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July 2006

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Family & Medical Leave Act of 1993- FMLA

Who is Covered
The Family and Medical Leave Act (FMLA) provides a means for employees to balance their work and family responsibilities by taking unpaid leave for certain reasons. The Act is intended to promote the stability and economic security of families as well as the nation's interest in preserving the integrity of families.
The FMLA applies to any employer in the private sector who engages in commerce, or in any industry or activity affecting commerce, and who has 50 or more employees each working day during at least 20 calendar weeks in the current or preceding calendar year.
The law covers all public agencies (state and local governments) and local education agencies (schools, whether public or private). These employers do not need to meet the "50 employee" test. Title II of FMLA covers most federal employees, who are subject to regulations issued by the Office of Personnel Management.
To be eligible for FMLA leave, an individual must (1) be employed by a covered employer and work at a worksite within 75 miles of which that employer employs at least 50 people; (2) have worked at least 12 months (which do not have to be consecutive) for the employer; and (3) have worked at least 1,250 hours during the 12 months immediately before the date FMLA leave begins.
Basic Provisions/Requirements
The FMLA provides an entitlement of up to 12 weeks of job-protected, unpaid leave during any 12-month period for the following reasons:
? Birth and care of the employee's child, or placement for adoption or foster care of a child with the employee;
? Care of an immediate family member (spouse, child, parent) who has a serious health condition; or
? Care of the employee's own serious health condition.
If an employee was receiving group health benefits when leave began, an employer must maintain them at the same level and in the same manner during periods of FMLA leave as if the employee had continued to work. Usually, an employee may elect (or the employer may require) the use of any accrued paid leave (vacation, sick, personal, etc.) for periods of unpaid FMLA leave.
Employees may take FMLA leave in blocks of time less than the full 12 weeks on an intermittent or reduced leave basis when medically necessary. Taking intermittent leave for the placement, adoption, or foster care of a child is subject to the employer's approval. Intermittent leave taken for the birth and care of a child is also subject to the employer's approval except for pregnancy-related leave that would be leave for a serious health condition.
When the need for leave is foreseeable, an employee must give the employer at least 30 days notice, or as much notice as is practicable. When the leave is not foreseeable, the employee must provide such notice as soon as possible.
An employer may require medical certification of a serious health condition from the employee's health care provider. An employer may also require periodic reports during the period of leave of the employee's status and intent to return to work, as well as "fitness for duty" certification upon return to work in appropriate situations.
An employee who returns from FMLA leave is entitled to be restored to the same or an equivalent job (defined as one with equivalent pay, benefits, responsibilities, etc.) The employee is not entitled to accrue benefits during periods of unpaid FMLA leave, but the employer must return him or her to employment with the same benefits at the same levels as existed when leave began.
Employers are required to post a notice for employees outlining the basic provisions of FMLA and are subject to a $100 civil money penalty per offense for willfully failing to post such notice. Employers are prohibited from discriminating against or interfering with employees who take FMLA leave.

Employee Rights

The FMLA provides that eligible employees of covered employers have a right to take up to 12 weeks of job-protected leave in any 12-month period for qualifying events without interference or restraint from their employers. The FMLA also gives employees the right to file a complaint with the Wage and Hour Division, file a private lawsuit under the Act (or cause a complaint or lawsuit to be filed), and testify or cooperate in other ways with an investigation or lawsuit without being fired or discriminated against in any other manner.

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: What records must an employer keep to comply with the FMLA?
No particular order or form of records is required. The records may be maintained and preserved on microfilm or other basic source document of an automated data processing memory provided that adequate projection or viewing equipment is available, that the reproductions are clear and identifiable by date or pay period, and that extensions or transcriptions of the information required herein can be and are made available upon request. Records kept in computer form must be made available for transcription or copying.
? Basic payroll and identifying employee data, including name, address, and occupation; rate or basis of pay and terms of compensation; daily and weekly hours worked per pay period; additions to or deductions from wages; and total compensation paid.
? Dates FMLA leave is taken by FMLA eligible employees (e.g., available from time records, requests for leave, etc., if so designated). Leave must be designated in records as FMLA leave.
? If FMLA leave is taken by eligible employees in increments of less than one full day, the hours of the leave.
? Copies of employee notices of leave furnished to the employer, if in writing, and copies of all general and specific written notices given to employees. Copies may be maintained in employee personnel files.
? Any documents (including written and electronic records) describing employee benefits or employer policies and practices regarding the taking of paid and unpaid leaves.
? Premium payments of employee benefits.
? Records of any dispute between the employer and an eligible employee regarding designation of leave as FMLA leave, including any written statement from the employer or employee of the reasons for the designation and for the disagreement.


Employers must keep the records specified by these regulations for no less than three years and make them available for inspection, copying, and transcription by representatives of the Department of Labor upon request.

