delivering a child, an employer may use the employee serious health condition certification. If the employee is taking time off to care for the person who gave birth, the employer may use the family member serious health condition certification.

For situations in which an employee is off because the employee is bonding with a healthy child or because the employee adopted or will be a foster parent of a healthy child, however, there really is no certification form to use. In fact, an employer may not require an employee to provide a certification for bonding with a healthy child. Employers may, however, require employees to provide reasonable documentation or statement of family relationship. The employer may only review official documents and must return the documents to the employee.

In any case, an employee may satisfy such a requirement to confirm a family relationship by providing either a simple statement asserting that the requisite family relationship exists, or documentation. It is the employee’s choice whether to provide a simple statement or another type of documentation. In all cases a simple statement of family relationship is sufficient to satisfy the request.

Therefore, if an employee tells an employer that the employee’s relationship with an individual meets the criteria for a family member, the employer may not ask for more information. Employers may not demand that an employee provides a particular document as proof. The employer may, however, require that the employee’s statement be put in writing.

Certifications for qualifying exigency cannot come from health care providers, as leave for a qualifying exigency cannot be for medical reasons.

Timing

• Employees who fail to return certification when it was possible to do so within 15 calendar days from receipt may forfeit FMLA protections.
• Employers may have a policy that allows for more than 15 days, if desired.

After receiving the certification and information on requiring one, the employee has at least 15 calendar days from receipt to return it, complete and sufficient. There may be situations in which circumstances prohibit the employee’s good-faith efforts to meet that 15-day requirement. If so, employers will need to allow for such extenuating circumstances. Employers may also have a policy that allows for more than 15 days, if desired.

If the Family and Medical Leave Act (FMLA) leave is foreseeable, and at least 30 days’ notice has been provided, the employee should return the certification to the employer before leave begins. If this is not possible, the employee then must provide the certification to the employer within the time frame requested (at least 15 calendar days after the request), unless not practical.

Unfortunately, some employees miss this 15-day deadline, and for various reasons. In some situations, employers might need to provide more than 15 days. An employer’s actions will depend upon whether the leave is foreseeable or unforeseeable.

• When the employee’s need for leave was foreseeable and the employee fails to provide a certification within 15 days, the employer may deny FMLA coverage until the required certification is provided. When leave is foreseeable, employees are to provide advance notice of the need for leave, and, therefore, are in a better position to provide the certification earlier. For example, if an employee is requesting leave for an upcoming birth, the employee should provide notice of the need for leave at least 30 days in advance. The employee then should be able to provide a requested certification well before the leave is to begin. If, for example, an employee had 15 days to provide a certification, but doesn’t do so for 21 days without sufficient reason for the delay, the employer may deny FMLA protections for the six days after the 15-day window has closed, as long as the employee takes leave during those 21 days.
• When the employee’s need for leave is unforeseeable, the employer may deny FMLA coverage for the requested leave if the employee fails to provide a certification within 15 days from receipt of the request for the certification, unless not practicable due to extenuating circumstances. For example, if an employee is involved in an automobile accident, it may not be practicable for the employee to provide the required certification within 15 days. If, however, there are no extenuating circumstances, and the employee fails to timely return a certification, the employer may deny FMLA protections for the leave following the expiration of the 15-day time period until a sufficient certification is provided. Extenuating circumstances could include the doctor being away for a period of time and not being able to complete the certification. If an employee is putting forth good faith efforts to get a certification, an employer might want to give the employee the opportunity to do so.

Where there is no justification for the delay, as indicated, the employer need not apply the FMLA’s protections, at least for part of the absence. The employee has FMLA protections during the 15-day window.

Complete and sufficient

• An employee requesting FMLA leave must provide a company with a requested certification that is complete and sufficient.

The employee requesting Family and Medical Leave Act (FMLA) leave must give the employer a complete and sufficient certification. Complete means that all of the entries are completed. Sufficient means that the information provided is not vague, ambiguous, or nonresponsive.

While a medical certification should include the clearest information that is practicable for the health care provider to include regarding the employee's need for leave, precise responses are not always possible, particularly regarding the frequency and duration of incapacity of chronic conditions. Over time, health care providers should be able to provide more detailed responses based on knowledge of the employee's (or family member's) condition.

Deficient certification

If the employer receives a certification that is not complete or the information is vague, it is to return it to the employee with a written list of what is needed to make the certification complete and sufficient. The employee then has seven calendar days to cure any deficiencies. Of course, if there are extenuating circumstances, the employee may not be able to meet the seven-day deadline, despite good faith efforts. In such situations, provide the employee more time.

Complete and sufficient certification

If an employer receives a certification that is complete and has sufficient information, it can’t ask for more information from the health care provider. Employers may, however, contact the health care provider directly for clarification and authentication of the certification. Of course, this can be done only after the employee has had a chance to cure any deficiencies.

Clarification is obtaining information to understand the handwriting or to the meaning of a response. Authentication is verifying that the information was completed and/or authorized by the health care provider who signed the certification.

The only individual allowed to make direct contact with the health care provider must be another health care provider, a human resource professional, a leave administrator, or a management official. Under no circumstances may the employee’s direct supervisor contact the health care provider.

If the employee fails to cure the deficiencies and resubmit the certification within seven days, the employer may deny FMLA leave. If the employee fails to return the certification at all, this would be a failure to provide a certification, not a situation involving an incomplete/insufficient certification. In essence, if the employee fails to provide a complete and sufficient certification, despite the opportunity to cure any deficiencies, or fails to provide a certification at all, the employer may deny FMLA leave.

It is up to the employee to either furnish a complete and sufficient certification or to give the health care provider any necessary authorization (think Health Insurance Portability and Accountability Act — HIPAA) to allow the health care provider to release such certification to the employer. If an employee would rather not give the health care provider authorization to disclose the certification directly to the employer, that is acceptable; but the employee should then obtain the certification from the health care provider and give it to the employer. That way, the HIPAA authorization requirement is side-stepped. The employee is still responsible for providing appropriate certification.

Certification contents

• Different content requirements apply to different FMLA certifications.

Since there are different Family and Medical Leave Act (FMLA) certifications, there are different content requirements for each. Please note that leave for a qualifying exigency cannot be because of a medical condition, so certifications for qualifying exigencies will not come from health care providers.

Employee or family member health condition

Certifications for the employee or a family member’s serious health condition should contain the following six components to be considered complete and sufficient:

• Health care provider information (name, address, telephone number, and so on);
• Approximate date the serious health condition began and its probable duration;
• Description of the medical facts regarding the condition (the facts must be sufficient to support the need for leave and may include symptoms, diagnosis, hospitalization, doctor visits, whether medication was prescribed, referrals, and regimen of continuing treatments);
• Information to establish that the employee cannot perform the essential functions of the job and any work restrictions, and the likely duration of such inability;
• Information that the family member needs care, and an estimate of the frequency and duration of leave for the care, even if leave is intermittent or on a reduced schedule; and
• Information to establish the medical necessity for intermittent or reduced schedule leave and an estimate of the dates, frequency, and duration of the leave (this can be for planned treatment or unforeseeable episodes of incapacity).

Information from another source

If employers receive sufficient information from another source, such as a workers’ compensation health care provider, a short- or long-term disability claim, don’t ask for more information, such as a certification. Sometimes, alternate sources do not provide adequate information in a timely manner. In such situations, employers may request a certification.

Certifications for an employee’s own serious health condition should not contain genetic information per the Genetic Information Nondiscrimination Act (GINA).

In situations where the employee’s FMLA leave lasts beyond a single leave year, as it may where the employee takes intermittent or reduced schedule leave, the employer may require the employee to provide a new medical certification in each leave year — an annual certification. Just don’t ask for one before an employee gives notice of the need for leave in a new leave year.

Employers must accept a medical certification from a health care provider from a different country, as long as the provider is licensed to practice in that country. If the certification is in a language other than English, however, the employer may require that the employee provides a written translation.

Qualifying exigency certification

• A company may require an employee to provide a copy of the covered military member’s official documents for qualifying exigency certification for FMLA leave.

When it comes to information for qualifying exigency for Family and Medical Leave Act (FMLA) leave, an employer may require an employee to provide a copy of the covered military member’s active duty orders or other official document issued by the military indicating that the military member is on covered active duty or call to covered active duty status and the dates of the service.

Employees need to provide this documentation only once per deployment. However, if the need for leave is for a different active duty, the employee must provide copies of new orders. The same would be true if the leave involved a different servicemember.

Certification supporting qualifying exigency leave should include the following:

• A statement or description, signed by the employee, of facts regarding the qualifying exigency (the facts should include the type of exigency and any available written documentation such as a meeting announcement, appointment confirmation, a bill for legal or financial services, or rest and recuperation orders);
• The approximate date the qualifying exigency will begin or began;
• The end dates for leave (if not intermittent/reduced schedule);
• The frequency and duration (if intermittent/reduced schedule); and
• If leave involves meeting with a third party, contact information of that third party, and a description of the meeting’s purpose.

When FMLA leave is taken for the qualifying exigency of a military member’s rest and recuperation (R&R), the employee is to include a copy of the military member’s leave orders, or other documentation issued by the military with the dates of the military member’s leave.

Military caregiver certification

• An employer may require an employee seeking FMLA leave as a military caregiver to provide certification.

An employer may also require certification to support leave for an employee to care for a family member seriously injured or made ill in the line of military duty. This certification would come from a non-military-affiliated health care provider, as well as a health care provider from the following:

• U.S. Department of Defense (DOD),
• U.S. Department of Veterans Affairs,
• DOD TRICARE network, or
• A DOD non-network TRICARE provider.

