The Family and Medical Leave Act (FMLA) was established in 1993 to allow employees to take reasonable unpaid leave for certain family and medical reasons. The legislation intends to “balance the demands of the workplace with the needs of the families, to promote the stability and economic security of families, and to promote national interests in preserving family integrity.”
In other words, it helps employees uphold the demands of work and family in specific situations – without the risk of losing their jobs or benefits.
The FMLA was amended on January 28, 2008 — its first expansion since 1993 — to provide leave to employees with family members serving or injured on military duty. On October 28, 2009, the FMLA was amended again to expand the two types of military family leave that first became available under the FMLA in January 2008. In February 2013, the DOL published final regulations addressing the amendments made in 2009.
First things first: FMLA eligibility
The FMLA applies to you if you have 50 or more employees on the payroll (including part-timers and employees on leave) in 20 or more workweeks (not necessarily consecutive) in the current or preceding calendar year. The FMLA also applies to public agencies, including state, local and federal employers, and local education agencies – regardless of the number of employees.
Assuming you’re a covered employer, your employees are eligible for FMLA if they have worked for at least 12 months and a minimum of 1,250 hours. Additionally, they must work at a location where at least 50 of your employees are employed within 75 miles.
You must grant an eligible employee up to a total of 12 work weeks of unpaid leave during any 12-month span for any of the following reasons:
- The birth and care of the employee’s newborn child
- The placement of a child with the employee for adoption or foster care
- The care of an immediate family member (defined by the FMLA as “child, parent or spouse,” although state and local laws may have broader definitions) with a serious health condition
- The employee’s own serious health condition
A serious health condition, under FMLA, is defined as an illness, injury, impairment, or physical or mental condition that involves either an overnight stay in a medical care facility, or ongoing treatment by a healthcare provider. This serious condition either prevents the employee from performing his or her job tasks, or the affected family members from attending school or doing other routine activities.
What's not covered
The FMLA generally does not apply to routine examinations or checkups (such as physicals, eye exams and dental exams), the common cold, flu, earaches, upset stomachs, headaches other than migraines, or routine dental/orthodontia problems. Treatment for substance abuse may qualify, but only if the treatment is provided by a healthcare professional and other conditions are met.
FMLA and military-related leave
Employees with a child, spouse, or parent on covered active duty status, or called to covered active duty status, in the Armed Forces, including the National Guard and Reserves, may also be entitled to a 12-week leave for qualifying exigencies.
Qualifying exigencies include attending specific military events, arranging for alternative childcare, taking care of financial and legal arrangements, going to counseling sessions, and attending post-deployment reintegration briefings.
In addition, special FMLA leave entitlement allows eligible employees to take a maximum of 26 weeks of leave to care for a family member who is a covered service member during a single 12-month period. A covered service member is someone who is either:
- A member of the Armed Forces who is experiencing and going through medical treatment, recuperation, therapy, in outpatient status, or on the temporary retired list for a serious injury and illness
- A veteran who was a member of the Armed Forces at any time during the five years before the date of treatment and is going through medical treatment, recuperation, or therapy for a serious injury or illness
Keep in mind you must maintain an employee’s pre-existing group health insurance coverage during FMLA leave. When employees return from FMLA leave, they typically must be reinstated to their original positions with equivalent pay, benefits and other employment terms. The use of FMLA leave by an employee cannot result in the loss of any employment benefit that accumulated before the employee began his or her FMLA leave. Plus, during FMLA-qualifying absences, employees may not be penalized for violating a company’s attendance policy.
To be eligible for FMLA protection, an employee must meet three requirements:
- 12 months of employment at your company (not necessarily consecutive months)
- 1,250 hours of service at your company during the 12-month period
- Work at a location where 50 or more employees are employed by your company within 75 miles of that worksite
How the FMLA applies to family members
Under the FMLA, your eligible employee may take leave to care for a family member with a serious health condition. Family member is defined as a spouse, parent, son or daughter. To further clarify:
- “Spouse” includes the employee’s legally recognized spouse under state law in the state where the employee resides (including common-law marriage in states where it is recognized).
- “Parent” includes the employee’s biological, adoptive, step or foster father or mother, or any other individual who stands or stood in loco parentis to the employee as a minor. Persons who are in loco parentis include those with day-to-day responsibilities to care for and financially support a child. A biological or legal relationship is not necessary. “Parents-in-law” are not included.
