FAQ Guide to FMLA

FAQ GUIDE TO THE FMLA ACT OF 1993

On February 5, 1993, President Clinton signed into law the federal Family and Medical Leave Act of 1993 (FMLA).  This law became effective on August 5, 1993.  The Department of Labor (DOL) issued final regulations on January 6, 1995 which became effective April 6, 1995.  On February 11, 2008, the DOL issued proposed regulations to update and further clarify the law and original regulations, and seeks public comments by April 11, 2008.  On January 28, 2008, President Bush signed into law the first major revision to the FMLA since its enactment, expanding the FMLA for families of military service members.  The DOL also seeks comments regarding what subjects and issues should be included in any final regulations with respect to the revised law.

Generally, the Family and Medical Leave Act of 1993 provides that covered employers must: a) allow eligible employees to take 12 weeks of unpaid leave during any 12-month period for certain statutory reasons, or up to 26 weeks in a single 12-month period to care for a Servicemember, b) continue the employee’s group health insurance benefits while on leave, c) restore the employee to the same or equivalent job upon return from leave, and d) not take any adverse action against an employee for taking FMLA leave.

Which Employers Must Comply?

This federal law applies to all:

• public agencies, including state and federal employers;
• public and private elementary and secondary schools; and
• private-sector employers with 50 or more employees in 20 or more calendar workweeks in the current or preceding calendar year.

Which Employees Are Eligible for FMLA Leave?

An employee is eligible for FMLA if he or she:

• currently works for a covered employer;
• has worked for this employer for a total of 12 months;
• has worked at least 1,250 hours over the previous 12 months;
• works in the United States, District of Columbia, or any Territory or possession of the United States; and
• works at a location where the employer has 50 employees within a 75-mile radius at the time the employee requests leave.

When Is an Employee Entitled to Leave?

Covered employers must grant eligible employees up to 12 weeks of unpaid leave during any 12-month period for any of the following reasons:

• Birth and care of a newborn child of the employee;
• Placement of a child under the age of 18 for adoption or foster care with the employee; 
• Care for an immediate family member (spouse, child, or parent) with a serious health condition;
• The employee is unable to work because of his or her own serious health condition; or
• Any qualifying exigency arising out of the active duty or impending call/order to active duty of a family member (spouse, son, daughter or parent) in the Armed Forces.

Covered employers must grant eligible employees up to a total of 26 weeks of unpaid leave during a single 12-month period to care for a covered Servicemember who is their spouse, son, daughter, parent or next of kin.

Are There Any Restrictions on How FMLA Leave Can Be Taken?

• Covered spouses of the same employer may be limited to a combined total of 12 weeks of family leave if the leave is taken for the birth or placement of a child, or for the serious health condition of an employee’s parent.  Additionally, covered spouses of the same employer may be limited to a combined total of 26 weeks during a single 12-month period if the leave is taken to care for a covered Servicemember or a combination of leave taken to care for a covered Servicemember and for the birth or placement of a child, or for the serious health condition of an employee’s parent.
• Leave for birth or care, or placement for adoption or foster care must be concluded within 12 months of the birth or placement.
• Employees may take FMLA leave intermittently, in some cases.  When leave is taken after the birth or placement of a child for adoption or foster care, the employer can approve or disapprove intermittent leave.  Leave needed because of a serious health condition or to care for a covered Servicemember may be taken intermittently or on a reduced leave schedule when medically necessary.  If intermittent leave is taken, the employee may be transferred to an alternative position (with equal pay and benefits) which better accommodates the intermittent periods of leave.

What Is a Covered Servicemember?

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 injury or illness.  In the case of a member of the Armed Forces, including a member of the National Guard or Reserves, the term serious injury or illness means an injury or illness incurred by the member in line of duty on active duty in the Armed Forces that may render the member medically unfit to perform the duties of the member’s office, grade, rank or rating.

How Do Sick Pay, Vacation Benefits, and Holidays Affect FMLA?