Employers may request that the certification supply the following information:

• Health care provider information (name, address, contact information, practice, specialty, and which of the areas listed above the provider is from);
• Whether the servicemember's or veteran’s condition was incurred or aggravated in the line of duty on active duty;
• The approximate date on which the injury or illness or aggravation began and its probable duration;
• Information describing the medical facts regarding the condition (this should be sufficient to support the need for leave and must indicate whether the injury or illness renders the servicemember medically unfit to perform the duties of the office, grade, rank, or rating, and whether the servicemember is receiving medical treatment, therapy, or recuperation);
• Information establishing that the servicemember is in need of care and will need care for a single continuous period of time, along with beginning and ending dates (if not for intermittent/reduced schedule leave);
• Information on whether there is a medical need for planned treatment and an estimate of the treatment schedule (if for intermittent/reduced schedule leave);
• Information on whether there is a medical need for periodic care (if for intermittent/reduced schedule leave);
• The name and address of the employer of the employee requesting leave, the employee, and the servicemember;
• The relationship of the employee and servicemember;
• Whether the servicemember is a current member or veteran of the military and the branch, rank, and unit assignment;
• Whether the servicemember is assigned to a military medical facility or unit providing command and control of servicemembers receiving medical care;
• Whether the servicemember is on the temporary disability retired list; and
• A description of the care provided and an estimate of the leave needed to provide the care.

Employers may also require confirmation and documentation of the relationship to the servicemember as well as whether the military member is a veteran, the date of separation, and whether the separation was other than dishonorable.

Second opinion

• An employer may require (and pay for) a second opinion if it doubts the validity of an employee’s certification for FMLA leave.

Circumstances may arise that may give an employer reason to seek additional information or doubt the validity of a certification from an employee seeking Family and Medical Leave Act (FMLA) leave. Reasons employers might have doubts about the validity of a certification could include when it appears the employee has altered it after the doctor completed it.

Another reason that might leave employers with doubts regarding a certification’s validity is if the employee ignores the medical information. If, for example, an employee is taking FMLA leave for a knee injury, but an employer witnesses the employee walking from the car to the company’s human resources office without the use of any assistance (crutches, cane, etc.), while the certification indicates “no use of left lower extremity,” the employer might want to request a second opinion.

Second opinions, however, must be paid at the company’s expense.

Second or third opinions may not be required for qualifying exigency or servicemember care leave, or for recertifications.

The employer may select the health care provider to furnish the second opinion, but the chosen provider may not be employed on a regular basis by the employer. The only exception is if the employer is located in an area where access to health care is extremely limited.

Third opinion

• At the company’s expense, a third medical opinion may be required for an employee’s certification for FMLA leave if the second opinion disagrees with the first.

A third medical opinion is necessary when the second opinion disagrees with the original opinion. The employer can then require the employee to obtain certification from a third health care provider. The third medical opinion is also at the employer’s expense.

Selecting the provider

The third health care provider must be selected by both the employer and the employee. Since there is no established method for selecting who this should be, both the employer and the employee must each act in good faith in an attempt to reach a mutual decision on the third health care provider. If the employer does not attempt in good faith to reach an agreement (i.e., refusing to agree to let the employee see any doctor on a list of specialists in the appropriate field), it must use the first medical certification provided by the employee.

On the other hand, if the employee does not attempt in good faith to reach an agreement (i.e., refuses to see a doctor in the specialty in question), that employee must accept the findings of the second certification.

This third opinion will be final and binding.

Recertification

• In certain situations, a company may request recertification from an employee on FMLA leave.

After receiving an initial certification for Family and Medical Leave Act (FMLA) leave, an employer may request that an employee provide it with a recertification in certain circumstances and at certain times.

Generally, employers may request recertification every 30 days in relation to an absence. If, however, the certification indicates a minimum duration of the condition lasting longer than 30 days, employers must wait for that minimum duration to pass before requesting a recertification.

The employer need not wait the 30 days or minimum duration in the following limited situations:

• The employee requests an extension of FMLA leave;
• Circumstances described in the current certification have changed (e.g., the frequency or duration of the leave, the nature of the condition, complications); or
• The employer doubts the stated reason for leave or the continuing validity of the certification.

In all cases, employers may request a recertification every six months in relation to an absence.

Recertification is to be obtained at the employee’s expense unless the employer voluntarily chooses to pay for it. Often, however, the employee’s doctor visit will be covered by the employer’s health plan. The employer may not request second or third opinions on recertifications, nor can it request recertifications for qualifying exigency or servicemember care leave.

Employers often want to have employees provide a doctor’s note for every instance of intermittent leave, particularly when it is unforeseen. Doing so, however, comes with risks. Such doctor’s notes are seen as tantamount to recertification and would, therefore, need to comply with the recertification provisions.

Health care provider

• A substantial list of what qualifies as a health care provider is provided by the FMLA.

Health care providers often complete certifications and recertifications. The Family and Medical Leave Act (FMLA) provides a substantial list of what qualifies as a health care provider:

• A doctor of medicine or osteopathy,
• A podiatrist,
• A dentist,
• A clinical psychologist,
• An optometrist,
• A chiropractor (limited to manual manipulation of the spine as demonstrated by X-ray),
• A nurse practitioner,
• A nurse midwife,
• A clinical social worker,
• A physician assistant,
• A Christian science practitioner,
• A similarly defined foreign care provider, and
• Others acceptable to the employer or group health plan.

Employers may need to review which providers the group health plan will accept to substantiate a claim for benefits to help determine who is also a health care provider.

Fitness-for-duty certifications

• A company can require a fitness-for-duty certification in an employee’s designation notice for FMLA leave.

If employers included a requirement for employees to provide a fitness-for-duty certification in the designation notice, employees must provide one when seeking reinstatement at the end of Family and Medical Leave Act (FMLA) leave taken for the employee's own serious health condition. This certification is designed to let the employer know that the employee is fit for duty and able to return to work.

If the employer wanted the health care provider to provide fitness-for-duty certification based on the essential functions of the employee’s position, it would need to have provided the employee with a list of such essential functions for the health care provider. This would have been included with the designation notice the employer gave to the employee after determining whether or not to designate the leave as FMLA.

Confidentiality

• A company must keep an employee’s medical certifications and medical information confidential.

Medical certifications and medical information are to be kept confidential and separate from the general personnel files. The right to have the certification information kept confidential is a specific right, in and of itself.

Managers and supervisors likely don’t need specific medical information, but they may need information on when the employee will not be at work.

If managers and supervisors have their own personnel files, the medical information must not be kept there. The Family and Medical Leave Act (FMLA) takes its confidentiality provisions from the Americans with Disabilities Act (ADA).

Paid vs. unpaid leave

• An employer must notify employees of its paid vs. unpaid leave policy regarding the use of FMLA leave.

Family and Medical Leave Act (FMLA) leave is unpaid, generally. However, the regulations allow an employee to elect, or the employer to require the employee, to use accrued paid leave, such as vacation, personal leave, and sick leave, for some or all of the FMLA leave period. When paid leave is substituted for unpaid FMLA leave, it may be counted against the 12-week FMLA leave entitlement if the employee is properly notified of the designation when the leave begins.

If employers require paid leave to be substituted for unpaid leave or paid leave taken under an existing leave plan be counted as FMLA leave, an employer must provide this information in the rights and responsibilities notice and the designation notice.

Retroactive designation

• A company must designate an employee’s FMLA leave before leave begins or may retroactively do so.

It is always the employer's responsibility to designate leave, and to do so before leave begins, if possible. If the employer does not do so, it may retroactively designate leave as Family and Medical Leave Act (FMLA) with appropriate notice, provided the failure to timely designate leave does not cause harm or injury to the employee.

In any situation where leave would qualify for FMLA, an employer and employee may mutually agree that leave be retroactively designated as FMLA.

If the employee suffers harm because the employer failed to designate a leave, it may constitute an interference with, restraint of, or denial of the exercise of the employee's FMLA rights.

Denying leave

• FMLA leave may be denied if an employer isn’t covered, or if an employee fails to meet the obligations.

There are situations in which Family and Medical Leave Act (FMLA) leave may be denied. Of course, if the company isn’t covered, the employee isn’t eligible, or if the reason for the leave does not qualify, the employer does not need to provide FMLA leave.

Both employers and employees have obligations. As such, if employees fail to meet the obligations, the result may be the denial of FMLA leave.

Workweek/Hours worked

• For FMLA purposes, employers define an employee’s workweek, which may vary.

The Family and Medical Leave Act (FMLA) does not define an employee’s workweek; employers do. Workweeks may vary among employers. One employee might work a 50-hour workweek, while another might work a 20-hour workweek. Each employee would be entitled to 12 workweeks of FMLA leave. Not all employees are entitled to 480 hours of FMLA leave per year. How many hours of FMLA leave a particular employee is entitled to will depend upon an employee’s actual workweek.

If employee schedules vary from week to week to such an extent that an employer cannot determine how many hours a particular employee would otherwise have worked, look at the previous 12 months and come up with an average. This is the average hours worked per week, and this is what will be that employee’s workweek for the purposes of FMLA.

Continuous leave

• Unless a company’s activities temporarily cease for one or more weeks and employees generally are not expected to report for work, continuous FMLA leave has a clear beginning and end date.

Employees may take Family and Medical Leave Act (FMLA) leave for a continuous block of time, as opposed to intermittent or reduced schedule leave. Continuous leave is common when an employee has a baby and wishes to stay home for the full 12 weeks after the birth. It is also common when an employee takes time off to recover from a serious health condition.

Leaves taken in continuous blocks of time often have a clean beginning date and an end date, making it fairly clear cut.

