FMLA
For more detailed information please go
to www.dol.gov/
Click here for a printable version
The Family and Medical Leave Act ("FMLA")
provides certain employees with up to 12 workweeks of unpaid,
job-protected leave a year, and requires group health benefits to
be maintained during the leave as if employees continued to work
instead of taking leave. This Compliance Guide summarizes
the FMLA provisions and regulations
1, and provides answers to the
most frequently asked questions. More detail on the FMLA may be
found in the regulations (29 CFR Part 825
).
Summary
The FMLA
became effective August 5, 1993, for most employers and
employees. (For those covered by a collective bargaining agreement
(CBA) in effect on that date, the FMLA became effective on the
expiration of the CBA or February 5, 1994, whichever was earlier.)
This law
covers only certain employers; affects only those employees
eligible for the protections of the law; involves entitlement to
leave, maintenance of health benefits during leave, and job
restoration after leave; sets requirements for notice and
certification of the need for FMLA leave; and protects employees
who request or take FMLA leave. The law also includes
certain employer recordkeeping requirements
.
Purposes of the FMLA
The FMLA
allows employees to balance their work and family life by taking
reasonable unpaid leave for certain family and medical reasons.
The FMLA seeks to accomplish these purposes in a manner that
accommodates the legitimate interests of employers, and minimizes
the potential for employment discrimination on the basis of
gender, while promoting equal employment opportunity for men and
women.
Employer Coverage
FMLA applies to
all:
·
public agencies,
including State, local and Federal employers, and local education
agencies (schools); and,
·
private sector
employers who employ 50 or more employees for at least 20
workweeks in the current or preceding calendar year ¾ including
joint employers and successors of covered employers.
For FMLA
purposes, most Federal and Congressional employees are under the
jurisdiction of the U.S. Office of Personnel Management (OPM) or
the Congress.
Employee Eligibility
To be eligible
for FMLA leave, an employee must work for a covered employer
and:
have worked for that employer for at
least 12 months; and
have worked at least 1,250 hours
during the 12 months prior to the start of the FMLA leave; and,
work at a location where at least 50
employees are employed at the location or within 75 miles of the
location.
Leave Entitlement
A covered
employer must grant an eligible employee up to a total of 12
workweeks of unpaid leave in a 12 month period for one or
more of the following reasons:
·
for the birth of a son
or daughter, and to care for the newborn child;
·
for the placement with
the employee of a child for adoption or foster care, and to care
for the newly placed child;
·
to care for an
immediate family member (spouse, child, or parent -- but not a
parent "in-law") with a serious health condition; and
·
when the employee is
unable to work because of a serious health condition.
Leave to care
for a newborn child or for a newly placed child must conclude
within 12 months after the birth or placement. (See
CFR Section 825.201 )
Spouses
employed by the same employer may be limited to a combined
total of 12 workweeks of family leave for the
following reasons :
·
birth and care of a
child;
·
for the placement of a
child for adoption or foster care, and to care for the newly
placed child; and,
·
to care for an
employee's parent who has a serious health condition.
Intermittent/Reduced Schedule Leave
- The FMLA permits employees to take leave on an intermittent
basis or to work a reduced schedule under certain circumstances.
CFR Section 203)
·
Intermittent/reduced
schedule leave may be taken when medically
necessary to care for a seriously ill family member, or
because of the employee's serious health condition.
·
Intermittent/reduced
schedule leave may be taken to care for a newborn or newly placed
adopted or foster care child only with the employer's approval.
Only the
amount of leave actually taken while on intermittent/reduced
schedule leave may be charged as FMLA leave. Employees may not be
required to take more FMLA leave than necessary to address the
circumstances that cause the need for leave. Employers may account
for FMLA leave in the shortest period of time that their payroll
systems use, provided it is one hour or less. (See
CFR Section 825-205 )
Employees
needing intermittent/reduced schedule leave for foreseeable
medical treatment must work with their employers to schedule the
leave so as not to unduly disrupt the employer's operations,
subject to the approval of the employee's health care provider. In
such cases, the employer may transfer the employee temporarily to
an alternative job with equivalent
pay and benefits that accommodates recurring periods of leave
better than the employee's regular job.
Substitution of Paid Leave
- Employees may choose to use, or employers may require the
employee to use, accrued paid leave to cover some or all of
the FMLA leave taken. Employees may choose, or employers may
require, the substitution of accrued paid vacation or
personal leave for any of the situations covered by FMLA. The
substitution of accrued sick or family leave is limited by the
employer's policies governing the use of such leave.
