Family and Medical Leave Act (FMLA) FAQs

By Neil E. Klingshirn

Contents


Overview of FMLA

President Clinton signed the Family and Medical Leave Act in 1993. The FMLA provides longer service employees of larger employers the right to take up to 12 weeks from work without losing their job. The FMLA is available to employees who need to care for their own or a family member's serious health condition. Beginning in 2008, a spouse, son, daughter, or parent of an employee who is a member of the military service can take up to 26 weeks of military caregiver or exigency leave.  The FMLA does not create a right to compensation. Therefore, FMLA leave is unpaid, unless the employee uses available vacation or sick time.

My Employment Lawyer provides  answers to frequently asked questions about the Family and Medical Leave Act to help you evaluate your options if you need time to take off from work.  These answers are not a substitute for legal advise.  To protect your rights fully, you must consult legal counsel in your state about the Family and Medical Leave Act.

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Am I eligible for family leave?

Family and Medical Leave is only available to:

  • Employees of an employer with 50 or more employees;
  • Who were employed at least 12 months and who worked in excess of 1,250 hours in the previous 12 month period.

You can take Family and Medical Leave for:

  • The birth of your child, whether you are the mother or father;
  • The placement of a child with you for adoption or foster care;
  • To care for a spouse, child, or parent who has a serious health condition;
  • To care for your own serious health condition, if it makes you unable to perform the functions of your job; and
  • To provide caregiver or exigency help for a spouse, son, daughter, or parent who is a member of the military service.

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Is Family and Medical Leave Paid?

No. The FMLA did not create a right to compensation or a other money benefit.  However, If you have vacation or sick time available that your employer allows you to use for non-family or medical reasons, then you can, at your option, use the vacation or sick time during an FMLA leave. Your employer can also require you to use available vacation or sick time.

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Will I lose my Health Insurance while I am on Family or Medical Leave?

No.  If your employer has a health insurance plan, it must continue your coverage under its health insurance plan as long as you pay your share of the premium.  If you are more than 30 days late with your premium payment, however, your employer can cut off your health insurance, even if you are still on leave.

If you lose insurance coverage during your leave because you were unable to pay your share of the health insurance premium, you can regain that coverage when you return to work.  Be aware, however, that if you do not return to work at the end of your family or medical leave, your employer can recover the cost of the health insurance premiums that it paid on your behalf during your leave.

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When I return from Family or Medical Leave, will I have the Same Job?

Yes and no. As a general rule,  your employer must restore you to the position you  held when the leave began, or to an equivalent position, with equivalent employment benefits, pay, and other terms and conditions of employment.  However, when you return, you have no greater right to reinstatement or to other benefits than if you had been continuously employed during the leave. For example, if you would have been laid off during your leave, you will not have the right to restoration at the end of the leave.

"Key employees" do not have the right to return to their old jobs if  "substantial and grievous injury" would result to employer if they did so.  A Key employee must be a "salaried" employee and among the highest paid 10% of the company's employees.  If the employer provides proper notice to the Key employee before he or she takes leave, the employer does not have the obligation to return the Key employee to work.


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What notice must I give my employer before taking FMLA leave?

If you can foresee the need to take family or medical leave 30 or more days ahead of time, you must give at least 30 days notice before beginning the leave.  If 30 days' notice is not possible, you must give notice as soon as "practicable." As soon as practicable depends on the facts and circumstances of each case. However, it will usually mean by the end of the next business day. 

An employee must provide at least verbal notice sufficient to make the employer aware that the employee needs FMLA-qualifying leave, and the anticipated timing and duration of the leave. However, if the employer already granted FMLA leave for an employee's serious health condition, that employee must specifically reference either the serious health condition or the need for FMLA leave or risk losing the right to return to work.  Simply calling in “sick” may not be enough.

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What notice must my employer give me about my FMLA rights?

Your employer must give you four different types of notices about your rights and obligations under the Family and Medical Leave Act. They are:
  1. “General notice,” which means the employer must

    1. display a poster listing the employees’ FMLA rights, and
    2. give the employee "upon hiring" a handbook or other orientation material containing a section on FMLA rights.