If, however, employers have someone who will be on continuous leave and a holiday will occur during the leave, a holiday occurring within a week of leave taken for the whole workweek has no effect — the week is still counted as a week of FMLA leave.

If, however, a company’s activities temporarily cease for one or more weeks and employees generally are not expected to report for work, such as during a shutdown for holidays or to accommodate a slow period, an employer should not count the days on which activities have ceased against an employee’s FMLA leave entitlement.

Intermittent leave

• FMLA leave may be taken intermittently for certain qualifying reasons.

Intermittent leave involves taking Family and Medical Leave Act (FMLA) leave for one qualifying event in bits and pieces of time, somewhat like a reduced schedule, but the time off may not be regularly scheduled.

Intermittent leave can be taken under certain circumstances — when needed. It is up to the employer, however, whether or not to make intermittent leave available for bonding with a healthy child. The employee and employer must come to an agreement on this.

When medically necessary, FMLA leave for a serious health condition — either that of the employee or an employee’s immediate family member — may be taken intermittently. This is also true for qualifying exigency leave. This means that there is no requirement for employer/employee agreement.

If leave is being taken in less than full-week increments, such as intermittent or reduced schedule, and a holiday occurs, the holiday will not be counted as FMLA leave unless the employee is scheduled to work on that day and did not due to an FMLA-qualifying reason.

If an employee is normally required to work overtime, but is unable to do so because of an FMLA-qualifying reason that limits the ability to work overtime, the overtime hours which the employee would have been required to work may be counted against the employee’s FMLA entitlement. In such cases, the employee is using intermittent or reduced schedule leave.

When employees take intermittent leave for chronic serious health conditions (such as asthma), they may simply call in and indicate that the asthma has acted up and they need to stay home. Assuming that the employer was previously aware of this condition and had identified it as a serious health condition, it may count this against the federal leave allotment because the employee is staying home for a known serious health condition.

Only the amount of leave actually taken while on intermittent leave may be counted as FMLA leave. If an employee needs to take off for two hours for a medical appointment, only those two hours may be counted against the 12-week entitlement.

If employers have employees who are exempt under the Fair Labor Standards Act (FLSA) and, therefore, don’t keep records of the employees’ hours worked, the employer might not have records capturing what an employee’s actual workweek is. As such, employers might find it challenging to determine how much intermittent FMLA leave such employees are to receive.

For this type of situation, employers are expected to work with the employee to come up with an agreement on the employee’s normal schedule or average hours worked each week, and put that agreement in writing. Such an agreement would need to be retained per the FMLA record retention provision of at least three years.

When the leave is foreseeable, the employee is to try to schedule the leave so as not to unduly disrupt the company’s operations.

If leave is foreseeable based on planned medical treatment, the employer may transfer the employee to an alternate position to better accommodate the leave. This is allowed only for foreseeable leave, and not for unforeseeable intermittent leave.

Reduced schedule

• Under certain conditions, FMLA leave may be taken to reduce a person’s schedule.

A reduced schedule is one in which an employee takes time off under the Family and Medical Leave Act (FMLA), but doing so reduces the employee’s schedule.

A reduced schedule is permitted under certain conditions. It may be taken without the employer’s approval when medically necessary to care for a seriously ill family member, or because of the employee’s serious health condition. It may also be taken to bond with a newborn or newly placed adopted or foster care child, but only with the employer’s approval.

An employer may charge only the amount of leave actually taken while on a reduced schedule leave. Employers may not require employees to take more FMLA leave than necessary to address the circumstances that cause the need for leave.

When determining how much leave an employee is entitled to on a reduced leave schedule, keep in mind that the taking of FMLA leave is predicated on the employee’s normal workweek. If the employee’s usual or normal workweek is greater than 40 hours, the employee would be entitled to more than 480 hours of FMLA leave. An employee who normally works 50 hours per week would have 600 hours of FMLA leave.

Employees who need a reduced schedule leave for foreseeable medical treatment must work with employers to schedule the leave so as not to unduly disrupt operations, subject to the approval of the health care provider.

Smallest increment

• Employers must allow employees to use FMLA leave in the smallest increment of time allowed.

Family and Medical Leave Act (FMLA) leave may be taken in periods of whole weeks, single days, hours, and perhaps even less than an hour. When an employee takes FMLA leave on an intermittent or reduced schedule, an employer must allow employees to use FMLA leave in the smallest increment of time allowed for the use of other forms of leave, as long as it is no more than one hour.

If an employer uses different increments for different types of leave, it must allow FMLA leave to be used in the smallest increment used for any other type of leave.

Transfer to alternative position

• When the need for intermittent FMLA leave is foreseeable based on planned treatment, a company may transfer an employee to an alternative position.

Currently, transferring an employee on intermittent Family and Medical Leave Act (FMLA) leave to an alternative position is allowed only when the need for leave is foreseeable based on planned medical treatment.

When transferring an employee to an alternative position, an employer must provide the employee with the same pay rate and benefits the employee enjoyed prior to leave; however, it does not need to have equivalent duties.

If adversely affected by the transfer, an employee may refuse such a transfer.

Spouses sharing leave

• Spouses working for the company are entitled to 12 collective weeks of FMLA leave to bond with a healthy child by birth, adoption, placement of a child, or to take care of a parent with a serious health condition.

If both spouses work for a company, they are entitled to a collective total of 12 weeks of Family and Medical Leave Act (FMLA) leave for leave taken for bonding with a healthy child by birth, adoption, placement of a child, or to take care of a parent with a serious health condition. The spouses do not get 12 weeks FMLA leave each. This is, of course, only if both spouses are eligible. If only one is eligible, that one gets all of the leave.

This provision also applies only if the couple are legally married. This limitation does not apply to unmarried parents or to siblings employed by the same employer. It also does not apply for leave taken to care for the employee’s spouse, son, or daughter who has a serious health condition, or for the employee’s serious health condition that makes the employee unable to perform the job. For these reasons, each employee would be entitled to 12 weeks FMLA leave.

Where the spouses both use a portion of the total 12-week FMLA leave entitlement for the birth of a child, adoption or foster care, or to care for a parent, the spouses would each be entitled to the difference between the amount the employee has taken individually and 12 weeks of FMLA leave for other purposes.

Key definitions

• Key definitions during leave are defined by the FMLA.

Key definitions during Family and Medical Leave Act (FMLA) leave include the following:

Employment benefits: All benefits provided or made available to employees by an employer, including 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 benefit plan” as defined in section 3(3) of the Employee Retirement Income Security Act of 1974 (ERISA) 29 U.S.C. 1002(3). The term does not include non-employment related obligations paid by employees through voluntary deductions such as supplemental insurance coverage.

Group health plan: Any plan of, or contributed to by, an employer (including a self-insured plan) to provide health care (directly or otherwise) to the employer’s employees, former employees, or the families of such employees or former employees. For purposes of the Family and Medical Leave Act (FMLA), the term “group health plan” shall not include an insurance program providing health coverage under which employees purchase individual policies from insurers provided that:

• No contributions are made by the employer;
• Participation in the program is completely voluntary for employees;
• The sole function of the employer with respect to the program is, without endorsing the program, to permit the insurer to publicize the program to employees, to collect premiums through payroll deductions, and to remit premiums to the insurer;
• The employer receives no consideration in the form of cash or otherwise in connection with the program, other than reasonable compensation, excluding any profit, for administrative services actually rendered in connection with payroll deduction; and
• The premium charged with respect to such coverage does not increase in the event the employment relationship terminates.

While an employee is on leave, an employer is to maintain group health plan coverage in the same manner before leave began, avoid retaliating against the employee for taking leave, and avoid interfering with the employee’s leave.

Group health insurance

• A company must maintain group health plan coverage for eligible employees out on FMLA leave.

During Family and Medical Leave Act (FMLA) leave, employers must maintain coverage for eligible employees out on leave who have coverage under any group health plan. Just what constitutes a “group health plan” is defined, for purposes of FMLA, by the Internal Revenue Code (IRC).

According to the IRC, the term “group health plan” means a plan (including a self-insured plan) of, or contributed to by, an employer (including a self-employed person) or employee organization to provide health care (directly or otherwise) to:

• Employees,
• Former employees,
• The employer,
• Others associated or formerly associated with the employer in a business relationship, or
• The employee’s family members.

Whatever coverage a company provides, it needs to be maintained at the level and under the conditions coverage would have been provided if the employee had continued to work during the leave.

If changes occur to the group plan, such as an increase in premiums or a change in deductibles while an employee is out on leave, the changes are applied to the employee out on leave and to employees who are not out on leave. Again, the FMLA is protecting the employee’s job and its benefits.

If a company establishes a health benefits plan while an employee is out on leave, the employee would be entitled to health benefits, which would begin at the same point in time that non-leave employees would become entitled to such benefits. Employers need to let employees on leave know that the benefits are available in the same manner and time as provided for other employees.

An employee may choose to discontinue coverage during leave, perhaps because the employee wants to save on any employee share that is required to obtain this coverage. In this situation, the coverage may be suspended for that time. However, if the employee requests reinstatement, upon return to work, the employer must reinstate the employee’s coverage. This reinstatement must be to the same level of coverage that the employee had prior to leave, and it is to be done without any qualifying requirements such as physicals, pre-qualifying periods, or excluding pre-existing conditions.

There are other situations in which employers do not have to continue coverage. One is if the employee who is out on leave terminates the employment relationship. When the employment relationship ceases, so does the need to provide coverage. This applies to situations where the employee would have been terminated even if the employee had not been on leave.

