Family and Medical Leave Act

Eligible employees

Most eligible employees are those who:

1. Have been employed by the employer for at least 12 months (need not be consecutive),
2. Have worked at least 1,250 hours in the 12-month period prior to beginning the leave, and
3. Work at a location with 50 or more company employees within 75 miles of that location.

Employers have to look back only as far as seven years to determine if an employee has worked for the company previously to determine the 12 months eligibility criterion.

The employee is counted as employed if he or she was on the payroll for any part of a week, including periods of sick leave or vacation or when other benefits have been provided, such as disability or workers’ compensation. However, paid time off (sick leave, vacation, holiday pay, etc.) does not have to be counted to determine if the 1,250 hours worked criteria has been met.

Airline crewmembers, must meet the following eligibility criteria:

1. Worked or been paid for at least 60% of the applicable total monthly guaranty for the previous 12-month period, and
2. Worked or been paid for at least 504 hours (not including personal commute time or time spent on vacation or medical/sick leave) during the previous 12-month period.

The “applicable monthly guarantee” is the minimum number of hours for which an employer has agreed to schedule an employee for any given month, and the number of hours for which an employer has agreed to pay an employee on reserve status for any given month as established in an applicable collective bargaining agreement or by employer policy.

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

Reasons for leave

Employers covered by the law must allow eligible employees unpaid, job-protected leave in a 12-month period for any of the reasons listed below. Also, any group health benefits must be maintained during the leave.

1. The birth and care of an employee’s newborn child (12 weeks),
2. The adoption of a child by the employee or placement of a foster child with the employee (12 weeks),
   *Note: The above leave must be taken within 12 months of the birth or placement of the child.
3. The care of an immediate family member (parent, spouse, or child) with a serious health condition (12 weeks),
4. The inability of the employee to work because of a serious health condition (12 weeks),
5. A qualifying exigency caused by a family member’s military duty (12 weeks), or
6. The care of a family member seriously injured or made ill in the line of active military duty, or the aggravation of a pre-existing condition as a result of active duty, including such conditions which arise up to five years after the individual leaves the military service (26 weeks).

There is a special provision for spouses employed by the same employer. They may be limited to a combined 12 weeks of leave in the following situations:

• Bonding with a newborn child.
• Bonding with an adopted or fostered child.
• Care of an employee’s parent who has a serious health condition.

Spouses employed by the same employer may also be limited to a combined total of 26 weeks of leave to care for a servicemember.

Notices and communication

Covered employers must post a notice of FMLA rights; this must be done even if the employer has no eligible employees (such as locations with fewer than 50 employees). If an employer has an eligible employees, the same information contained in the poster (also known as the General Notice), must be included in the handbook or other written guidance to employees. If the employer has no employee handbook, a copy of the General Notice must be provided to employees upon hire . Electronic posting is allowed.

Upon learning of the need for leave, eployers must provide employees with information on the employees' eligibility as well as their rights and responsibilities. This must be provided to employees within five days of learning of the need for leave.

This “rights and responsibilities notice” is also to include such information as the following:

• That leave may be designated and counted against the employee’s leave allotment
• Certification requirements in support of the need for leave
• The amount of leave counted against the FMLA, if known (if it’s not known, the employer must provide the amount of time counted against the FMLA entitlement upon the employee’s request, but no more often than once every 30 days)
• The right to substitute accrued paid leave
• The right to group health care coverage continuation during leave
• Requirements for group health care premium payments
• The employee’s status as a “key” employee

The employer may require employees to provide a certification in support of the need for leave. Such a requirement is to be included in the rights and responsibilities information. The FMLA has five different certification forms for different situations:

• Certification of employee’s serious health condition
• Certification of a family member’s serious health condition
• Certification of qualifying exigency for military family leave
• Certification of serious injury or illness of current covered servicemember
• Certification of a serious injury or illness of a veteran.

Employees must provide certification within 15 days if requested by the employer.

Certifications for medical situations might include diagnosis, medication, and symptoms. Employers may not, however, demand that a diagnosis be included. Certifications should be used to establish that the employee cannot perform essential functions of the job, that a family member needs care, or that a qualifying exigency exists.

Employers may require employees to provide complete and sufficient certification, meaning nothing is missing, vague, or misleading in the certification. Employers must, in writing, let employees know if a certification needs fixing. Employees must fix any certification problems within seven days, or risk denial of their leave.

Employers may require a second opinion from another health care provider, as long as that health care provider is not one under contract with the employer. If the second opinion differs from the first, the employer may authorize a third opinion. All expenses for the second and third opinions are the employer’s responsibility. Obtaining the opinions is the employee’s responsibility.

If leave is foreseeable, the employee must give notice as soon as practicable, preferably at least 30 days in advance. If leave is unforeseeable, the employee must give notice as soon as possible. Employees are to provide sufficient information to allow the employer to determine whether the FMLA applies.

When an employee seeks leave for the first time for an FMLA-qualifying event, the employee need not expressly assert FMLA rights or even mention the FMLA. When an employee seeks leave for which the employer has previously provided, the employee must specifically reference either the qualifying reason of the need for FMLA leave. Simply “calling in sick” with no other information is not sufficient FMLA notice. Employees are expected to follow the employer’s usual call-in procedures for reporting an absence.

