FMLA

Scope

The federal Family and Medical Leave Act (FMLA) applies to all:

Regulatory citations

• None

Key definitions

• None

Summary of requirements

FMLA entitles eligible employees to take up to 12 weeks of unpaid, job-protected leave in a 12-month period for specified family, medical, and military family-related qualifying demands. Eligible employees may take up to 26 weeks of FMLA military caregiver leave in a single 12-month period.

The Airline Flight Crew Technical Corrections Act allows for alternative employee FMLA eligibility criteria for airline crewmembers who could not otherwise meet the original criteria due to FAA regulations.

The law contains provisions for employer coverage; employee eligibility, entitlement to leave, maintenance of health benefits during leave, job restoration after leave; notice and certification of the need for FMLA leave; and protection for employees who request or take FMLA leave. The law also requires employers to keep certain records.

Employee eligibility. To be eligible for FMLA benefits, an employee who works for a covered employer must:

• Have worked for the employer for a total of 12 months;
• Have worked at least 1,250 hours in the 12 months before leave is to begin; and
• Work at a location with at least 50 company employees within 75 miles.

For airline flight crewmembers, they must meet the following criteria to be eligible for FMLA benefits:

• Worked or been paid for at least 60 percent of the applicable total monthly guarantee, or equivalent, for the previous 12-month period; and
• Worked or been paid for at least 504 hours during the previous 12-month period.

The latter does not count personal commute time or time spent on vacation or medical or sick leave.

An “applicable total monthly guarantee” is the minimum number of hours for which you have agreed to schedule an employee for any given month, and the number of hours agreed to pay an employee on reserve status for any given month as established in a collective bargaining agreement or your employer policies.

Employers must maintain on file with the Department of Labor, information specifying the applicable monthly guarantee with respect to each category of employees to which the guarantee applies.

Leave entitlement. A covered employer must grant an eligible employee up to a total of 12 workweeks of unpaid job-protected eave during any 12-month period for one or more of the following reasons:

• For the birth and care of a newborn child;
• For placement with the employee of a child for adoption or foster care;
• To care for an immediate family member (spouse, child, or parent) with a serious health condition;
• If the employee is unable to work because of a serious health condition;
• To handle qualifying exigencies (demands) caused by a family member’s military service.

An eligible employee may take up to 26 weeks of FMLA military caregiver leave.

Employees may take a total combined leave of 26 weeks for qualifying reasons during the caregiver leave year — basically when the two leave years overlap. For example, if an employee were to take 12 weeks of leave for the birth of a child, when the employee went on military caregiver leave, a new leave year would begin. Military caregiver leave must be run on a measured forward basis, no matter what leave year is identified for the other reasons for leave.

Military caregiver. A covered servicemember is a member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list for a serious illness or injury. A covered servicemember includes veterans who are undergoing medical treatment, recuperation, or therapy and who were members of the Armed Forces (including the National Guard or Reserves) at any time during the five-year period preceding the date on which the treatment, recuperation, or therapy began.

The serious illness or injury is one incurred by the member in the line of duty on active duty that may render the member medically unfit to perform the duties of the member’s office, grade, rank, or rating. A serious illness or injury can result from the aggravation of a pre-existing condition due to active duty, as well as the manifestation of a condition which requires treatment, recuperation, or therapy within five years after the individual leaves the military.

For the purposes of the 26 weeks of leave, an employee must be the spouse, son, daughter, parent, or next of kin of a covered service member. “Next of kin” is the nearest blood relative of the individual.

Qualifying exigency. Qualifying exigencies are situations that require a rather immediate response as exigencies make urgent demands. They involve a family member who is a covered servicemember. Qualifying exigencies include the following:

• Short-notice deployment (seven days or less)
• Military events and related activities
• Childcare and school activities
• Financial and legal arrangements
• Rest and recuperation (15 days)
• Post-deployment activities (90 days)
• Parental care
• Other agreed upon by employer and employee

Time for childcare allows employees to arrange for alternative childcare, or to provide childcare on an urgent, immediate need basis, but not on a routine, regular, or everyday basis.

Parental care includes arranging for alternative care, or providing care on an urgent, immediate need basis.

Leave to handle qualifying exigencies is available to family members of the Regular Armed Services as well as reserve components. The term “covered active duty” is to involve deployment to a foreign country.