In the event the employer violates the FMLA by failing to maintain the group health benefits as required, and dropping the employee’s coverage, it in effect becomes self-insured and liable for any medical expenses incurred by the employee that would have been covered by the group health plan.

In cases where an employee needs more leave time, some employers continue coverage even if the entitlement has been exhausted. Again, this is a matter of company policy and is not only a benefit to the employee but can save the FMLA administrator and/or benefits administrator the work of reinstating coverage when, or if, the employee does return.

For “key” employees, employers must continue to provide coverage until receiving word that the employee is not going to return to work, or until reinstatement is, in fact, denied.?

Other benefits

• The FMLA mandates that employers continue group health care benefits during an employee’s leave.
• Other benefits may still be offered, and employees may have certain rights governing the benefits.

The Family and Medical Leave Act (FMLA) does not mandate that employers continue coverage for benefits other than group health care benefits. A company may offer benefits beyond group health care coverage such as the following:

• Life insurance
• Disability insurance
• Sick leave
• Annual leave
• Education
• Retirement plans/Pensions

If a company has other benefits beyond group health care coverage, it will want to be aware of the policies governing the benefits and coverage continuation practices.

Employees on FMLA leave have certain rights regarding 401(k) plans. FMLA leave does not need to be credited as service for purposes of eligibility, vesting, or employer contributions. FMLA leave, however, cannot be counted as a break in service for eligibility or vesting purposes.

If the plan requires employees to be employed on a specific date in order to be credited with a year of service for eligibility, vesting, or contribution purposes, employees on unpaid FMLA leave on that date are deemed to have been employed on that date.

Employees who are eligible to participate in a 401(k) plan when FMLA leave begins would remain eligible for the 401(k) plan during and following leave. If the plan requires a minimum service requirement to receive employer contributions (for example, 1,000 hours of service for the plan year), it will not have to credit the period of FMLA leave as service for that purpose.

When an employee returns from FMLA leave, the company 401(k) plan must automatically resume contributions per the employee's prior deferral election if it is still effective. If the employee revoked the election, the employee must be offered the opportunity to make a new election as would other plan participants.

Employers must follow the established policy or practice for maintaining benefits such as life or disability insurance for workers on paid or unpaid FMLA leave. That is, any similarly situated employee who would be entitled to this benefit continuation must receive it, even though the employee is also on FMLA leave.

Employers do not have to maintain or restore non-employment-related health benefits paid directly by employees through voluntary deductions such as individual insurance policies.

Certain types of earned benefits, such as vacations, need not continue to accrue during periods of unpaid FMLA leave provided that such benefits do not accrue for employees on other types of unpaid leave. These “accruals” can include seniority and “point” forgiveness under a no-fault attendance policy.

Premium payments

• Employees on FMLA leave are responsible to pay the same share of the premiums as before leave.

Employees on Family and Medical Leave Act (FMLA) leave retain their responsibility to pay their share of the premium if already contributing a share of the premiums before leave. Employers may not impose a contribution requirement for employees on FMLA leave where it is not imposed on similarly situated active employees.

Employees are also responsible for policies for which they had been paying the total premium before leave began. Employees would need to make arrangements with the employer or insurance carrier for premium payments during the leave.

If an employee is substituting paid leave for FMLA leave (e.g., vacation), the payments are handled in the normal manner, usually via payroll deduction.

If the employee is not substituting paid leave for FMLA leave, the employer may have the employee submit the payments to the company, or directly to the insurance carrier. If employers have the employee submit payments to the company, and then it subsequently submits payments to the carrier, the employer may not charge the employee for this service.

Employers may use different options on a case-by-case approach to meet the particular needs of employees and the FMLA administrator, but the employer may not act in a discriminatory manner.

The employer must provide the employee with advance written notice of the terms for payment of such premiums. This is commonly done via the company response to a request for leave. Employers may not apply more stringent requirements to employees out on FMLA leave than required of employees out on other types of leave.

The options as to when the payments can be made include the following:

• Payment at the time due via payroll deduction,
• Payment due as under the Consolidated Omnibus Budget Reconciliation Act (COBRA),
• Prepaid pursuant to a cafeteria plan at the employee’s option,
• Payment due according to other existing leaves without pay, or
• Payment due per an agreed-upon system between the employer and employee.

Seniority and bonuses

• Employers are not required to allow seniority to accrue during an employee’s FMLA leave, but may not reduce seniority earned prior to leave.
• Employers may not use unpaid FMLA leave as a negative factor in employment actions, such as when paying out bonuses or other benefits.

Seniority is a type of earned benefit, much like a bonus, which need not continue to accrue during periods of unpaid Family and Medical Leave Act (FMLA) leave provided that such benefits do not accrue for employees on other types of unpaid leave. The employee does not, however, lose the seniority accrued prior to FMLA leave. Pay increases based on performance reviews conducted after 12 months of completed service with the company may be delayed by the amount of unpaid FMLA leave an employee takes during the 12-month period unless the company has policies that treat other forms of unpaid leave differently.

In contrast, a pay increase based on annual performance reviews geared to an employee’s entry on board anniversary date without regard to any unpaid leave taken during the period may not be denied or delayed once the employee returns from FMLA leave. Employers may not use unpaid FMLA leave as a negative factor in employment actions.

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 an employee did not meet 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.

Equivalent leave status refers, for example, to vacation leave, paid time-off, or sick leave. Leave for a reason that does not qualify as FMLA leave refers, for example, to vacation or sick leave that is not for an FMLA purpose (i.e., the vacation or sick leave is not also FMLA leave).

Employers may prorate certain bonus payments to employees on FMLA leave, so long as they limit such payments to employees on similar non-FMLA leaves types of leaves.

Bonuses do not include those awarded to all employees, such as holiday or company-wide bonuses.

Attendance

• A company may not use an absence for FMLA purposes to negatively impact an employee.

An absence for Family and Medical Leave Act (FMLA) purposes may not, generally, be considered by the employer for any reason that would have a negative impact on the employee. FMLA leave cannot be counted under “no fault” attendance policies or be the reason the employee receives discipline or other negative connotation.

Penalizing an employee for taking FMLA leave under a “no fault” attendance policy is distinct from disqualifying an employee from a bonus or award for attendance because the former faults an employee for taking leave itself whereas the latter denies a reward for achieving the job-related performance goal of perfect attendance.

Holidays

• Whether an employee takes FMLA leave in full- or less-than-full-week increments affects how a company counts a holiday against leave.

If an employee is taking Family and Medical Leave Act (FMLA) leave in full-week increments and a holiday occurs within a week of FMLA leave, it has no effect; the week is still counted as a week of FMLA leave.

If an employee is taking FMLA leave in less-than-full-week increments, the holiday will not count as FMLA leave unless the employee was otherwise scheduled and expected to work during the holiday.

Similarly, if company activities temporarily cease for one or more weeks and employees generally are not expected to report for work, the days on which company activities have ceased do not count against an employee’s FMLA leave.

An employee’s entitlement to holiday pay is determined by the company’s policy regarding when employees are on other forms of leave — paid or unpaid. Employers should treat employees on FMLA the same as employees on other forms of leave.

If employers have a policy that requires employees to be at work the day before and the day after a paid holiday to receive holiday pay, employers may apply it to employees who are on FMLA leave.

Status reports

• Employers may require employees out on FMLA leave to report on their status and intent to return to work.

While an employee is out on Family and Medical Leave Act (FMLA) leave, an employer may require the employee to report periodically on the employee’s status and intent to return to work if normal policies require this of employees on other leaves of absence and those on FMLA leave are not singled out. An employer may not discriminate in its leave practices regarding other protected classes such as gender, race, disability, religion, age, and national origin.

If an employee gives unequivocal notice of intent not to return to work, an employer’s obligations under the FMLA to maintain health benefits (subject to Consolidated Omnibus Budget Reconciliation Act—COBRA—requirements) and to restore the employee cease. If an employee indicates that the employee may be unable to return to work, but expresses a continuing desire to do so, an employer’s FMLA obligations continue.

Contact with the employee

• Employers may contact an employee out on FMLA leave, but may not require the employee to perform work.

The Family and Medical Leave Act (FMLA) does not specifically prohibit employers from contacting an employee while on FMLA leave. It does, however, prohibit employers from requiring that employees perform work while on FMLA leave.

The FMLA supports the need for effective communications between the employee and employer in making arrangements for continuation of work in progress when the need to take leave becomes known.

Such communications should not, however, go too far. Asking employees to otherwise perform work while on FMLA leave could be seen as interfering with their FMLA leave rights.

Discipline

• Employees on FMLA leave may still be disciplined, but not for taking or requesting leave.

Sometimes employee discipline is necessary to make the work environment safe and pleasant for both employees and management. Clear communication and consistency help build a foundation of trust between managers and employees, and this includes policies regarding discipline. When effective, employee discipline maintains order and respect in the workplace, benefiting everyone.

Just because an employee is on Family and Medical Leave Act (FMLA) leave does not necessarily protect the employee from discipline. If the discipline would occur whether the employee was on FMLA leave or not, it may still be applied. Employees may not, however, be disciplined because they requested or took FMLA leave.

Pay, benefits, and terms and conditions of employment

• Employees on FMLA leave are entitled to the same unconditional pay increases, such as cost of living raises, as employees who are not on leave.
• Employers must restore an employee’s benefits at the same level and manner as before leave.
• Employers may not use the taking of FMLA leave as a negative factor in employment actions such as a demotion.

An equivalent position includes equivalent pay, which includes any unconditional pay increases that may have occurred during the Family and Medical Leave Act (FMLA) leave period. Unconditional pay increases can include cost of living raises. Employees out on FMLA leave is entitled to such raises.