- “Son or daughter” includes the employee’s biological child, adopted child, foster child, stepchild, legal ward, or a child of a person standing in loco parentis. The child must be under age 18, or age 18 or older and “incapable of self-care” (according to strict FMLA guidelines) because of a mental or physical disability.
State laws providing family or medical leave often define “family members” more broadly, covering parents-in-law, domestic partners, etc.
What is a Serious Health Condition?
The FMLA defines “serious health condition” as an illness, injury, impairment or physical/mental condition that:
- Involves inpatient care (due to patient’s incapacity or need for treatment), such as an overnight stay in a hospital, hospice or residential medical care facility
- Requires “continuing treatment by a healthcare provider.”
“Continuing treatment by a healthcare provider” generally includes:
- Any period of incapacity lasting more than three consecutive days, and any subsequent treatment or incapacity that involves a regimen of continuing treatment (not including bed rest, drinking fluids, exercise and over-the-counter medications);
- Any period of incapacity due to pregnancy or prenatal care;
- Any period of incapacity that is permanent or long-term (for conditions such as Alzheimer’s or a stroke)
- Any period of incapacity for treatment of a chronic condition such as asthma, diabetes, epilepsy, etc.
- Any absence or period of incapacity resulting from multiple treatments such as chemotherapy, radiation, dialysis or physical therapy
Conditions generally not considered “serious health conditions” include the following:
- Unless complications arise, the common cold, the flu, earaches, upset stomach, minor ulcers, headaches other than migraine, routine dental or orthodontia problems, periodontal disease, etc.
- Routine physical, eye or dental examinations
- Conditions requiring only over-the-counter medications (such as aspirin, antihistamines or salves), bed rest, drinking fluids, exercise, and other similar activities that can be initiated without a visit to a healthcare provider
- Cosmetic treatments unless inpatient hospital care is required or unless complications develop
It’s not up to a manager or supervisor to decide if a medical condition qualifies as a “serious health condition” under the FMLA. Rather, an HR professional should make this determination based on medical information provided by the employee, the employee’s healthcare provider and applicable legal guidelines.
The FMLA definitions of “serious injury or illness” for current service members and veterans are distinct from the FMLA definitions of “serious health condition.”
How to Administer FMLA Leave
Employees seeking FMLA leave are required to provide 30 days’ notice if the need for leave is foreseeable and notice is possible. If your employee doesn’t give 30 days’ notice for foreseeable leave with no reasonable excuse for the delay, you may delay the FMLA leave period for at least 30 days after the date your employee provides notice. To delay an employee’s FMLA leave due to lack of required notice, it must be clear that your employee was informed of the 30-day notice requirement. Posting the required notice at your employee’s worksite satisfies this condition.
If your employee informs you of a potential FMLA-qualifying event, you should:
- Notify the appropriate personnel in your company (usually the HR manager or benefits administrator) of your employee’s situation. That way, if absences are FMLA-qualifying, your company can send the appropriate notices and forms, handle the medical certification process and start tracking the time off.
- If the absence does not qualify for FMLA (and does not fall under any other legal protection), treat the absence according to your company’s leave and attendance policies. If the absence is not protected by law, and is not permitted or excused by company policy, your employee should be disciplined in the same manner as other employees violating the leave or attendance policy.
Because supervisors and managers can be held individually liable for violating the FMLA, be sure everyone understands FMLA basics and is proactive in reporting potential FMLA-qualifying situations to the company’s HR manager and/or benefits administrator.
What Are Your Notice Requirements?
It’s important to realize that you, as an employer, also have notice obligations. You must inform employees of their rights and responsibilities under the FMLA, including information about what is required to qualify for and maintain leave, what can be expected during leave, and what could happen if your employee does not return to work after taking leave. You must post a notice approved by the U.S. Department of Labor in the workplace explaining all of this. The notice must be posted where applicants and employees can see it, and covered employers must post the notice even if no employees are eligible for FMLA leave. You’re also required to give this notice to employees, either by including it in an employee handbook or by distributing the information to employees at hiring.
In addition, you must provide to employees an Eligibility Notice and a Rights and Responsibilities Notice. The Eligibility Notice should be given to an employee within five business days after the employee notifies you that she or he needs leave, or after you’ve discovered that an employee’s leave might be for an FMLA-qualifying reason. The FMLA requires that you notify your employee of whether he or she is eligible for FMLA leave and whether such leave is available within the applicable 12-month period. If the employee is not eligible for FMLA leave, you must include at least one reason why on the Eligibility Notice.