Serious Health Condition
- "Serious health condition"
means an illness, injury, impairment, or physical or mental
condition that involves:
·
any period of
incapacity or treatment connected with inpatient care (i.e., an
overnight stay) in a hospital, hospice, or residential medical
care facility; or
·
a period of incapacity
requiring absence of more than three calendar days from
work, school, or other regular daily activities that also involves
continuing treatment by (or under the supervision of) a health
care provider; or
·
any period of
incapacity due to pregnancy, or for prenatal care; or
·
any period of
incapacity (or treatment therefore) due to a chronic serious
health condition (e.g., asthma, diabetes, epilepsy, etc.); or
·
a period of incapacity
that is permanent or long-term due to a condition for which
treatment may not be effective (e.g., Alzheimer's, stroke,
terminal diseases, etc.); or,
·
any absences to
receive multiple treatments (including any period of recovery
there from) by, or on referral by, a health care provider for a
condition that likely would result in incapacity of more than
three consecutive days if left untreated (e.g., chemotherapy,
physical therapy, dialysis, etc.).
Medical Certification
- An employer may require that the need for leave for a serious
health condition of the employee or the employee's immediate
family member be supported by a certification issued by a health
care provider. The employer must allow the employee at least 15
calendar days to obtain the medical certification.
An employer
may, at its own expense, require the employee to obtain a second
medical certification from a health care provider. The employer
may choose the health care provider for the second opinion, except
that in most cases the employer may not regularly contract with or
otherwise regularly use the services of the health care provider.
If the opinions of the employee's and the employer's designated
health care providers differ, the employer may require the
employee to obtain certification from a third health care
provider, again at the employer's expense. This third opinion
shall be final and binding. The third health care provider must be
approved jointly by the employer and the employee. The
"Certification of Health Care Provider" (optional form
WH-380 ) may be used to obtain
the certifications.
Health Care Provider
- Health care providers who may provide certification of a serious
health condition include:
·
doctors of medicine or
osteopathy authorized to practice medicine or surgery (as
appropriate) by the State in which the doctor practices;
·
podiatrists, dentists,
clinical psychologists, optometrists, and chiropractors (limited
to treatment consisting of manual manipulation of the spine to
correct a subluxation as demonstrated by X-ray to exist)
authorized to practice in the State and performing within the
scope of their practice under State law;
·
nurse practitioners,
nurse-midwives, and clinical social workers authorized to practice
under State law and performing within the scope of their practice
as defined under State law;
·
Christian Science
practitioners listed with the First Church of Christ, Scientist in
Boston, Massachusetts;
·
any health care
provider recognized by the employer or the employer's group health
plan's benefits manager; and,
·
a health care provider
listed above who practices in a country other than the United
States and who is authorized to practice under the laws of that
country.
Maintenance of Health
Benefits
A covered
employer is required to maintain group health insurance coverage,
including family coverage, for an employee on FMLA leave on the
same terms as if the employee continued to work.
Where
appropriate, arrangements will need to be made for employees
taking unpaid FMLA leave to pay their share of health insurance
premiums. For example, if the group health plan involves
co-payments by the employer and the employee, an employee on
unpaid FMLA leave must make arrangements to pay his or her normal
portion of the insurance premiums to maintain insurance coverage,
as must the employer. Such payments may be made under any
arrangement voluntarily agreed to by the employer and employee.
An employer's
obligation to maintain health benefits under FMLA stops if and
when an employee informs the employer of an intent not to return
to work at the end of the leave period, or if the employee fails
to return to work when the FMLA leave entitlement is exhausted.
The employer's obligation also stops if the employee's premium
payment is more than 30 days late and the employer has given the
employee written notice at least 15 days in advance advising that
coverage will cease if payment is not received.
In some
circumstances, the employer may recover premiums it paid to
maintain health insurance coverage for an employee who fails to
return to work from FMLA leave.
Other
Benefits - Other
benefits, including cash payments chosen by the employee instead
of group health insurance coverage, need not be maintained during
periods of unpaid FMLA leave.