Maintenance of health benefits. A covered employer is required to maintain group health insurance coverage for an employee on FMLA leave whenever such insurance was provided before the leave was taken and on the same terms as if the employee had continued to work. If applicable, arrangements will need to be made for employees to pay their share of health insurance premiums while on unpaid leave.

Job restoration. Upon return from FMLA leave, employees must be restored to their original job, or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment.

In addition, an employee’s use of FMLA leave cannot result in the loss of any employment benefit that the employee earned or was entitled to before using FMLA leave, nor be counted against the employee under a “no fault” attendance policy.

Under specified and limited circumstances where restoration to employment will cause substantial and grievous economic injury to its operations, an employer may refuse to reinstate certain highly-paid “key” employees after using FMLA leave.

To refuse reinstatement to key employees, an employer must notify the employee in writing of the following:

• The employee’s status as a key employee, and
• The reason(s) for denying job restoration.

The employer must also provide employees a reasonable opportunity to return to work after being notified of their status as a key employee.

Notices and certification. Covered employers must post a notice approved by the Secretary of Labor explaining rights and responsibilities under FMLA (the general notice).

Covered employers must also inform employees of their rights and responsibilities under FMLA, including giving specific written information on what is required of the employee and consequences of failing to meet the responsibilities.

To help accomplish this, employers must provide employees an eligibility/rights and responsibilities notice within five days of being put on notice of the need for leave.

Employers may usually require employees to provide:

• Certification supporting the need for leave;
• Second or third medical opinions (at the employer’s expense) and periodic recertification (not for military caregiver or qualifying exigency leave);
• Periodic reports during FMLA leave regarding the employee’s status and intent to return to work; and
• A fitness-for-duty report certifying that the employee is able to resume work when the leave was taken for the employee’s own serious health condition.

In the rights and responsibilities notice, employers are to indicate whether they will require certification of the need for leave. The employee then has 15 days to provide it. There are separate certification forms for the different types of leave:

• Leave to care for the employee’s own serious health condition
• Leave to care for a family member’s serious health condition
• Leave to handle a qualifying exigency due to active military duty
• Leave for military caregiver of current servicemember
• Leave for military caregiver of veteran

If the employee provides an incomplete or insufficient certification, the employer must provide the employee, in writing, what the certification needs to make it complete and/or sufficient. The employee then has seven days to provide corrections.

Upon obtaining enough information to determine whether the absence qualifies for FMLA, employers have five days to provide the employee with a designation notice. This must include information on whether the leave will be designated as FMLA qualifying. If the employer wants to require a fitness-for-duty certification, this requirement must be indicated in the designation notice. If the employer would like the health care provider to address the employee’s fitness for duty in regard to the essential functions of the job, the employer must provide a list of these essential functions.

Employees seeking to use FMLA leave must provide 30-day advance notice of the need to take FMLA leave when the need is foreseeable and such notice is practicable. For unforeseeable leave, the employee must provide notice as soon as practicable and reasonable.

Employees who do not provide enough information to employers in regard to leave may risk denial of the leave.

Records. An employer must develop and retain two basic types of FMLA records. The first encompasses various personnel information, and the second type includes those relating to medical certifications, recertifications, or medical histories of employees or employees’ family members. All employee medical information is to be kept confidential and separate from general personnel files. FMLA records are to be kept for at least three years.

Unlawful acts. It is unlawful for any employer to interfere with, restrain, or deny the exercise of any right provided by FMLA. It is also unlawful for an employer to discharge or discriminate against any individual for opposing any practice, or because of involvement in any proceeding, related to FMLA.

Enforcement. The Wage and Hour Division of the Department of Labor investigates complaints. If violations cannot be satisfactorily resolved, the U.S. Department of Labor may bring action in court to compel compliance. Individuals may also bring a private civil action against an employer for violations.

State provisions. The FMLA does not supersede any state or local law that provides greater family or medical leave protection. Employers must comply with the more beneficial provision, provided that the employee is eligible for coverage under that law.

States may have statutes that affect an employee’s right to leave for particular purposes such as pregnancy, attendance at school activities, organ or blood marrow donations, worker’s compensation, and disability. States may also regulate by separate statute or regulation leave and related provisions for employees of state, county, and other governmental agencies.