Reasons why an employee may not be eligible for FMLA leave include:
- The employee has not been employed at your company for at least 12 months before requesting leave
- The employee has not worked at least 1,250 hours with your company during the previous 12-month period
- The employee is not employed at a worksite where 50 or more employees are employed by the company within 75 miles of that worksite
The law also requires that you provide a Rights and Responsibilities Notice detailing the specific expectations and obligations of employees on FMLA leave, including:
- A statement that leave will be subtracted from the employee’s available FMLA leave and the applicable 12-month period for FMLA leave
- Whether paid benefits will be used to supplement unpaid FMLA leave, depending on your company’s policy, and that leave is still subtracted from available FMLA leave
- Employee requirements for providing FMLA certifications (for serious health conditions or family military leave entitlements), periodic certifications and/or fitness-for-duty report
- Job restoration rights after FMLA leave
- Health insurance and maintenance of benefits information, including your employee’s potential liability for any health insurance premiums you pay while the employee is on FMLA leave, which may become his or her responsibility if he or she doesn’t return to work from FMLA leave
- Whether your employee is a key employee and the consequences of that classification
The Rights and Responsibilities Notice must be provided with the Eligibility Notice and must be in writing. It may be distributed by hand or electronically.
If your employee requests FMLA leave for his or her own serious health condition or for a family member’s serious health condition, you have the right to request the following:
- Medical certification of the need for leave due to a serious health condition (of the employee or his/her family member)
- Second or third medical opinions (at the company’s expense)
- Periodic reports during FMLA leave regarding the employee’s status and intent to return to work
These reports may be in the form of a letter from your employee or his or her healthcare provider, or your employee may be required to call in periodically to confirm his or her status and intent to return to work.
You may also request reasonable documentation or statement of family relationship from the employee if you have questions whether an employee’s relationship to a child is covered by the FMLA. This may occur in a loco parentis situation where the employee intends to assume the responsibilities of a parent and must provide either day-to-day care or financial support for the child. No legal or biological relationship is required.
Once the employee returns the completed FMLA certification, you may grant or deny FMLA leave based on the information on the form. If the form is incomplete or otherwise insufficient, you must specify in writing what information is lacking, and give the employee seven calendar days to fix the form before denying leave. If the employee never gives you an FMLA certification that you properly requested, the leave is not protected by the FMLA. It is an employee’s responsibility to ensure that the FMLA certification is completed and returned in a timely manner.
In most cases, you should request that your employee provide certification:
- When your employee gives notice of the need for leave or within five days thereafter
- Within five business days after the leave begins, in cases of unforeseen leave
- At a later date if you have reason to question the appropriateness of the leave or its duration
You must allow your employee at least 15 calendar days to obtain the medical certification. A verbal request to your employee to furnish any subsequent medical certification is sufficient. Finally, if your sick or medical leave plan requirements for medical certification are less strict than those of the FMLA — and you or your employee elect to substitute paid sick, vacation, personal or family leave for unpaid FMLA leave — only the less-stringent certification requirements may apply.
Limitations on Medical Inquiries
Information gathered to determine if an absence qualifies as FMLA leave must relate only to the serious health condition in question. Supervisors shouldn’t ask any detailed questions regarding the employee’s medical condition, prognosis, treatment or medication. Even if your employee volunteers additional information, do not ask anything beyond what the law allows.
However, the new FMLA regulations allow a representative of an employer to contact an employee’s healthcare provider directly about a certification provided by an employee, as long as the contact is limited to seeking “authentication” or “clarification” of information.
Regulations state that “authentication” means providing to the healthcare provider a copy of the certification, and requesting verification that the information contained on the certification form was completed and/or authorized by the healthcare provider who signed the document. No additional medical information may be requested. “Clarification” means contacting the healthcare provider to understand the handwriting on the certification or to understand the meaning of a response.
- Contact a healthcare provider to authenticate or clarify a medical certification. An HR professional, healthcare provider, management executive or leave administrator must make such contact. Under no circumstances may an employee’s direct supervisor contact the employee’s healthcare provider.
- Request recertification for an employee’s serious health condition at a later date if appropriateness or duration of leave is questioned. (You may not request recertification from an employee taking family military leave to care for an injured or ill covered service member/veteran.)
- Consider other federal, state and local laws, as well as company provided benefits, when denying FMLA leave. An employee’s request may be covered by other laws or policies, even if it is not considered an FMLA-qualifying event.
- Ask a healthcare provider for information beyond the certification to avoid invading your employee’s privacy.