Certain types
of earned benefits, such as seniority or paid leave, 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. For other benefits, such as elected life insurance
coverage, the employer and the employee may make arrangements to
continue benefits during periods of unpaid FMLA leave. An employer
may elect to continue such benefits to ensure that the employee
will be eligible to be restored to the same benefits upon
returning to work. At the conclusion of the leave, the employer
may recover only the employee's share of premiums it paid to
maintain other "non-health" benefits during unpaid FMLA leave.
Job Restoration
Upon return
from FMLA leave, an employee must be restored to his or her
original job, or to an "equivalent" job, which means
virtually identical to the original job in terms of pay, benefits,
and other employment terms and conditions.
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 (but not necessarily during) FMLA leave.
"Key" Employee Exception
- Under 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, salaried "key" employees. In order to do so, the
employer must notify the employee in writing of his/her status as
a "key" employee (as defined by FMLA), the reasons for denying job
restoration, and provide the employee a reasonable opportunity to
return to work after so notifying the employee.
Notice
Employee Notice
- Eligible employees seeking to use FMLA leave may
be required to provide:
·
30-day advance notice
of the need to take FMLA leave when the need is foreseeable;
·
notice "as soon as
practicable" when the need to take FMLA leave is not foreseeable
("as soon as practicable" generally means at least verbal notice
to the employer within one or two business days of learning
of the need to take FMLA leave);
·
sufficient information
for the employer to understand that the employee needs leave for
FMLA-qualifying reasons (the employee need not mention FMLA when
requesting leave to meet this requirement, but may only explain
why the leave is needed); and,
·
where the employer was
not made aware that an employee was absent for FMLA reasons and
the employee wants the leave counted as FMLA leave, timely notice
(generally within two business days of returning to work)
that leave was taken for an FMLA-qualifying reason.
Employer Notices
- Covered employers must take the following steps to provide
information to employees about FMLA:
·
post a notice approved
by the Secretary of Labor (WH Publication 1420) explaining
rights and responsibilities under FMLA;
·
include information
about employee rights and obligations under FMLA in employee
handbooks or other written material, including Collective
Bargaining Agreements (CBAs); or
·
if handbooks or other
written material do not exist, provide general written guidance
about employee rights and obligations under FMLA whenever an
employee requests leave (a copy of Fact
Sheet No. 28 will fulfill this requirement); and
·
provide a written
notice designating the leave as FMLA leave and detailing specific
expectations and obligations of an employee who is exercising
his/her FMLA entitlements. The employer may use the "Employer
Response to Employee Request for Family or Medical Leave"
(optional form WH-381 to meet
this requirement. This employer notice should be provided to the
employee within one or two business days after
receiving the employee's notice of need for leave and include the
following:
·
that the leave will be
counted against the employee's annual FMLA leave entitlement;
·
any requirements for
the employee to furnish medical certification and the consequences
of failing to do so;
·
the employee's right
to elect to use accrued paid leave for unpaid FMLA leave and
whether the employer will require the use of paid leave, and the
conditions related to using paid leave;
·
any requirement for
the employee to make co-premium payments for maintaining group
health insurance and the arrangement for making such payments;
·
any requirement to
present a fitness-for-duty certification before being restored to
his/her job;
·
rights to job
restoration upon return from leave;
·
employee's potential
liability for reimbursement of health insurance premiums paid by
the employer during the leave if the employee fails to return to
work after taking FMLA leave; and
·
whether the employee
qualifies as a "key" employee and the circumstances under which
the employee may not be restored to his or her job following
leave.
Unlawful Acts
FMLA makes it
unlawful for any employer to interfere with, restrain, or deny the
exercise of any right provided by this law. 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.
Employers
cannot use the taking of FMLA leave as a negative factor in
employment actions, such as hiring, promotions, or disciplinary
actions; nor can FMLA leave be counted under "no fault" attendance
policies.
Enforcement
FMLA is
enforced by the Wage and Hour Division of the U.S. Department of
Labor's Employment Standards Administration. This agency
investigates complaints of violations. If violations cannot be
satisfactorily resolved, the Department may bring action in court
to compel compliance.
An eligible
employee may bring a private civil action against an employer for
violations. An employee is not required to file a complaint with
the Wage and Hour Division prior to bringing such action.
Other Provisions
Some special
rules apply to employees of local education agencies.
Generally, these rules provide for FMLA leave to be taken in
blocks of time when the leave is needed intermittently or when
leave is required near the end of a school term (semester).