Employers may need to obtain more information, and employees are to answer employer questions relating to FMLA qualification.

After receiving sufficient information, the employer is to provide the employee with information on whether the leave will or will not be designated as FMLA and counted against the employee’s 12- or 26-week entitlement.

This “designation notice” is to be provided within five days of obtaining sufficient information. If the employer will require a fitness-for-duty certification at the end of leave, this requirement must be included in the designation notice.

Retroactive designation is allowed if it does not cause harm to the employee.

The new incarnation of the FMLA stresses the importance of communication between the employer and employee. It offers employers new and revised forms as tools for communicating with employees and health care providers. While you must use the poster as written, you may create your own certification forms. You may not, however, require the employee to provide more information than required under the FMLA regulations. You may want to use the prepared forms as guides.

Serious health condition

Serious health conditions under the law involve certain illnesses, injuries, impairments, or physical or mental conditions. These include the following:

• Any inpatient care in a medical facility;
• Any incapacity of more than three consecutive, full, calendar days that also involves treatment by a health care provider;
• Any incapacity relating to pregnancy or prenatal care;
• Any incapacity due to a chronic serious health condition, such as asthma or epilepsy;
• Any incapacity due to a permanent or long-term condition that may not be treatable, such as Alzheimer’s or terminal diseases; or
• Absences for the purpose of receiving multiple treatments, or recovery from such treatments, for any condition that would probably result in three or more day’s absence if left untreated, such as chemotherapy or dialysis.

Serious health conditions that involve more than three calendar days must include at least two visits to their health care provider within 30 days of any incapacity. The first visit must be within seven days of the incapacity; or one visit followed by a regimen of continuing treatment.

Chronic conditions must include a visit to the health care provider at least twice per year.

Qualifying exigencies

Qualifying exigencies include situations that need immediate attention because of a family member’s “covered active duty.” Qualifying exigencies include the following:

• Short-term deployment notice (limited to seven days from notification)
• Military events and related activities
• Childcare and school activities
• Financial and legal arrangements (limited to 90 days if after the termination of active duty)
• Rest and recuperation (limited to 15 days for each instance)
• Post-deployment activities (limited to 90 days after termination of duty)
• Parental care
• Additional activities agreed upon by the employer and employee.

The term “covered active duty” includes deployment to a foreign country.

Servicemember care

Eligible employees may take up to 26 weeks of leave to care for a family member who was seriously injured or made ill in the line of active military duty. Such leave is also available if the injury or illness resulted from the aggravation of an existing or pre-existing condition as a result of active duty.

Servicemember care is also available for family members of veterans when treatment, recuperation, or therapy for a serious injury or illness begin within five years after the member left military service. For example, the family members of a veteran who suffers from Post Traumatic Stress Disorder may be entitled to take such leave.

The 26 weeks is a separate leave year than other types of leave; it does not matter what the employer has identified as the leave year for the other reasons for leave. It runs on a “measured forward” basis and begins at the time the employee first takes leave and runs for 12 months from that date.

Leave taken during the 12-month period for servicemember care is limited to a combined total of 26 weeks. Therefore, during that separate 12-month period, if an employee takes two weeks off to care for a child, the employee would have 24 weeks remaining to care for a servicemember. Where the servicemember care leave year does not overlap with the leave year for other reasons, the total is not combined.

Intermittent leave

Leave may be taken for larger blocks of time, but FMLA also allows for leave to be taken on an intermittent basis. Employers may grant intermittent leave for bonding with a healthy newborn or newly placed child, but they are not required to do so.

Paid leave

FMLA generally provides for unpaid time off. Employees may request or employers may require that employees use accrued paid leave time during an absence qualifying as FMLA. In such situations, FMLA and accrued time off would run concurrently. Employers must adhere to existing paid-leave policies that cover all employees.

Return to work

“Job protection” means employees must be restored to their original position, or to an equivalent one with equal pay and equivalent responsibilities upon the end of leave.

There is an exception for “key employees.” Key employees are highly-paid, salaried employees whose reinstatement would cause “substantial and grievous economic injury” to the employer’s operations. In this case, the employer must provide notice to the employee of his or her key employee status and the reason for denying job restoration. Reasonable efforts must be made to allow the employee to return to work after such notification.

Employees may be required to provide a fitness-for-duty certification if this requirement was made known to the employees in the designation notice. Employees are responsible for obtaining and paying for any fitness-for-duty certifications.

Recordkeeping

Miscellaneous FMLA facts

• If a bonus or other payment is based on achieving a specified goal such as working a certain number of hours, and the employee missed the goal due to FMLA leave, the bonus may be denied.
• Light duty work cannot be counted against an employee’s FMLA entitlement.
• FMLA leave to care for a pregnant woman is allowed for a spouse, but not to a boyfriend or fiancé who is the father of the child.
• Holidays are not counted toward an employee’s FMLA leave time for intermittent leave, unless the employee had been expected to work the holiday.
• The smallest FMLA increment that can be taken is no greater than the shortest period of time used to account for other forms of leave, but not greater than one hour.
• Required overtime that is missed because of a qualifying FMLA reason may be counted against the employee’s FMLA entitlement.
• Employees are not automatically entitled to intermittent or reduced schedule FMLA leave for bonding with a healthy child. They may do so only if the employer agrees.