Other pay increases that are based on performance need not be provided to the employee while on FMLA leave. These increases would include those based on seniority, length of service, or production. The employee’s standing would pick up where the employer left off at the beginning of leave. If, however, the employer has a policy or practice to provide such increases to employees on other types of unpaid leave, it would have to provide the increases for FMLA leave as well.

Equivalent pay also includes bonuses or payments, whether discretionary or nondiscretionary. FMLA leave cannot undermine the employee’s right to such pay.

If company policy provides for such increases, employers do not have to include the time the employee is off on FMLA leave.

When an employee suffers a work-related injury that qualifies for workers’ compensation, and the injury is also a serious health condition under the FMLA, if the employee is released for light duty, the employer mat have the employee return to work in a light-duty position and pay the going rate for the light-duty position even if it is less than the pay for the original job. If the employee is working, even in a light-duty position, the employee is not on FMLA leave.

Benefits

The employer must also restore the benefits the employee enjoyed before going on FMLA leave. Benefits include group life insurance, health insurance, disability insurance, sick leave, vacation, educational benefits, and pensions. The employee is not entitled to accrue benefits while on leave, but taking leave cannot be held against the employee.

The benefits must be restored at the same level and manner that the employee had before leave.

Employers may not require the employee to requalify for coverage. Whatever coverage the employee had before leave is to be restored without question. Employers are to treat the employee as if the employee continued to work.

Terms and conditions of employment

Terms and conditions of employment include schedules/shifts, locations, duties, responsibilities, status, and privileges.

The position to which the employee is restored must also have the same or equivalent duties. Employers may not, for example, use FMLA leave as a reason for demotion.

Status and privileges can apply to a variety of job elements such as seniority, job duties, office size, responsibilities, or maybe even parking spots.

Changes in circumstances

• A company may require an employee out on FMLA leave to notify it at least two days in advance if situations change.

If situations change for an employee who is out on Family and Medical Leave Act (FMLA) leave, and this change affects when the employee is to return to work, the employer may require that the employee notify it of such a change at least two days in advance.

The requirement for notice of a change in circumstances may be applied, if the change is foreseeable, whether the employee needs to take more time, or less time away from work.

The FMLA does not extend restoration rights any greater than those an employee not taking FMLA leave would have had. In other words, employees do not have any greater entitlement to rights beyond those provided by the FMLA. Taking FMLA leave does not protect employees from changes at work.

As long as employers do not use FMLA leave as any part of a reason for termination, in these situations, reemployment is not mandatory. It would be difficult to restore someone to a position that no longer existed. In this regard, the employer’s obligation to provide FMLA entitlements ends when the employment relationship ends.

Although the job restoration provision is not absolute and employers may not need to restore employees under limited circumstances, it is important to note that employers would need to be able to prove why they did not restore the employee.

Termination

• A company may not use FMLA leave as a reason to terminate an employee.

Employers are prohibited from terminating an employee because the employee will take, is taking, or took Family and Medical Leave Act (FMLA) leave. If, however, the reason for a termination is not related to the FMLA leave, the termination may be valid.

The FMLA protections are not absolute. During a reduction-in-force, an employee may be selected for termination, as long as the decision was not based on the employee’s exercising FMLA rights.

Exhausting FMLA leave

• Once an employee exhausts FMLA leave, a company may need to provide more leave as a reasonable accommodation under the ADA.

Once an employee’s 12- or 26-week Family and Medical Leave Act (FMLA) entitlement is exhausted in the 12-month period, FMLA benefits and protections cease. This includes reinstatement protection. Employees retain retaliation protections.

If an employee exhausts FMLA leave and is still not able to perform the essential functions of the employee’s job, the employer may have considerations under the Americans with Disabilities Act (ADA), including providing reasonable accommodations.

Providing more leave beyond that to which an employee is entitled under the FMLA could be a reasonable accommodation under the ADA.

Employee resignation

• A company’s FMLA obligations generally end if an employee on leave chooses to resign.

An employee on Family and Medical Leave Act (FMLA) leave may choose to voluntarily resign. When that occurs and the employee lets the employer know that the employee is truly resigning and will not be returning to work, an employer’s FMLA obligations generally end at that point.

It is best to have the employee sign a document attesting that the employee is resigning, including the date the employee let the employer know of the resignation. The employee may want to defer the effective resignation date, but the employer is not required to allow that, at least for purposes of the FMLA.

Since the FMLA provides for job-protected leave, if the employee is not returning to work, there is no need to continue such job protection.

After returning to work

• In accordance with the ADA, a company may require an employee to submit to a medical examination after returning to work from FMLA if the request is job-related and consistent with business necessity.

The employer may require the employee to submit to a medical examination after returning to work from Family and Medical Leave Act (FMLA) leave, provided such examination is job-related and consistent with business necessity in accordance with the Americans with Disabilities Act (ADA).

An employer may not, however, deny job restoration to an employee who has been on FMLA leave while waiting for an “in-house” examination. The employee needs only to provide the employer with certification from a health care provider to qualify for job restoration.

Key employee

• If certain factors are met, the FMLA provides a limited exemption from the requirement that a company restore an employee to employment after leave.

A key employee is a salaried, eligible employee who is among the highest paid 10 percent of the company’s workforce within 75 miles of the facility where the employee works.

The Family and Medical Leave Act (FMLA) provides a limited exemption from the requirement that the employer restore an employee to employment after FMLA leave, provided the following factors are met:

• Denial of job restoration must be necessary to prevent “substantial and grievous economic injury” to a company’s operation;
• The employer must notify the employee of its intent to deny restoration under this exemption at the time it determines that such grievous economic injury would occur;
• If the leave has already begun, the employer must allow the employee an opportunity to choose to return to work after receiving the notice provided; and
• The exemption is limited to those employees meeting the definition of a “key employee.”

Even if the employee will be denied job restoration at the end of FMLA leave entitlement, the employer still must maintain health benefit coverage, and allow the employee the full use of the required FMLA leave time. This is true, even if the employee indicates that the employee does not intend to return to work in light of the risk of not being reinstated.

Key employees may request reinstatement at the end of FMLA leave even if they received notification that reinstatement would cause substantial and grievous economic injury.

If this happens, the employer must again, at that time, determine whether or not reinstatement would cause substantial and grievous economic injury, based on the information available at that time, and provide the decision to the employee.

If the employer fails to notify the employee of its decision to deny reinstatement, or if it is not done in a timely manner, the employer loses its right to deny reinstatement, even if doing so results in substantial and grievous economic harm to the company’s operations.

Personnel records

• A company must keep detailed records related to FMLA leave.

If an employer has employees who are eligible for Family and Medical Leave Act (FMLA) leave, it must maintain records that contain the following:

• Basic payroll and identifying employee data, including:
  • Name,
  • Address,
  • Occupation,
  • Rate or basis of pay and terms of compensation (i.e., benefits),
  • Daily and weekly hours worked per pay period,
  • Additions to or deductions from wages, and
  • Total compensation paid.
• Dates FMLA leave is taken by the eligible employee(s). Employers may want to include copies of timesheets or records, written requests for leave, etc.
• Leave clearly designated as FMLA leave. This does not include leave required under state law or if the company is not covered by FMLA.
• Specific hours of leave if it is taken in increments of less than one full day (see intermittent leave below for further explanation).
• Written copies of employee notices of leave given to the employer by an employee, and copies of all general and specific written notices given to employees as required under the FMLA.
• Any documents, including written and electronic records, describing employee benefits or a company’s policies and practices regarding the taking of paid and unpaid leaves.
• Premium payments of employee benefits.
• Records of any disputes between the employer and an eligible employee regarding designation of leave as FMLA leave, including any written statement from the employer or employee of the reasons for the designation and for the disagreement.

If an employer has airline flight crew employees, it must meet requirements beyond those for general FMLA leave. The employer must maintain records and documents containing information specifying the applicable monthly guarantee for each category of such employees, including copies of any relevant collective bargaining agreements or employer policy documents. The employer must also maintain records of hours worked and hours paid for those employees.

Covered employers must still maintain the records as described in the first point even if none of the employees are currently eligible for FMLA leave. This requirement is to enable employers to determine employee eligibility when necessary. Once a company has eligible employees, the rest of the recordkeeping requirements apply.

Intermittent leave

• Employers must record the specific hours of intermittent FMLA leave.

Intermittent leave does generally affect how employers keep Family and Medical Leave Act (FMLA) records but tracking such leave can be more challenging that leave taken continuously. As required, an employer must record the specific hours of leave when an employee takes leave in increments of less than one full day.

There is no required limit on the size of an increment of leave (minutes or hours). However, this time may be limited to the shortest period of time that employers use to account for other forms of absences, provided it is one hour or less. The intermittent leave should be tracked.

Medical records

• Employers are required to keep certain medical records pertaining to FMLA leave, and to keep them confidential.

In addition to records with various personnel information, employers must keep a second type of record relating to medical certifications, recertifications, or medical histories of employees or employees’ family members. The Family and Medical Leave Act (FMLA) requires medical records be kept strictly confidential and kept in separate files from employee’s personal information.

Limited exceptions exist:

• Supervisors or managers may be informed of necessary work restrictions and applicable accommodations;
• First aid and safety personnel may be informed if the employee’s physical or medical condition might require emergency treatment; and
• Government officials investigating FMLA compliance (or other pertinent law) must be given relevant information upon request.

Record retention

• A company must retain FMLA records on current and former employees for at least three years.

Family and Medical Leave Act (FMLA) records must be retained for a minimum of three years from the making of the record. This is true for current employees and former employees.