- Put medical certifications and other health-related information in employee personnel files. Keep these forms in a separate confidential medical file, stored in locked cabinets with only designated persons having access.
Avoiding Common FMLA Violations
While it’s easy to point fingers at employees in cases of FMLA leave abuse, sometimes the fault lies with the employer. You may struggle to strike a balance between providing FMLA leave, as guaranteed under the law, and protecting your business. Misinterpreting FMLA rules, however, can lead to costly mistakes, if not outright FMLA violations resulting in employee lawsuits.
Here are the most common compliance pitfalls:
- Denying coverage to eligible employees. Employers need to fully understand the various reasons for granting FMLA leave. While the FMLA doesn’t cover minor ailments, it applies to any illness, injury, impairment, or physical or mental condition that requires an overnight stay in a medical care facility, or ongoing treatment by a healthcare provider. An area that often gets employers in trouble is denying leave for complications arising from a minor condition, such as a cold progressing to bronchitis or pneumonia.
- Failing to meet notification requirements. In addition to displaying a mandatory FMLA poster notifying employees of their rights and responsibilities, you must provide a written notice of this information within five business days of an employee requesting FMLA leave. Next, you must allow at least 15 calendar days for an employee to submit a completed certification form. Finally, within five business days of receiving the certification form, you must provide a company response/designation form indicating whether or not the request has been approved. (If a certification form is incomplete or inadequate, you must allow seven calendar days for the employee to correct the situation.)
- Asking employees on leave to perform work. While most employers will address the “missed” work by assigning it to other employees, some make the mistake of asking employees on leave to uphold certain job tasks. The FMLA strictly prohibits you from interfering with employees on leave. Along the same lines, you may not pressure employees to return to work earlier than planned.
- Reinstating an employee to a lesser position. Employees returning from FMLA leave must be reinstated to their original or equivalent position with identical pay, benefits and other employment terms. Similarly, you must continue an employee’s health insurance during FMLA leave, as well as uphold any other benefits accrued prior to or during the leave (such as an automatic cost-of-living increase).
- Counting FMLA leave toward excessive absences. Be careful of “no-fault” attendance policies that count absences for any reason and, once a certain number is met, trigger disciplinary action. FMLA-qualified absences are excused and may not be used against employees in performance evaluations. Further, bonuses and awards for perfect attendance may not be compromised by FMLA leave.
- Terminating an employee unable to return to work. You can’t automatically terminate an employee who is unable to return to work after exhausting FMLA leave. Instead, you must explore whether the employee is entitled to more than 12 weeks of unpaid leave as a “reasonable accommodation” under the Americans with Disabilities Act (ADA). You’ll find that many FMLA-related serious health conditions are also considered disabilities under the ADA – and qualify for additional leave if accommodating the employee would not pose an “undue hardship” for your business.
FMLA Leave Calculation Methods
An eligible employee may take up to 12 weeks of unpaid leave during any 12-month period. There are a few ways to calculate the 12-month period. Unless state law has different requirements, you may select from any of the following options:
- The calendar year
- Any fixed 12-month period, such as a fiscal year or the 12-month period after an employee’s anniversary date
- The 12-month period beginning on the date an employee first starts FMLA leave
- A “rolling” 12-month period measured backward from the date an employee uses any FMLA leave
Using either of the first two methods could result in back-to-back leave or joining of leave periods, enabling an employee to take up to 24 consecutive weeks of leave. For example, if you use a calendar year, an employee may take 12 weeks of FMLA in October, November and December, immediately followed by 12 additional weeks from January to March of the next year. Under the third method, an employee who first takes FMLA leave on October 15 will be entitled to 12 weeks of leave between October 15 (when leave begins) and October 14 of the following year.
The fourth option is the most beneficial calculation method for you as an employer. This method allows you to calculate the leave period by looking back at the past 12 months each time an employee requests FMLA leave, and at that point the employee is entitled only to the remainder of the 12-week allotment.
Be aware that if an employee takes only six weeks of leave for the birth, foster care or adoption of a child, he or she is entitled to take up to six additional weeks during the same 12-month period for another FMLA-qualifying event.
For example, if an employee takes two weeks off on March 1 for surgery and then requests FMLA leave to care for a sick parent in July, you may count back to March 1 as the date the 12-month period began.
It is critical to let your employees know, in writing, which method of calculation will be used. If you wish to change the 12-month calculation method, you must provide 60 days’ notice to employees. If you don’t select a method or notify employees of the selection, you are required to use the method that is most beneficial to the employee.