Several States
and other jurisdictions also have family or medical leave laws. If
both the Federal law and a State law apply to an employer's
operations, an employee is entitled to the most generous benefit
provided under either law.
Employers may
also provide family and medical leave that is more generous than
the FMLA leave requirements.
The FMLA does
not modify or affect any Federal or State law which prohibits
discrimination.
Questions and Answers
Q: How
much leave am I entitled to under FMLA?
If you are an
"eligible" employee, you are entitled to 12 weeks of leave for
certain family and medical reasons during a 12-month period.
Q: How is
the 12-month period calculated under FMLA?
Employers may
select one of four options for determining the 12-month period:
·
the calendar year;
·
any fixed 12-month
"leave year" such as a fiscal year, a year required by State law,
or a year starting on the employee's "anniversary" date;
·
the 12-month period
measured forward from the date any employee's first FMLA leave
begins; or
·
a "rolling" 12-month
period measured backward from the date an employee uses FMLA
leave.
Q: Does
the law guarantee paid time off?
No. The FMLA
only requires unpaid leave. However, the law permits an employee
to elect, or the employer to require the employee, to use accrued
paid leave, such as vacation or sick leave, for some or all of the
FMLA leave period. 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.
Q: Does
workers' compensation leave count against an employee's FMLA leave
entitlement?
It can. FMLA
leave and workers' compensation leave can run together, provided
the reason for the absence is due to a qualifying serious illness
or injury and the employer properly notifies the employee in
writing that the leave will be counted as FMLA leave.
Q: Can
the employer count leave taken due to pregnancy complications
against the 12 weeks of FMLA leave for the birth and care of my
child?
Yes. An
eligible employee is entitled to a total of 12 weeks of FMLA leave
in a 12-month period. If the employee has to use some of that
leave for another reason, including a difficult pregnancy, it may
be counted as part of the 12-week FMLA leave entitlement.
Q: Can
the employer count time on maternity leave or pregnancy disability
leave as FMLA leave?
Yes. Pregnancy
disability leave or maternity leave for the birth of a child would
be considered qualifying FMLA leave for a serious health condition
and may be counted in the 12 weeks of leave so long as the
employer properly notifies the employee in writing of the
designation.
Q: If an
employer fails to tell employees that the leave is FMLA leave, can
the employer count the time they have already been off against the
12 weeks of FMLA leave?
In most
situations, the employer cannot count leave as FMLA leave
retroactively. Remember, the employee must be notified in writing
that an absence is being designated as FMLA leave. If the employer
was not aware of the reason for the leave, leave may be designated
as FMLA leave retroactively only while the leave is in progress or
within two business days of the employee's return to work.
Q: Who is
considered an immediate "family member" for purposes of taking
FMLA leave?
An employee's
spouse, children (son or daughter), and parents are immediate
family members for purposes of FMLA. The term "parent" does not
include a parent "in-law." The terms son or daughter do not
include individuals age 18 or over unless they are "incapable of
self-care" because of a mental or physical disability that limits
one or more of the "major life activities" as those terms are
defined in regulations issued by the Equal Employment Opportunity
Commission (EEOC) under the Americans With Disabilities Act (ADA).
Q: May I
take FMLA leave for visits to a therapist, if my doctor prescribes
the therapy?
Yes. FMLA
permits you to take leave to receive "continuing treatment by a
health care provider," which can include recurring absences for
therapy treatments such as those ordered by a doctor for physical
therapy after a hospital stay, or for treatment of severe
arthritis.
Q: Which
employees are eligible to take FMLA leave?
Employees are
eligible to take FMLA leave if they have worked for their employer
for at least 12 months, and have worked for at least 1,250 hours
over the previous 12 months, and work at a location where at least
50 employees are employed by the employer within 75 miles.
Q: Do the
12 months of service with the employer have to be continuous or
consecutive?
No. The 12
months do not have to be continuous or consecutive; all time
worked for the employer is counted.
Q: Do the
1,250 hours include paid leave time or other absences from work?
No. The 1,250
hours include only those hours actually worked for the employer.
Paid leave and unpaid leave, including FMLA leave, are not
included.
Q: How do
I determine if I have worked 1,250 hours in a 12-month period?
Your
individual record of hours worked would be used to determine
whether 1,250 hours had been worked in the 12 months prior to the
commencement of FMLA leave. As a rule of thumb, the following may
be helpful for estimating whether this test for eligibility has
been met:
·
24 hours worked in
each of the 52 weeks of the year; or
·
over 104 hours worked
in each of the 12 months of the year; or
·
40 hours worked per
week for more than 31 weeks (over seven months) of the year.