  2. “Eligibility notice” when an employee requests leave, or when the employer identifies a potential FMLA-qualifying leave.  The employer must notify the employee of his or her FMLA eligibility status within 5 business days. If the employee is not eligible for FMLA leave, the notice must state at least one reason why the employee is not eligible. Eligibility notice may be provided orally or in writing.

  3. “Designation notice,” in writing within five days after obtaining sufficient information to know whether a given absence is FMLA-qualifying or not. If leave is granted, the designation notice must:

    1. include any “fitness-for-duty” certification required by the employer and
    2. specifically inform the employee of the amount of leave – “hours, days or weeks” – that will be deducted as a result of the leave.

  4. “Rights and responsibilities notice” to employees who take leave, in writing, detailing the employer’s expectations and any consequences of the employee’s failure to meet these expectations under the FMLA. This notice must be provided with the eligibility notice and must include:

    1. an explanation that if FMLA leave is granted it will be deducted from the employee’s 12-week allowance,
    2. requirements for employees to submit medical certifications and the consequences for failing to do so,
    3. employer requirements for using or substituting other paid leave for FLMA leave
    4. employee obligations for maintaining health benefits during FMLA leave, such as paying premiums,
    5. key employee status, if applicable,
    6. employee rights, including health insurance benefits and job restoration and
    7. the employee’s potential liability for unpaid health insurance premiums if the employee fails to return to work following leave.

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What is Intermittent Leave and when Can I Take It?

Intermittent leave is time off from work on an occasional basis, as opposed to entire days at a time.  Your doctor must certify that you need to take occasional or intermittent time off in order to qualify for it.

You can qualify for intermittent leave where your or your family member's condition is intermittent and where your are needed only intermittently. This could be the case, for example, where other care is normally available or where responsibilities are shared with other family members or third parties, but you have to be available in emergencies.

Intermittent or reduced schedule leave may be taken for:

  • planned medical treatment that is medically necessary;
  • unanticipated medical treatment that is medically necessary;
  • recovery from treatment;
  • recovery from a serious health condition; or
  • providing care or psychological comfort to an immediate family member with a serious health condition.

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What is a Serious Health Condition under the FMLA?

A 'serious health condition' is an illness, injury, impairment, or physical or mental condition that involves inpatient care in a hospital, hospice, or residential medical care facility, or continuing treatment by a health care provider.  Your own serious health condition must be such that you cannot perform the functions of your position.

A serious health condition includes conditions or illnesses that cause you or a family member to be absent from work on a recurring basis for more than a few days for treatment or recovery.


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Do I need to get anything from my Doctor to take Family or Medical Leave?

If an employer provides proper notices, you must obtain a complete, signed Certificate of Health Care Provider.  The 2008 Department of Labor regulations include medical certification forms for the serious health conditions of employees and those of family members.

Certification may be required at start of leave, during leave or upon your return from leave.  An employer must allow at least 15 days for you to obtain a certification after asking for it.


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    What does the doctor's certification have to say?

    An employer may ask for a certification that states:

    • the date on which the serious health condition began;
    • its probable duration;
    • the appropriate medical facts within the knowledge of the health care provider regarding the condition; and
    • that the employee is needed to care for a son, daughter, parent, or spouse, with an estimate of the amount of time that the care will require.

    In the case of intermittent leave or leave on a reduced schedule, your employer can also require your doctor to state:

    • in the case of leave for planned medical treatment, the dates on which the treatment is expected to be given and the treatment's duration;
    • in the case of leave for an employee's own serious health condition, a statement of the medical necessity for an intermittent or reduced schedule leave; and
    • in the case of leave for family members, a statement that this type of leave is necessary for the care of the family member, or will assist in their recovery, and the expected duration and schedule of the intermittent or reduced schedule leave.

    In most cases, the employer should request a certification when the employee gives notice of a need for the leave or within two business days of that notice. In the case of an unforeseen leave, the request should be made within two business days of the start of the leave. An employer may request certification at a later date if it later has some reason to question the leave's appropriateness or duration.

    The requirement to provide a certification must be in writing and also must state the consequences of failing to submit the certification. Thus, where an employer had not yet amended its employee handbook to include FMLA requirements, an employee was improperly terminated for failure to provide the certification where the request was made orally only and she was not informed that she would be terminated for failure to supply the certification.