Under the FMLA, all records must be made available for official review, copying, and transcription upon request by the Department of Labor (DOL). If employers maintain records electronically, either by computer or on microfilm, the integrity of the information in the records must be preserved. Employers must also make these records readily available, if requested, for official review, no matter the media in which the records are maintained.

The DOL may not request to see an employer’s books or records more than once during any 12-month period unless the agency has reason to believe a violation of the FMLA exists or is investigating a complaint.

FMLA policy

• Employers should create an FMLA policy with company-specific details for employees.

One policy a company may create is an overall Family and Medical Leave Act (FMLA) policy. This broad policy should give employees more detailed information about the FMLA than the poster does, and include company-specific provisions such as the following:

• Which 12-month period the company is using to calculate leave;
• What employees cannot do while on FMLA leave;
• Who to contact regarding FMLA absences;
• That the company may request nonmedical confirmation of an absence requested under FMLA (such as confirmation of a medical appointment);
• That FMLA leave obtained fraudulently can result in termination;
• Procedures employees must follow, including completing and submitting a leave request form, if applicable;
• How FMLA leave is to be coordinated with other forms of leave;
• Whether or not employees will be required to substitute accrued paid leave for unpaid FMLA leave;
• Whether the company will agree to allow employees to take FMLA leave intermittently or on a reduced schedule for the birth or placement of a healthy child; and
• That the company requires all similarly situated employees to provide a fitness-for-duty certification before returning to work.

If collective bargaining agreements or other contracts are involved, the policy can address those implications, as well.

The company’s FMLA policy should contain information regarding the employee’s responsibility for communicating with the employer. This should include providing notice of the need for leave — including when, how, and to whom; the company’s ability to require certification supporting the need for leave; and the company’s ability to require status reports while an employee is on FMLA leave. The policy should be flexible to allow the company to apply its provisions when the circumstances call for it. It should also call out possible repercussions if employees do not comply with the provisions outlined in the policy.

Information review

• To prevent abuse, employers should thoroughly review information submitted by an employee for FMLA leave.

When employees are absent, employers have the right to know the reason for the absence, and this applies whether the reason qualifies for Family and Medical Leave Act (FMLA) or not. When employees give notice of the need for leave, they need to give the employer enough information, such as the reason and the duration of the absence. When an employee gives some information, review it.

An employer may not always be able to tell whether an employee is being honest about a given reason for an absence, which is one reason a certification can be very useful in undermining abuse.

Surveillance

• As a last resort, employers may use professional surveillance to help prove FMLA abuse.

Employers have, in the past, engaged the services of professional surveillance providers to determine whether employees are engaging in activities that would indicate Family and Medical Leave Act (FMLA) abuse. Courts have accepted such tactics, as long as the employer has an honest belief supporting the use of surveillance. Documenting such a belief can help support a company’s actions.

Surveillance should be an action of last resort, after exhausting actions such as second or third opinions and recertifications.

Personal and fitness-for-duty certifications

• Employers may request other certifications from employees on leave to help reduce FMLA abuse.

Two tools that might help curb leave abuse are personal and fitness-for-duty certifications. These are simple certifications.

Personal

For a personal certification, employees attest that a particular absence was for a Family and Medical Leave Act (FMLA)-qualifying reason or another legitimate reason.

Personal certifications may include the date(s) of leave, the reason, and an employee attestation that the information is accurate and not misleading.

While these are not mandated or prohibited by the Department of Labor, employers would need to be careful when considering use of the certifications. Don’t use them strictly for employees on FMLA leave.

Fitness-for-duty

Before employees may return to work for their own serious health condition, employers may want to require a fitness-for-duty certification.

Employers should have a uniformly applied policy or practice that requires all similarly situated employees who take leave for such condition to provide a fitness-for-duty certification.

Training

• Train supervisors and managers to observe employee behaviors and actions to help reduce FMLA abuse.

One of the best tools for curbing Family and Medical Leave Act (FMLA) abuse is an employee’s supervisor or manager.

These people are on the front line, so they are able to observe employee behaviors and actions, including when an employee is absent, and even perhaps why.

They should be trained to help determine whether the FMLA could be applicable to an absence, as well as providing information on any suspicious behaviors or patterns.

Treatment scheduling

• Employers can reasonably expect employees requesting intermittent FMLA leave to schedule treatments to not disrupt normal business operations.

If employees are taking intermittent leave for planned medical treatments (either their own or that of a family member), or for a qualifying exigency, the employer may require that the employees make a reasonable effort to schedule the treatment so as not to unduly disrupt the company’s operations.

Employees are expected to advise employers, upon request, of the reasons why the intermittent or reduced leave schedule is necessary and of the schedule for treatment, if applicable. The employer and the employee must attempt to work out a schedule for the leave that meets the employee’s needs without unduly disrupting company operations — subject to the approval of the health care provider.

Transferring employees

• Employers may transfer employees on intermittent FMLA leave to alternative positions only when the need for leave is foreseeable based on planned treatment.

Employers may transfer employees to alternative positions only when employees take foreseeable intermittent Family and Medical Leave Act (FMLA) leave based on planned treatment.

The employee would need to be qualified for the position, but such a transfer may better accommodate recurring periods of leave than does an employee’s regular position. An employer may also alter an existing job to better accommodate an employee’s need for intermittent or reduced schedule leave.

While an employee is in such an alternative position, the employer does not need to provide equivalent duties, but must provide the equivalent pay and benefits of the employee’s regular position. The employer may also transfer the employee to a part-time job with the same hourly rate of pay and benefits, as long as doing so does not increase the amount of leave that is medically necessary.

Employers may not use a transfer to discourage an employee’s use of FMLA leave.

When an employee no longer needs intermittent or reduced schedule leave, the employer would still need to return the employee to the regular position or an equivalent one.

Status reports

• It is lawful for employers to require employees on FMLA leave to periodically report on status and intent to return to work.

Employers may require employees on Family and Medical Leave Act (FMLA) leave to report periodically on the employees’ status and intent to return to work. The policy on this may not be discriminatory. Employers should also avoid having a blanket policy regarding how often employees provide such reports. The intervals must consider the facts and circumstances related to the employee and the situation.

The interval employers choose should not place an undue burden on the employee.

The occasion of employee status reports should not be an opportunity for employees to be pressured to return to work at a time that differs from the employee needs.

Documenting all absences

• A company should document all employee absences to help reduce FMLA abuse.

Documenting all absences, not only those related to Family and Medical Leave Act (FMLA), can provide employers with insight as to FMLA abuse.

If an employer has data on all absences an employee has taken, this can supply some underlying information in support of such an investigation.

If an employee’s vacation or other paid time off (PTO) request is denied, the employee may request FMLA for that same time period. If an employer is not aware of the vacation/PTO request, it may miss out on the link between the two.

Watching for abuse

• Employers may watch employees for patterns of absence as indicators of FMLA abuse.

Watch for patterns of absence, such as those occurring predominately on Fridays or Mondays (or both), or before and after a holiday. Such patterns could be a sign that an employee is looking to stretch out a weekend or holiday. Taking Family and Medical Leave Act (FMLA) leave the same time each year may also be a sign of potential abuse.

Listen to what other employees are saying about someone who is on leave. Coworkers can provide information about employees who are supposed to be out on leave, but the coworkers saw the employees doing something contradictory to the certified reason for leave.

If abuse is suspected, investigate. Talk to the employee in question. Often, such heightened attention will call the employee’s bluff.

Responding to misuse

• Several steps may be taken by employers if an employee is suspected of FMLA leave abuse.

If an employer learns that an employee has obtained Family and Medical Leave Act (FMLA) leave fraudulently, for example, by not being honest about the real reason for the absence, employers may turn to company policies. Employees who fraudulently obtain FMLA leave are not protected by the law’s job restoration or maintenance of health benefits provisions.

Employers who don’t already have one may want to include a provision in their FMLA policy that if an employee is found to have obtained FMLA fraudulently, it may result in discipline up to and including termination. This is also something a company may include in communications with employees, particularly ones suspected of misuse.

The following steps may be taken when FMLA leave abuse is suspected:

• Open an investigation,
• Review all the related records and documents,
• Talk to the employee and others who might be witness to suspicious behavior,
• Talk to the employee’s manager to see if coworkers have been indicating suspicious behavior, and
• Ask for a recertification to substantiate (or not) the suspicious leave pattern/behavior.

If the employer continues to have an honest belief that the employee is using FMLA leave fraudulently, it may hire a professional entity to perform surveillance.

Workers’ compensation

• In certain situations, workers’ compensation can run concurrently with FMLA leave.

Family and Medical Leave Act (FMLA) leave and workers’ compensation can run concurrently, as long as the injury or illness falling under workers’ compensation also qualifies as a serious health condition.

Although FMLA is unpaid, a company may still have to provide workers’ compensation benefits if the serious health condition is job related. However, just because an employee is taking FMLA leave, does not automatically mean that the reason qualifies for workers’ compensation benefits.

Employers need to check state workers’ compensation requirements, qualifying elements, and entitlements to ensure compliance.

Americans with Disabilities Act (ADA)

• Once FMLA leave has run out, employers may be obligated to grant additional unpaid leave as a reasonable accommodation of the ADA.

When employees exhaust their 12 weeks of Family and Medical Leave Act (FMLA) leave and still cannot return to work due to their own medical impairment, employers may have an obligation under the Americans with Disabilities Act (ADA) to grant additional unpaid leave as a reasonable accommodation, in some situations. An interactive process is necessary to determine — on a case-by-case basis — if it is an ADA-qualifying situation, and if it is possible to extend the leave period without it posing an undue hardship on the business. A disability is not necessarily the same as a serious health condition. A disability is an impairment that substantially limits one or more major life activities.