Q: Do I
have to give my employer my medical records for leave due to a
serious health condition?
No. You do not
have to provide medical records. The employer may, however,
request that, for any leave taken due to a serious health
condition, you provide a medical certification confirming that a
serious health condition exists.
Q: Can my
employer require me to return to work before I exhaust my leave?
Subject to
certain limitations, your employer may deny the continuation of
FMLA leave due to a serious health condition if you fail to
fulfill any obligations to provide supporting medical
certification. The employer may not, however, require you to
return to work early by offering you a light duty assignment.
Q: Are
there any restrictions on how I spend my time while on leave?
Employers with
established policies regarding outside employment while on paid or
unpaid leave may uniformly apply those policies to employees on
FMLA leave. Otherwise, the employer may not restrict your
activities. The protections of FMLA will not, however, cover
situations where the reason for leave no longer exists, where the
employee has not provided required notices or certifications, or
where the employee has misrepresented the reason for leave.
Q: Can my
employer make inquiries about my leave during my absence?
Yes, but only
to you. Your employer may ask you questions to confirm whether the
leave needed or being taken qualifies for FMLA purposes, and may
require periodic reports on your status and intent to return to
work after leave. Also, if the employer wishes to obtain another
opinion, you may be required to obtain additional medical
certification at the employer's expense, or recertification during
a period of FMLA leave. The employer may have a health care
provider representing the employer contact your health care
provider, with your permission, to clarify information in the
medical certification or to confirm that it was provided by the
health care provider. The inquiry may not seek additional
information regarding your health condition or that of a
family member.
Q: Can my
employer refuse to grant me FMLA leave?
If you are an
"eligible" employee who has met FMLA's notice and certification
requirements (and you have not exhausted your FMLA leave
entitlement for the year), you may not be denied FMLA
leave.
Q: Will I
lose my job if I take FMLA leave?
Generally, no.
It is unlawful for any employer to interfere with or restrain or
deny the exercise of any right provided under this law. Employers
cannot use the taking of FMLA leave as a negative factor in
employment actions, such as hiring, promotions or disciplinary
actions; nor can FMLA leave be counted under "no fault" attendance
policies. Under limited circumstances, an employer may deny
reinstatement to work – but not the use of FMLA leave – to certain
highly-paid, salaried ("key") employees.
Q: Are
there other circumstances in which my employer can deny me FMLA
leave or reinstatement to my job?
In addition to
denying reinstatement in certain circumstances to "key" employees,
employers are not required to continue FMLA benefits or reinstate
employees who would have been laid off or otherwise had their
employment terminated had they continued to work during the FMLA
leave period as, for example, due to a general layoff.
Employees who
give unequivocal notice that they do not intend to return to work
lose their entitlement to FMLA leave.
Employees who
are unable to return to work and have exhausted their 12 weeks of
FMLA leave in the designated "12 month period" no longer have FMLA
protections of leave or job restoration.
Under certain
circumstances, employers who advise employees experiencing a
serious health condition that they will require a medical
certificate of fitness for duty to return to work may deny
reinstatement to an employee who fails to provide the
certification, or may delay reinstatement until the certification
is submitted.
Q: Can my
employer fire me for complaining about a violation of FMLA?
No. Nor can
the employer take any other adverse employment action on this
basis. It is unlawful for any employer to discharge or otherwise
discriminate against an employee for opposing a practice made
unlawful under FMLA.
Q: Does
an employer have to pay bonuses to employees who have been on FMLA
leave?
The FMLA
requires that employees be restored to the same or an equivalent
position. If an employee was eligible for a bonus before taking
FMLA leave, the employee would be eligible for the bonus upon
returning to work. The FMLA leave may not be counted against the
employee. For example, if an employer offers a perfect attendance
bonus and the employee has not missed any time prior to taking
FMLA leave, the employee would still be eligible for the bonus
upon returning from FMLA leave.
On the other
hand, FMLA does not require that employees on FMLA leave be
allowed to accrue benefits or seniority. For example, an employee
on FMLA leave might not have sufficient sales to qualify for a
bonus. The employer is not required to make any special
accommodation for this employee because of FMLA. The employer
must, of course, treat an employee who has used FMLA leave at
least as well as other employees on paid and unpaid leave (as
appropriate) are treated.
