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 regulations1,
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 Purposes
of the FMLA Notice Questions
and Answers
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.
Employer Coverage Employee
Eligibility Leave Entitlement
Intermittent/Reduced Schedule Leave Substitution
of Paid Leave Serious Health Condition
Medical Certification Health Care
Provider Maintenance of Health Benefits
Other Benefits Job Restoration Key
Employee Exception
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.
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.
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.
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.
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.
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" 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 therefrom) 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.).
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 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.
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, 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.
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.
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.
Employee Notice 29CFR825.302 Employer
Notices 29CFR825.300
Unlawful Acts Enforcement Other
Provisions
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.
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.
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.
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.
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.
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 here on the internet.