There is no obligation under the FMLA for an employer to notify employees when their leave is about to expire, or to proactively ask if a reasonable accommodation is needed under the ADA. Employers may, however, notify employees in advance, in writing, of the date of leave expiration and then request information regarding the ability to return to work, including an anticipated date of return. As part of this process, employers may also inform employees of the option to engage in a discussion about accommodations under the ADA to assist employees in returning to work, or to request additional leave because they are unable to return to work upon the expiration of the FMLA leave.

If extended leave is needed under the ADA, employers may request medical documentation to substantiate the existence of an ADA-qualifying disability and also the need for the accommodation. Not all employees who qualify for an FMLA leave of absence due to a serious health condition will qualify for an ADA accommodation, although many employees with medical impairments will.

Under the ADA, when an employee requests an accommodation, employers are to engage in the interactive process with the employee, with a goal of identifying possible reasonable accommodations. There are no required steps outlined for this process, but they could look like the following:

• Recognize an accommodation request,
• Gather information,
• Explore accommodation options,
• Choose an accommodation (if one is identified),
• Implement the chosen accommodation, and
• Monitor the accommodation.

Unlike the FMLA, under the ADA, there is no specific amount of leave time that is required as an accommodation. Thus, it is up to the employer’s discretion to determine if and how much leave is reasonable.

Employers need not provide an accommodation that poses an undue hardship, so that might be part of the determination in relation to how much leave is reasonable. Unlimited leave is not considered reasonable.

Under the ADA, employers must maintain group health insurance coverage for an employee taking leave or working part-time only if a company also provides coverage for other employees in the same leave or part-time status, and the coverage must be provided at the same terms and levels.

When ADA leave is granted, the company is expected to hold the employee’s position for the duration of leave, unless doing so will pose an undue hardship.

The ADA does not apply to time off to care for a spouse, son, daughter, parent, or other family member with a disability.

Genetic Information Nondiscrimination Act (GINA)

• Employers receiving lawful medical information in connection with an FMLA leave request do not violate GINA.

Title II of the Genetic Information Nondiscrimination Act (GINA) deals with employment discrimination.

GINA prohibits the use of genetic information in employment, prohibits the intentional acquisition of genetic information about applicants and employees, and imposes strict confidentiality requirements. The provisions apply to private and state and local government employers with 15 or more employees, employment agencies, labor unions, and joint labor-management training programs.

Employers that inadvertently receive genetic information in response to a lawful request for medical information under such a law would not violate GINA. This would include, for example, where an employer received genetic information in connection with a Family and Medical Leave Act (FMLA) leave request. The certification forms generally include a GINA warning not to provide such information.

Uniformed Services Employment and Reemployment Rights Act (USERRA)

• Employers must follow USERRA regulations when determining certain employee’s FMLA leave eligibility.

USERRA is the Uniformed Services Employment and Reemployment Rights Act. It provides reemployment rights for veterans and members of the National Guard and Reserve following qualifying military service.

USERRA requires that returning servicemembers receive all employment benefits owed as if continuously employed, with some exceptions such as accrued paid time off.

Employees must be given credit for any months they would have been employed but for the military service in determining eligibility for Family and Medical Leave Act (FMLA) leave toward the 12-months-of-employment eligibility requirement. Each month served in the military counts as a month actively employed.

Employees returning to work should also be credited with the hours of service that would have been performed but for the period of military service in determining whether they meet the 1,250 hours worked FMLA eligibility criterion.

Consolidated Omnibus Budget Reconciliation Act (COBRA)

• Taking FMLA leave is not a COBRA-qualifying event, but other events could be.

The Consolidated Omnibus Budget Reconciliation Act (COBRA) requires employers to offer a qualified beneficiary the opportunity to purchase continuation coverage under the company’s group health plan upon the occurrence of a qualifying event. The taking of Family and Medical Leave Act (FMLA) leave is not a qualifying event. If an employee on FMLA leave notifies the company that the employee will not be returning to work, or simply does not return to work after leave, a company must determine when the qualifying event occurred.

A qualifying event occurs if the following happens:

• 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;
• The employee does not return to employment at the end of 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 before the end of what would have been the maximum coverage period. The coverage would have the same terms and conditions as for similarly situated active employees and spouses and dependent children.

A COBRA-qualifying event does not occur if employees fail to pay their portion of premiums for group health plan coverage during FMLA leave or if the employee declines coverage during FMLA leave.

Health Insurance Portability and Accountability Act (HIPAA)

• Employees are responsible for providing sufficient FMLA leave certification to employers, including HIPAA authorizations to release necessary information.

Employees on Family and Medical Leave Act (FMLA) leave may be visiting their health care provider in part to obtain a certification. The health care provider may want to return the completed certification directly to the employer. However, the health care provider is most likely prohibited from releasing such information to the employer without the authorization from the employee.

If an employee chooses not to provide the health care provider with authorization to release the information to the employer, the certification may be held up and the employer may not be able to ascertain whether an absence qualifies for FMLA protections.

It is the employee’s responsibility to provide the health care provider with any necessary authorization in order for the health care provider to release a complete and sufficient certification to the employer to support the employee’s FMLA request. This can be avoided by having the health care provider give the completed certification to the employee, and the employee, in turn, gives it to the employer.

If an employer receives a certification that requires authentication or clarification, the employer may contact the health care provider directly. This may require a Health Insurance Portability and Accountability Act (HIPAA) authorization from the employee so the health care provider may disclose protected health information to the employer. If an employee chooses not to provide the employer or health care provider with authorization allowing the employer to clarify the certification with the health care provider and does not otherwise clarify the certification, the employer may deny the taking of FMLA leave if the certification is unclear. It is the employee’s responsibility to provide the employer with a complete and sufficient certification and to clarify the certification if necessary.

Types of claims

• Two types of employee claims against employers are recognized by the FMLA.

The Family and Medical Leave Act (FMLA) recognizes two types of claims: interference claims, in which employers burden or outright deny rights to which employees are entitled, and retaliation claims, in which employers take adverse employment actions against employees for exercising the FMLA right to take leave.

To establish an interference claim, an employee (plaintiff) would need to show the following:

• He or she was an eligible employee,
• The employer was subject to the FMLA,
• He or she was entitled to leave under the FMLA,
• He or she gave the employer notice of the intention to take FMLA leave, and
• The employer denied FMLA benefits to which the employee was entitled.

To establish a retaliation claim, an employee (plaintiff) would need to show the following:

• The employee engaged in an activity protected by the FMLA,
• The employer took an adverse employment action against the employee, and
• There was a causal connection between the protected activity and the adverse employment action.

Employers may not interfere with or restrain or deny any employee who exercises a right to FMLA protections. Employers may not discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by the Act. Employers cannot use the request or taking of FMLA leave as a negative employment action.

To interfere not only includes denying authorization for or discouraging an employee to take FMLA leave, but it also includes manipulation to avoid responsibilities.

Employee rights

• Employees have a number of FMLA rights that are enforceable.

There are three categories of rights under the Family and Medical Leave Act (FMLA): substantive, proscriptive, and remedial.

Substantive rights include an employee's right to take a certain amount of unpaid medical leave each year and the right to reinstatement following such leave.

Proscriptive rights include an employee's right to be free from discrimination or retaliation for exercising substantive FMLA rights.

The remedial right is an employee's right of action or right to bring an action or claim to recover damages or obtain equitable relief from an employer that violates the FMLA.

The regulation, by specifying “rights under FMLA” refers to all rights under the FMLA, includes the right to bring an action or claim for a violation of the Act.

Even employees who wish to waive prospective FMLA rights may not. Nor may employers induce employees to waive these rights.

Corporate officers, managers, and supervisors, or anyone acting in the interest of an employer could, under certain circumstances, be held individually liable for violations of the law. These situations would require the manager to have been a decision-maker regarding the action that allegedly violated the law.

Penalties and courts

• Employers may be penalized for various FMLA violations.
• Many court actions involve the FMLA.

The Family and Medical Leave Act (FMLA) carries various penalties. If employers fail to post the FMLA poster so employees and applicants can see it, the company may be assessed a civil monetary penalty of $204 for each separate offense. This notice must be posted even if the company has no eligible employees.

If a company violates the FMLA, the penalties will depend upon the violation and how it is handled. In general, an employee who files a claim may receive the following remedies:

• Wages;
• Employment benefits;
• Other compensation lost or denied by reason of the violation;
• If no wages or other compensation have been lost, any actual monetary losses sustained, up to 12 weeks of wages;
• Interest on each sum, calculated at the prevailing rate;
• Liquidated damages equal to the above sum unless the employer had reasonable grounds for believing it was not in violation;
• Reasonable attorney fees;
• Reasonable expert witness fees; and/or
• Reinstatement and/or employment promotion as appropriate.

The remedies may also include overtime pay.

If an employee files a claim or an organization is targeted for an audit, the company is required to cooperate with requests made by the U.S. Department of Labor (DOL) or court. The DOL generally will make efforts to resolve most compliance issues administratively. If representatives of the DOL visit an organization to investigate and gather data concerning employment practices, the company must allow the DOL to enter and inspect the company premises and records, and question employees in order to determine whether any person has violated the applicable provisions.

Courts

Numerous court actions have involved the FMLA. The statute, regulations, and agency guidance do not cover all FMLA details that may arise.

Many cases focus on the definition of a serious health condition. Others deal with employer and employee notice requirements, health care providers, the inability of the employee to the job after FMLA leave, intermittent leave, and medical certification.

When it comes to the courts, it may help to know which states are covered by the circuits.