For more
information, please contact the nearest
office of the Wage and Hour Division; or access the
FMLA page on the DOL internet.
Fact Sheet
No. 028
THE FAMILY AND MEDICAL
LEAVE ACT OF 1993
The U.S.
Department of Labor's Employment Standards Administration, Wage
and Hour Division, administers and enforces the Family and Medical
Leave Act (FMLA) for all private, state and local government
employees, and some federal employees. Most Federal and certain
congressional employees are also covered by the law and are
subject to the jurisdiction of the U.S. Office of Personnel
Management or the Congress.
FMLA became
effective on August 5, 1993, for most employers. If a collective
bargaining agreement (CBA) was in effect on that date, FMLA became
effective on the expiration date of the CBA or February 5, 1994,
whichever was earlier. FMLA entitles eligible employees to take up
to 12 weeks of unpaid, job-protected leave in a 12-month period
for specified family and medical reasons. The employer may elect
to use the calendar year, a fixed 12-month leave or fiscal year,
or a 12-month period prior to or after the commencement of leave
as the 12-month period.
The law
contains provisions on employer coverage; employee eligibility for
the law's benefits; entitlement to leave, maintenance of health
benefits during leave, and 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.
EMPLOYER
COVERAGE
FMLA applies to
all:
·
public agencies,
including state, local and federal employers, local education
agencies (schools), and
·
private-sector
employers who employed 50 or more employees in 20 or more
workweeks in the current or preceding calendar year and who
are engaged in commerce or in any industry or activity affecting
commerce — including joint employers and successors of covered
employers.
EMPLOYEE
ELIGIBILITY
To be eligible
for FMLA benefits, an employee must:
(1) work for a
covered employer;
(2) have worked
for the employer for a total of 12 months;
(3) have worked
at least 1,250 hours over the previous 12 months; and
(4) work at a
location in the United States or in any territory or possession of
the United States where at least 50 employees are employed by the
employer within 75 miles.
LEAVE
ENTITLEMENT
A covered
employer must grant an eligible employee up to a total of 12
workweeks of unpaid leave during any 12-month period for
one or more of the following reasons:
·
for the birth and care
of the newborn child of the employee;
·
for placement with the
employee of a son or daughter for adoption or foster care;
·
to care for an
immediate family member (spouse, child, or parent) with a serious
health condition; or
·
to take medical leave
when the employee is unable to work because of a serious health
condition.
Spouses
employed by the same employer are jointly entitled to a
combined total of 12 work-weeks of family leave for the birth
and care of the newborn child, for placement of a child for
adoption or foster care, and to care for a parent who has a
serious health condition.
Leave for
birth and care, or placement for adoption or foster care must
conclude within 12 months of the birth or placement.
Under some
circumstances, employees may take FMLA leave intermittently —
which means taking leave in blocks of time, or by reducing their
normal weekly or daily work schedule.
·
If FMLA leave is for
birth and care or placement for adoption or foster care, use of
intermittent leave is subject to the employer's approval.
·
FMLA leave may be
taken intermittently whenever medically necessary to care
for a seriously ill family member, or because the employee is
seriously ill and unable to work.
Also, subject
to certain conditions, employees or employers may choose to
use accrued paid leave (such as sick or vacation leave) to
cover some or all of the FMLA leave.
The employer
is responsible for designating if an employee's use of paid leave
counts as FMLA leave, based on information from the employee.
"Serious
health condition" means an illness, injury, impairment, or
physical or mental condition that involves either:
·
any period of
incapacity or treatment connected with inpatient care (i.e., an
overnight stay) in a hospital, hospice, or residential
medical-care facility, and any period of incapacity or subsequent
treatment in connection with such inpatient care; or
·
Continuing treatment
by a health care provider which includes any period of incapacity
(i.e., inability to work, attend school or perform other regular
daily activities) due to:
(1) A health
condition (including treatment therefore, or recovery there from)
lasting more than three consecutive days, and any subsequent
treatment or period of incapacity relating to the same condition,
that also includes:
·
treatment two or more
times by or under the supervision of a health care provider; or
·
one treatment by a
health care provider with a continuing regimen of treatment; or
(2) Pregnancy
or prenatal care. A visit to the health care provider is not
necessary for each absence; or
(3) A chronic
serious health condition which continues over an extended period
of time, requires periodic visits to a health care provider, and
may involve occasional episodes of incapacity (e.g., asthma,
diabetes). A visit to a health care provider is not necessary for
each absence; or
(4) A permanent
or long-term condition for which treatment may not be effective
(e.g., Alzheimer's, a severe stroke, terminal cancer). Only
supervision by a health care provider is required, rather than
active treatment; or
(5) Any
absences to receive multiple treatments for restorative surgery or
for a condition which would likely result in a period of
incapacity of more than three days if not treated (e.g.,
chemotherapy or radiation treatments for cancer).