In addition, you must apply the same calculation method consistently and uniformly to all employees. (The only exception is for a multistate employer adhering to state-specific leave laws at all locations in a specific state and for military caregiver leave.)
Managing Intermittent Leave
Under some circumstances, employees may take FMLA leave intermittently — which means taking leave in short blocks of time, or by reducing their normal weekly or daily work schedules. Intermittent leave is permitted when a serious health condition (of the employee or his/her immediate family member) requires periodic or ongoing treatment by a healthcare provider. For example, intermittent leave may be used for:
- Medical appointments (e.g., prenatal or related to a serious health condition)
- Continual treatments (e.g., chemotherapy, physical therapy or dialysis)
- Periods of severe morning sickness due to pregnancy
A serious health condition also might require an employee to reduce his or her daily or weekly work schedule. This might be the case, for example, after an employee recovers from a condition or procedure that leaves him or her too weak to return to a full work schedule. Intermittent leave may be taken in periods of less than one hour, to a few hours, days or weeks. You may limit leave increments to the shortest period of time used to record time for payroll purposes.
Employees requesting intermittent leave or a reduced work schedule must try to schedule their time off so as not to disrupt your company’s operations, subject to the approval of the employee’s healthcare provider. You also may assign an employee to an alternative position with the same pay and benefits to better accommodate the employee’s intermittent leave or reduced schedule.
Intermittent leave is required for serious health conditions, but not for the birth and care of a newborn or the placement of a child for adoption or in foster care. You have discretion to grant or deny these requests. Approval may depend on the employee’s position, department, specific duties and overall state of business operations. If it is granted, you may require the intermittent leave arrangement to expire 12 months after the date of the birth or placement.
Employees may choose, or you may require, the substitution of accrued paid leave (sick, vacation, personal days, etc.) for any of the situations covered by the FMLA. The substitution of accrued paid leave is limited by your company policies governing the use of such leave.
You are responsible for determining whether an employee’s use of paid leave counts as FMLA leave, based on information from your employee.
In all circumstances, it is your responsibility to designate leave, paid or unpaid, as FMLA-qualifying, and to give notice of the designation to your employee.
The Finer Points of Pregnancy and Parental Leave Under the FMLA
If you’re like most employers, you don’t provide paid maternity or paternity leave to new parents. No federal law requires it.
The situation is different for unpaid leave, however. A pregnant employee or new parent is entitled to take time off from work, including a prolonged leave of absence, under various conditions covered by federal and/or state law. Key among them is the Family and Medical Leave Act (FMLA), which applies to private employers with 50 or more employees, and to public agencies with any number of employees.
If your business is covered by the FMLA, you must grant an eligible employee up to 12 weeks of unpaid leave during a 12-month period for the birth or adoption of a child, or the placement of a foster child.
The circumstances may vary, but these are the major rules that apply:
- Pregnancy leave. An eligible employee can use FMLA leave for complications related to pregnancy or childbirth, which is considered a serious health condition. Since an employee is entitled to up to 12 weeks of FMLA leave in a year, if it’s used for medically necessary pregnancy concerns, it counts toward the total allowance.
- Parental leave. New parents can use FMLA leave following the birth or adoption of a child, or placement of a foster child, any time during the first year the new child arrives.
- Intermittent parental leave. With your permission, an employee can take parental leave intermittently – perhaps working part-time for a bit, or taking time immediately after the birth and weeks later. It’s up to you and the employee to determine a flexible leave arrangement that works for everyone involved.
- Combined parental leave. You can restrict the leave to a combined total of 12 weeks if both parents work for you. You’ll have to make an exception, though, if the pregnant employee takes up to 12 weeks for a serious health condition. In this case, the partner is still entitled to 12 weeks of parental leave.
Don’t overstep your legal bounds with pregnant employees. They must be allowed to work as long as they’re able to fulfill their job duties. Regarding reporting requirements, you can’t burden pregnant employees with more stringent rules than other workers needing leave. For example, if you only require 30 days’ notice for foreseeable leave (as the FMLA allows), you can’t expect pregnant employees to give more notice.
If an employee takes leave for a pregnancy-related complication and recovers, you can’t require her to remain on leave until the baby’s birth. You also can’t specify an amount of time an employee should stay on leave before returning to work after childbirth. However, if you require employees to provide return-to-work statements from a doctor after taking leave for sickness or disability, you may do the same for employees who recently delivered.
One final point: Under the FMLA, you must place the employee returning from parental leave in his or her original position or to an equivalent position with similar pay, benefits and other working conditions.