• The First Circuit includes the states of Massachusetts, Maine, New Hampshire, and Rhode Island.
• The Second Circuit includes the states of Connecticut, New York, and Vermont.
• The Third Circuit includes the states of Delaware, New Jersey, and Pennsylvania.
• The Fourth Circuit includes the states of Maryland, North Carolina, South Carolina, Virginia, and West Virginia.
• The Fifth Circuit includes the states of Louisiana, Mississippi, and Texas.
• The Sixth Circuit includes the states of Kentucky, Michigan, Ohio, and Tennessee.
• The Seventh Circuit includes the states of Illinois, Indiana, and Wisconsin.
• The Eighth Circuit includes the states of Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota.
• The Ninth Circuit includes the states of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.
• The Tenth Circuit includes the states of Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming.
• The Eleventh Circuit includes the states of Alabama, Florida, and Georgia.
• The DC Circuit includes the District of Columbia.

Supervisor/Manager training

• While not required, employers can train manager and supervisors on aspects of FMLA leave to help avoid a claim.

The Family and Medical Leave Act (FMLA) does not mandate training for managers/supervisors or for employees. It also does not mandate training for leave administrators.

Providing training to managers and supervisors can help avoid an FMLA claim. Managers and supervisors work with your employees and may have information that can have an impact on FMLA leave taking.

If the company is a covered employer, supervisors and managers will need to know where the FMLA poster is if employees ask about it. They also need to know what criteria must be met for an employee to be eligible for leave, along with the qualifying reasons for FMLA. With this information, managers and supervisors will know whether an absence may be covered by FMLA. Basic knowledge of what is a serious health condition will help to avoid employees falling through the cracks.

Since one of the criteria of a serious health condition is inpatient care, the employer may want managers and supervisors to know that if an employee calls in with an absence in which hospitalization is involved for the employee or a close family member of the employee, it’s very likely an FMLA-qualifying event.

Another indication is that of doctor visits. When a supervisor or manager hears of these situations, the person should know that these cases may qualify for FMLA and to make this information known to the appropriate person for further review.

Supervisors and managers also need to know that it is unlawful to interfere with, restrain, or deny the exercise of any right provided by the FMLA.

It is also unlawful to discharge or discriminate against any individual for opposing any practice or because of involvement in any proceeding related to the FMLA.

Supervisors and managers should not shut down communication with an employee on FMLA leave, but ensure that it keeps going. Failure to do so can create issues.

Supervisors and managers may need to know when one of their employees will be gone so the work can be covered and, that upon return from FMLA leave, the employee will be restored to the original position or an equivalent position.

One last thing supervisors and managers will need to know is who to inform of any possible FMLA absence information. If an employer only provides one contact person, it may want to consider who would be a backup to that person.

Managers and supervisors may not need to know all the details of leave taken under the FMLA. The employer will have to decide just how much information is needed based on the FMLA and ADA restrictions.

Employee training

• A company can train its employees on important FMLA information to reduce unqualifying requests.

Some employers prefer to train employees regarding Family and Medical Leave Act (FMLA) rights and responsibilities — perhaps with a focus on the latter. Such training might be done once a year to provide information to newly eligible employees regarding what is expected should they need FMLA leave. While the FMLA eligibility/rights and responsibilities notice and designation notice provide some information, many people learn better from formats beyond reading.

Employee training could benefit from topics such as when to request leave (perhaps in conjunction with the company’s call-in policy), who to contact, how to request it, and even what information to provide. Employers could also include what would not constitute a notice of the need for leave, such as simply calling in sick.

The training can also cover the eligibility criteria so employees will have a better idea of how many months and hours must be worked to be eligible to take FMLA leave.

Other important information for employees would be the reasons for which they may take FMLA leave. With this, a company may also indicate examples of reasons that do not qualify for FMLA leave, such as babysitting or caring for a sibling (barring in loco parentis). If employees are more familiar with the reasons that do and don’t qualify for FMLA leave, employers might not get as many requests for leave that does not qualify.

Reminding employees that, without the FMLA protections, their job would not be protected. This can help inspire employees to provide complete and sufficient certifications when requested to do so.

Of course, the certification also warrants some attention. This could include what makes a certification complete and sufficient, how long employees have to return a certification, and to whom it should be provided.

Other communications, such as periodic status reports may also be covered, as well as other memos, letters, policies, and so on that the company prefers to share with employees in FMLA leave situations.

The goal of almost any leave provision is to get the employee back to work. Therefore, a discussion about what is expected when an employee’s FMLA leave is over can help. This could include information about accommodations under the Americans with Disabilities Act (ADA), or other applicable laws or policies.

12 months

• Some exceptions apply to the FMLA criteria that an employee must have worked for the company for 12 months, though the months need not be consecutive.

The 12 months that an employee must have worked for the company to be eligible to take Family and Medical Leave Act (FMLA) leave need not be consecutive. Employment periods prior to a break in employment of seven years or more, however, need not be counted in determining whether the employee has been employed for the company for at least 12 months.

There are exceptions. Employment periods preceding a break of more than seven years must be counted where:

• The employee’s break in employment was to fulfill National Guard or Reserve military obligations. The time served performing the military service must also be counted in determining whether the employee has been employed for at least 12 months for the company. However, employees don’t have any greater entitlement than under the Uniformed Services Employment and Reemployment Rights Act (USERRA).
• A written agreement including a collective bargaining agreement exists concerning the employer’s intention to rehire the employee after the break in service (for example, for the purpose of an employee furthering education or for childrearing).

Occasionally, an employee will need leave before meeting the 12-month eligibility criterion. In that situation, the employer would count only leave taken after the employee meets that criterion as FMLA leave. Any leave taken before the employee meets the criterion, however, would not be counted as FMLA leave.

1,250 hours

• As part of determining if an employee is eligible to take FMLA leave, an employer must determine if the employee has hours enough worked.
• An employer should count regular and overtime hours toward an employee’s qualifying FMLA leave criteria of 1,250 hours worked.

When an employee notifies a company of the need for Family and Medical Leave Act (FMLA) leave, the employer must determine if the employee has worked enough hours to be eligible for leave. Employees must have worked at least 1,250 hours in the 12 months before leave is to begin.

Hours worked: A concept taken from the FLSA and governed under 29 CFR 785. Hours worked generally includes only hours actually worked and in which the employee performs service for the employer, but also include waiting time, on duty, off duty, on-call, and time used for rest.

When it comes to counting the 1,250 hours worked, all hours worked, regular and overtime, are to be included. With a few exceptions, hours not actually worked are not to be counted. Such time off as vacation, annual or sick leave, paid or unpaid holidays, or Family and Medical Leave Act (FMLA) leave is not counted.

If employers have employees who are sometimes on call, the hours of service generally include only all “duty” time. The FMLA again turns to the Fair Labor Standards Act (FLSA). On-call time is not counted unless the use of the time is so restricted the employee is not able to use the time for the employee’s own purposes. An employee who is required to remain on call while at home, or who is allowed to leave a message where the employee can be reached, or who carries a pager for call response is not working (in most cases) while on call. Additional constraints on the employee’s freedom could require this time to be compensated.

All periods of absence from work due to or necessitated by leave under the Uniformed Services Employment and Reemployment Rights Act (USERRA) are to be counted in determining an employee’s eligibility for FMLA leave. This means that, for example, if an employee was on military leave for six months, the time spent during those six months would be counted toward the employee’s eligibility criteria of working for the company for 12 months and 1,250 hours in the preceding 12 months before leave began.

The employer needs to look at the hours the employee worked. This would include hours worked from home or another location away from the general worksite if the employer has constructive knowledge of the employee’s hours worked.

For those employees for whom employers do not keep records of hours worked, such as those who are considered exempt under the FLSA, if the employee has worked for the employer for at least 12 months, these employees are presumed to have worked the minimum number of hours, unless the employer proves differently.

When looking at the hours-of-service requirement, look at the previous 12 months as 52 weeks.

When figuring out if an employee has met the 1,250 hours of service and 12-month requirements, an employer must make this determination as of the date the leave begins. Generally, eligibility does not carry over from one leave year to the next.

50 employees, 75 miles

• The last of the three employee eligibility criteria is that of working at a site with at least 50 company employees within 75 miles of the worksite.

The last of the criteria for employee eligibility for Family and Medical Leave Act (FMLA) leave requires that employees work at a site with at least 50 company employees within 75 miles of the worksite. If employers have only one worksite, this test will be easy: If there are at least 50 employees, employees will meet this eligibility test. If a company has multiple locations, temporary help offices, and satellite offices, this can be more of a challenge.

The employee count at a location depends on the number of employees who are on the payroll as of the date an employee requests leave. This is different than the 12-month/1,250-hour determination, which needs to be made as of the date leave begins.

Part-time and full-time employees, and employees on paid or unpaid leaves of absence are all included for the 50/75 count. Employers do not have to count employees who have been laid off, whether or not the layoff is temporary, indefinite, or long-term.

If an employee requests leave at a time when an employer has fewer than 50 employees within 75 miles, the employee may resubmit the request if the employee count rises to 50 or more. On the other hand, if an employee requests leave at a time when an employer has 50 or more employees, the employer may not rescind the granting of the employee’s leave just because the employee total has fallen below 50 by the time the leave begins.

Employers should measure the 75-mile distance by surface miles using available transportation by the most direct route between worksites. This is not always on the basis of a radius.

An employee’s private residence is not considered a worksite. Rather, the employee’s worksite is the location from which assignments come and to where the employee generally reports. An employee who works from her home in Cincinnati but reports to an office in Chicago would have Chicago as her worksite.