"Health care
provider" means:
·
doctors of medicine or
osteopathy authorized to practice medicine or surgery by the state
in which the doctors practice; or
·
podiatrists, dentists,
clinical psychologists, optometrists and chiropractors (limited to
manual manipulation of the spine to correct a subluxation as
demonstrated by X-ray to exist) authorized to practice, and
performing within the scope of their practice, under state law;
or
·
nurse practitioners,
nurse-midwives and clinical social workers authorized to practice,
and performing within the scope of their practice, as defined
under state law; or
·
Christian Science
practitioners listed with the First Church of Christ, Scientist in
Boston, Massachusetts; or
·
Any health care
provider recognized by the employer or the employer's group health
plan benefits manager.
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 leave.
In some
instances, the employer may recover premiums it paid to maintain
health coverage for an employee who fails to return to work from
FMLA leave.
JOB
RESTORATION
Upon return
from FMLA leave, an employee must be restored to the employee's
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 during
which health coverage was maintained. In order to do so, the
employer must:
·
notify the employee of
his/her status as a "key" employee in response to the employee's
notice of intent to take FMLA leave;
·
notify the employee as
soon as the employer decides it will deny job restoration, and
explain the reasons for this decision;
·
offer the employee a
reasonable opportunity to return to work from FMLA leave after
giving this notice; and
·
make a final
determination as to whether reinstatement will be denied at the
end of the leave period if the employee then requests restoration.
A "key"
employee is a salaried "eligible" employee who is among the
highest paid ten percent of employees within 75 miles of the work
site.
NOTICE AND
CERTIFICATION
Employees
seeking to use FMLA leave are required to provide 30-day advance
notice of the need to take FMLA leave when the need is foreseeable
and such notice is practicable.
Employers may
also require employees to provide:
·
medical certification
supporting the need for leave due to a serious health condition
affecting the employee or an immediate family member;
·
second or third
medical opinions (at the employer's expense) and periodic
recertification; and
·
periodic reports
during FMLA leave regarding the employee's status and intent to
return to work.
When
intermittent leave is needed to care for an immediate family
member or the employee's own illness, and is for planned medical
treatment, the employee must try to schedule treatment so as not
to unduly disrupt the employer's operation.
Covered
employers must post a notice approved by the Secretary of Labor
explaining rights and responsibilities under FMLA. An employer
that willfully violates this posting requirement may be subject to
a fine of up to $100 for each separate offense.
Also, covered
employers must inform employees of their rights and
responsibilities under FMLA, including giving specific written
information on what is required of the employee and what might
happen in certain circumstances, such as if the employee fails to
return to work after FMLA leave.
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 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.
OTHER
PROVISIONS
Special rules
apply to employees of local education agencies. Generally,
these rules provide for FMLA leave to be taken in blocks of time
when intermittent leave is needed or the leave is required near
the end of a school term.
Salaried
executive, administrative, and professional employees of covered
employers who meet the Fair Labor Standards Act (FLSA) criteria
for exemption from minimum wage and overtime under Regulations, 29
CFR Part 541, do not lose their FLSA-exempt status by using any
unpaid FMLA leave. This special exception to the "salary basis"
requirements for FLSA's exemption extends only to "eligible"
employees' use of leave required by FMLA.
The FMLA does
not affect any other federal or state law which prohibits
discrimination, nor supersede any state or local law which
provides greater family or medical leave protection. Nor does it
affect an employer's obligation to provide greater leave rights
under a collective bargaining agreement or employment benefit
plan. The FMLA also encourages employers to provide more generous
leave rights.
FURTHER
INFORMATION
The final rule
implementing FMLA is contained in the January 6, 1995, Federal
Register. For more information, please contact the nearest office
of the Wage and Hour Division, listed in most telephone
directories under U.S. Government, Department of Labor
|