    If the employer finds a certification incomplete, it must so advise the employee and allow him a reasonable opportunity to fix any deficiency. The 'timely manner' requirement means that certification must be provided, when possible, in advance or at the start of the leave. If the need for the leave does not permit this timing, certification should be provided reasonably soon after the leave begins.

    Employers may contact your physician directly if an your serious health condition may also be a disability within the meaning of the Americans with Disabilities Act (ADA), so long as the ADA regulations are observed. An employer may also contact your s physician to seek “clarification and authentication” of medical certifications. Employers may initiate such contacts only through a health care provider, a human resources professional, a leave administrator, or a management official, however, and, under no circumstances,  may the employee’s direct supervisor contact your health care provider.


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    Can my employer get a second or third opinion?

    If your employer questions the certification, it can send you to its doctor for an opinion. If the employer's doctor disagrees with your doctor, the employer can arrange for a third opinion, at its cost, from a doctor selected by both of you.

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    Do I have to update my certification?

    Yes. However, an employer must generally wait 30 days before asking for a recertification.
    If the first certification says that the condition will last for a period of time exceeding 30 days, then the employer must wait the longer time.  On the other hand, an employer can ask for recertification in less than 30 days if:

    • you ask for an extension of a leave;
    • Circumstances described by the previous certification have changed significantly; or
    • The employer reasonably doubts that the employee's stated reason for the absence remains true.

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    Do I have to take a fitness for duty exam when I return to work from Family or Medical Leave?

    Yes.  Your employer may require you to obtain a certification from your health care provider stating that you are fit to resume work following an FMLA leave. Your employer may also provide you with a list of your essential job duties when it advises you in the "designation notice," described above, of the necessity for a fitness-for-duty certification. If your employer provides such a list of essential functions, it may require your health care provider to certify that the employee can perform them.  When completing a fitness-for-duty certification, the health care provider must assess the employee’s ability to return to work against the identified essential functions.

    The only fitness for duty exam that you must pass is one by your own doctor.  Your employer must accept your fitness for duty certification and cannot require a second or third opinion.

    An employer cannot require a new fitness-for-duty certification following each intermittent leave.  However, an employer can require  a certification of fitness to return to duty for intermittent absences, up to once every 30 days, if “reasonable safety concerns” exist regarding the employee’s ability to perform his or her duties

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    What are my rights and remedies if my employer violates the FMLA?

    You can file a complaint with the  Department of Labor, which will investigate and, if appropriate, pursue your FMLA claim for you.

    You can also go to court on your own and file a civil lawsuit.  If you win, you can recover:

    • lost pay and benefits plus interest, or the cost of providing care to a seriously ill family member, plus interest.  These are your "economic damages";
    • a penalty equal to twice the amount of your economic damages, unless your employer proves that it had a good faith and reasonable basis for denying you your rights under the FMLA;
    • reinstatement; and
    • attorneys fees, expert witness fees and court costs.

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    Where can I find more information about my family and medical leave rights?

    Mel has collected Questions and Answers, Wiki articles and Blog articles about family and medical leave rights.  If you still cannot find the answer to your question, Ask mel and we will send your question to attorneys in your state.

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    I want to consult an employment attorney to protect my rights to family leave. Do you have any suggestions?

    You can schedule a consultation with Neil Klingshirn if you are in Northeast, Central or Southeast Ohio (that is, near Akron, Canton, Cambridge, Cleveland, Columbus, Lorain, Marietta, Youngstown or Wooster Ohio).

    If you live live elsewhere, we suggest that you:

    • search for a lawyer on My Employment Lawyer;
    • search the National Employment Lawyer's Association's (NELA) attorney directory;and
    • search the attorney directory of a state affiliate NELA, such as the California Employment Lawyer's Association. To find an affiliate in your state, search for "[State] Employment Lawyer's Association"; or
    • consult the general "Bar Association" in your area, which is a trade association of local attorneys.  It will probably have an attorney referral service. Ask for attorneys who practice employment law.

    Most attorney directories and referral services provide only the attorney's name and contact information. Therefore, you may need to do some more research. As a general rule, the best employment attorneys:

    • Write and speak on employment law topics;
    • Are recognized by their peers (for example, are listed in Super Lawyers or have "AV" ratings); and
    • Are Board Certified in employment law in those states that offer specialty certification.

    On mel, you can see who has contributed articles and answers to mel, as well as the quality of that work.

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