Employment: Family Medical Leave Act (FMLA) (FAQs)

FAQ

What is the Family Medical Leave Act (FMLA)?

The Family Medical Leave Act (FMLA) is a federal law that balances the demands of the work place with the needs of families.

What are the main protections of FMLA?
 

The FMLA allows an employee to take up to 12 weeks of unpaid vacation for his own serious health condition or serious health condition of his child, parent, spouse, or parent.
 

What employers are covered by FMLA?

FMLA applies to Employers with 50 or more employees. Public agencies including state and local governments are covered regardless of the number of employees they have.

Who is eligible for protection under FMLA?

An employee who at the time of requesting leave has worked for a covered employer has worked for at least 12 months; and has worked for at least 1,250 hrs. (about 25 hrs per week).
 

What type of leave is covered by FMLA?
 

•The reason for leave must be one of the following:
•Birth or care for newborn child
•Placement of a child with the employee for adoption or foster care
•Employees own serious health condition
•Care for employee’s spouse, child, parent who has a serious health condition

What is a serious health condition?

A serious health condition is an illness, injury, physical or mental condition that involves either an overnight care in a hospital, hospice or residential medical care facility, or continuing treatment by a health care provider.

There are some conditions that are not considered serious health conditions such as colds, flu, earaches upset stomach and dental problems. While stress alone would not be a serious heath condition, mental illness resulting from it could.
 

What is continuous treatment by a health care provider?

Continuous treatment by a health care provider means any of the following:

•Inability to work, go to school or perform regular daily activities for three or more days or treatment for the same condition.

•Incapacity because of pregnancy or prenatal care.

•Incapacity because of chronic serious health conditions. For example, asthma, diabetes epilepsy.

•Long term incapacity related to treatment or absence for multiple treatments. For example, cancer, kidney disease or severe arthritis.

•Absence because of pregnancy or chronic health condition qualify under FMLA even though there is no treatment from a health care provider or the absence does not last three days
 

When requesting FMLA leave should the employee have a medical report?
 

Yes, an employee contemplating applying for FMLA leave should go to a licensed physician or health care provider and ask for a report showing the need for leave.

What are health care providers?

Health Care Providers are professionals who can render treatment qualifying an employee for FMLA leave. For example, doctors, osteopaths, dentists nurse practitioners, clinical social workers and chiropractors (for limited purposes)
 

Can the employer terminate an employee benefits while on FMLA leave?
 

No, FMLA requires that an employer continue an employee’s employment benefits while the employee is on FMLA leave as if the employee were not on leave
 

Can the employer require an employee to take vacation accumulated or other leave provided concurrent with FMLA leave?
 

Yes an employer can either substitute paid leave or designate paid leave as FMLA. In accord with company policy an employer may require for an employee to exhaust paid leave before taking FMLA leave. At the same time the worker makes the initial decision about which type of leave he prefers. It is important to use FMLA options strategically. You may need to consult with a lawyer when deciding the type of leave needed.

For example an employee with a workers compensation claim who needs his health coverage may wish to have his FMLA run at the same time that he is on leave under a workers compensation claim. That same employee may wish to save his FMLA leave for later if he anticipates the need for leave because of birth of a child. It is sometimes important to use FMLA options strategically.

Once an employee learns of the need for leave does the employee, how does the employee requests FMLA leave?
 

If the employee knows of the need for leave in advance it must give the employer 30 days notice of the intent to take leave. If the need of leave is not anticipated because it is an emergency the employer must give notice as soon as practicable.
 

Does the employee have to give the employer specific notice requesting FMLA leave? 

No, the employer must only give the employer some idea of the purpose of the leave. For example that he/she is suffering from a specific serious illness and requires time off.

Can the employer require medical information to support the need for leave?
 

Yes, the employer may request medical certification to support the need for leave.

Can an employer take less time of leave if all the employee needs is a few hrs every day?

Yes this is called intermittent or reduced –scheduled leave because of medical condition. For example an employee may need a specific treatment every other day for a period of two hrs. This employee may request two hrs of leave every other working day.

Are employee benefits maintained during FMLA leave?

Yes, an employer is required to maintain group health care benefits during the time the employer is on FMLA leave. Thus, if the employer pays for health insurance premiums as part of a group plan it must continue while he employee is on FMLA leave.

If there are changes to the health plan while an employee is on FMLA leave, the employee on leave must be treated the same as any other employee not on FMLA leave.
 

What happens if an employee on unpaid FMLA leave cannot pay for health care premiums?
 

An employee may choose to not maintain health coverage during FMLA leave because he cannot afford the copayments he made while working. Upon returning to work at the end of the leave the employee must be reinstated to full heath benefits coverage as if the coverage never lapsed, even if he had a preexisting condition.

An employee on unpaid FMLA leave may work out a payment schedule for health premiums. There are several arrangements that employers can use to avoid termination of benefits.
 

Are there any instances in which the employer may not maintain benefits during an employee’s FMLA leave?
 

Yes, (1) if an employee required to make a contribution or portion of the premiums fails to make payments; (2) if the employee’s position is eliminated for a legitimate reason (such as reduction of work force); (3) the employee decides not to return to work for reason not connected to the FMLA leave or because the period of leave has expired and the serious health condition is still present.

An employer who fails to return to work for reasons other than continuation of the health condition may e required to reimburse the employer for any benefits paid during the period of leave.

Upon return to work from leave what is the employee entitled to receive?
 

The employee returning from FMLA leave is entitled to be reinstated to the job that they held when they went on leave. or in a similar position with equivalent benefits, pay and other conditions.

Equivalent position means same pay including any across-the –board raises awarded during leave, same skills, responsibilities and authority. An equivalent position means same geographical location and same shift or work schedule.

If under normal course of business the employee would have been laid off had she been at work the employer is under no obligation to reinstate the employee once the FMLA leave is over.

How are the rights of an employee under the FMLA enforced?

An employee can file a private law suit or elect to file a complaint with the Department of Labor. The employer may choose to file a charge locally with the local office of Wage and Hour Division of the Department of Labor or the national headquarters of the wage and Hour Division in Washington DC.

The complaint must be filed within a reasonable time of the discovery of the violation but at least within two years of the alleged violation (three years if the violation is willful).
The complaint must be filed within a reasonable time of the discovery of the violation but at least within two years of the alleged violation (three years if the violation is willful).