• Employers and employees may choose to use the employee’s accrued paid leave (sick or vacation, etc.) to cover some or all of the FMLA leave.
• Holidays occurring during FMLA leave do not extend the leave.  However, if the workplace shuts down temporarily for one or two weeks, this period does not count against the 12-week FMLA leave.

Is FMLA Paid?

Generally, no, although an employer or employee can choose to apply accrued sick, vacation or other benefits toward FMLA, the employer is not required to continue to pay the employee.  

What Is a Serious Health Condition?

A serious health condition is 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, and any period of incapacity or subsequent treatment in connection with such inpatient care;
• Continuing treatment by a health care provider that includes any period of incapacity (i.e., inability to work, attend school or perform other regular activities) due to:

1. A health condition (including treatment for, or recovery 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;
2. Pregnancy or prenatal care. A visit to the health care provider is not necessary for each absence;
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 (i.e. asthma, diabetes). A visit to health care provider is not necessary for each absence;
4. A permanent or long-term condition for which treatment may not be effective (i.e. 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 (i.e., chemotherapy or radiation treatments for cancer).

A complete definition of serious health condition can be found within the regulations at 29 CFR part 825.114.  Note that the definition of serious health condition is slightly amended in the proposed regulations, found at proposed 29 CFR 825.113.  For example, in paragraph 1, above, the two visits must occur within 30 days of the period of incapacity.  The proposed rules also define periodic visits in paragraph 3, above, to be at least two visits to a health care provider per year.

May an Employer Request Confirmation of the Existence of a Serious Health Condition?

Yes.  An employer may require an employee to provide a Certification of Health Care Provider to determine that an employee is unable to perform the functions of the position or that the employee's family member has a serious health condition or is a covered Servicemember.  The Department of Labor has provided a sample form for this purpose.  The employer may require this form be returned within 15 days.    

If an employer has reason to doubt the validity of the Certification of Health Care Provider, it may require the employee to obtain a second (or third) opinion at the employer's expense.  The employee is entitled to continue leave while the employer seeks this information. In addition, the employee may request a copy of the second or third medical opinion.  If the additional certifications do not establish the employee's entitlement to leave, the leave may be retroactively designated non-FMLA leave.

An employer may not directly contact the employee's health care provider to seek clarification or authentication of the medical certification.  However, a health care provider representing the employer may contact the employee's health care provider, with the employee's permission, for purposes of clarification or authentication.  If the FMLA leave and workers' compensation leave run concurrently, the employer may contact the employee's workers' compensation health care provider if the state worker's compensation law allows employers to contact the employee's workers' compensation health care provider.

The proposed regulations make some changes to the medical certification process both in content and timing (e.g., allow direct contact between the employer and health care provider to clarify certification, and employer can request recertification of an ongoing condition at least every six months if there is an absence).

May an Employer Request Confirmation of a Call to Active Duty?

Yes.  An employer may require that an employee’s request for leave be supported by a certification when a family member is on active duty or has been notified of an impending call or order to active duty in the Armed Forces in support of a contingency operation.  

Is the Employee Entitled to Benefits While Taking FMLA Leave?

Yes.  While an employee is on FMLA leave, the employer must maintain the employee's coverage under any group health plan on the same terms as if the employee continued to work.  An employee, while on leave, is required to pay the employer his or her portion of the group health benefit premiums.

In the absence of an established employer policy providing a longer grace period, an employer's obligation to maintain health insurance coverage ceases under FMLA if an employee's premium is more than 30 days late.  The employer must provide written notice to the employee at least 15 days before coverage will terminate.  The employer should inform the employee that coverage will expire 15 days after the date of the letter unless payment is received.  Employers may terminate an employee's health benefits retroactively if: 1) the employer has policies offering other forms of unpaid leave and those policies permit the employer to terminate coverage retroactively to the first date of the period to which the unpaid premium applies, and 2) the employee was provided with a 15-day notice.

If benefits are cancelled as a result of the employee's failure to pay premiums, the employer must restore the employee to benefits equivalent to those the employee would have had if leave had not been taken, including family or dependent coverage upon his or her return to work.  The employee may not be required to serve a new pre-existing condition waiting period, wait for open enrollment, or pass a medical examination to obtain reinstatement of coverage.

How Much Notice Does an Employee Have to Provide to His or Her Employer?

If leave is foreseeable, the employee must provide the employer with at least 30 days advance notice whenever practicable.  If a 30-day notice is not possible, notice must be given as soon as practicable.  As soon as practicable ordinarily means an employee would provide verbal notice to his or her employer within one or two business days of when the need for leave becomes known to the employee.  The employee need not expressly assert rights under the FMLA or even mention the FMLA, but may only state that leave is needed for an expected birth or adoption, for example.

Employees may be required to provide the employer with two business days advance notice of any change in circumstances that requires an extension of leave or an early return to work.

When the leave is due to the active duty of a family member in the Armed Forces and the leave is foreseeable, the employee must provide notice to the employer as is reasonable and practicable.

The proposed regulations provide that in most cases an employee needing FMLA leave must follow the employer’s usual and customary call-in procedures for reporting an absence minus unusual circumstances.

When Must an Employer Designate Leave as FMLA Leave?

Employers must notify an employee that their leave qualifies under FMLA within two business days of receipt of qualifying information.  The employer must confirm the FMLA designation in writing by the following payday. 

Generally, employers cannot designate other leave as FMLA leave once an employee returns to work unless:  

• The employer does not learn of the reason for the absence until the employee returns to work.  In this case, the employer may designate the leave retroactively as FMLA leave provided designation and notification to the employee occurs within two business days of the employee’s return to work.
• The employer makes a preliminary designation (and notification to the employee) pending receipt of medical certification or other information qualifying the leave as FMLA leave.

The proposed regulations extend the time for employers to notify employees of FMLA leave qualification from two business days to five business days.  The proposed regulations also specify that if an employer deems a medical certification to be incomplete or insufficient, the employer must return it to the employee, specify in writing what information is lacking, and then give the employee seven calendar days to cure the deficiency.

What is the Relationship between COBRA and FMLA?

A COBRA qualifying event does not occur until the last day of FMLA leave provided the employee on leave does not return to work.

Additionally, cancellation of group health coverage for nonpayment of premiums during an FMLA leave regardless of whether the employee returns to work is not a qualifying event under COBRA.  If group health coverage is maintained by the employer during FMLA leave despite nonpayment of premiums, the employer may seek recovery for the premiums paid even if the employee later states that coverage was not desired.  Employers cannot condition COBRA continuation coverage upon repayment of group health premiums if employees default on premium payments while on FMLA leave.

What is the Relationship between the FMLA and the Americans with Disabilities Act?

Employers must comply with both the FMLA and the ADA.  Employee rights under the Americans with Disabilities Act (ADA) are cumulative with the employee’s rights under the FMLA.  For example, an employee whose health condition qualifies as a disability under the ADA may also be entitled to leave benefits and protection under the FMLA.

What is the Relationship between FMLA and Workers’ Compensation Programs?

Employee rights under the FMLA and workers’ compensation plans are cumulative.  Therefore, an employee with an on-the-job injury that also qualifies as a serious health condition may receive benefits under the FMLA and state workers’ compensation laws.

However, employees cannot receive workers’ compensation benefits and paid FMLA leave concurrently.  For example, if an employee receives workers’ compensation benefits, neither the employee nor employer can require substitution of paid leave for unpaid leave.  An employer or employee may, however, substitute paid leave for unpaid leave when workers’ compensation benefits cease.

What is the Relationship between State FMLA Laws and the Federal FMLA?

The federal FMLA does not supersede any state or local law that provides greater family or medical leave rights.  Not all employers will be "covered employers" under both state and federal law.  A thorough review of both laws should be made.  Where both laws apply, the employee is entitled to the greater of the two benefits.

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