Q: What notice does an employee have to give an employer when the need for FMLA leave is foreseeable?

An employee must provide the employer at least 30 days advance notice before FMLA leave is to begin if the need for the leave is foreseeable based on an expected birth, placement for adoption or foster care, or planned medical treatment for a serious health condition of the employee or of a family member. If 30 days notice is not practicable, such as because of a lack of knowledge of approximately when leave will be required to begin, a change in circumstances, or a medical emergency, notice must be given as soon as practicable.
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 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 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 physical 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 rectification 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.

Q: Under what circumstances is leave designated as FMLA leave and counted against the employee's total entitlement?

In all circumstances, it is the employer's responsibility to designate leave taken for an FMLA reason as FMLA leave. The designation must be based upon information furnished by the employee. Leave may not be designated as FMLA leave after the leave has been completed and the employee has returned to work, except if;
? the employer is awaiting receipt of the medical certification to confirm the existence of a serious health condition;
? the employer was unaware that leave was for an FMLA reason, and subsequently acquires information from the employee such as when the employee requests additional or extensions of leave; or,
? the employer was unaware that the leave was for an FMLA reason, and the employee notifies the employer within two days after return to work that the leave was FMLA leave.
Q: Can my employer count FMLA leave I take against a no fault absentee policy?


Q: What are valid reasons for leave?
The following is a list of Valid Reasons for Leave. If the reason for leave falls into one of these areas, and the employee is an eligible employee, the employee is entitled to the benefits of FMLA leave.
? Birth of a son or daughter to the employee and in order to care for such son or daughter. http://www.dol.gov/elaws/esa/fmla/bcc.asp
? Placement of a son or daughter with the employee for adoption or foster care. http://www.dol.gov/elaws/esa/fmla/afc.asp
? Family leave in order to care for a spouse, son, daughter, or parent of the employee if such spouse, son, daughter, or parent has a serious health condition. http://www.dol.gov/elaws/esa/fmla/fl.asp
? Serious health condition that makes the employee unable to perform their job. http://www.dol.gov/elaws/esa/fmla/shc.asp
Q: As an employee what are my responsibilities?

The following is a list of employee responsibilities:
1. Provide notice to your employer of the need for leave.
a) for leave that is foreseeable -- 30 days notice.
b) for leave that is unforeseeable -- as soon as practicable.
c) comply with the employer’s rules for requesting leave.
2. Advise your employer if leave is to be taken intermittently or on a reduced leave schedule basis.
3. Provide medical certification for leave taken as a result of a serious health condition if required by your employer.
4. Comply with arrangements to make group health benefit co-payments.
5. Periodically advise your employer of your intent to return to work at the conclusion of leave, if required by your employer.
6. Notify your employer of any change in the circumstances for which leave is being taken.
7. Provide your employer with a fitness for duty certification if required by your employer, when leave was taken for your own serious health condition.
Q: As an eligible employee what are my rights and benefits?
? 12 weeks of unpaid FMLA leave in a 12-month period.
? continuation of group health benefits during FMLA leave.
? restoration to the same or an equivalent job upon return to work.
? retention of accrued benefits.
? protection from discrimination as a result of taking FMLA leave.
Q: What are my notification responsibilities as an employer?

The following is a summary of the major employee notifications an employer is required to make in various circumstances under FMLA.

POST FMLA POSTER http://www.dol.gov/esa/regs/compliance/posters/pdf/fmlaen.pdf
? The poster and the text must be large enough to be easily read and contain fully legible text. An employer that willfully violates the posting requirement may be assessed a civil money penalty.
? Failure to post the required notice prevents the employer from taking any adverse action against an employee, including denying FMLA leave, failing to provide advance notice of a need to take FMLA leave.
? When appropriate, the employer must provide the notice in a language the employees can read.

If an employer provides an employee handbook to all employees that describes the employer's policies regarding leave, wages, attendance, and similar matters, the handbook must incorporate information on FMLA rights and responsibilities and the employer's policies regarding FMLA.

An employer must observe any employment benefit program or plan that provides greater family or medical leave rights to employees than the rights established by the FMLA. Conversely, the rights established by the Act may not be diminished by any employment benefit program or plan. For example, a provision of a CBA which provides for reinstatement to a position that is not equivalent because of seniority is superseded by FMLA.

? 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.

There are eight pieces of information that an employer must provide in writing to an employee who requests FMLA leave:
1. Whether the leave will be counted against the employee’s FMLA leave entitlement;
2. Requirements for furnishing medical certification (Form WH-380) http://www.dol.gov/esa/regs/compliance/whd/fmla/wh380.pdf for a serious health condition and the consequences for failing to do so;
3. The employee’s right to substitute paid leave and whether the employer will require the substitution of paid leave;
4. Requirements for making any health benefit premium payments; consequences for failing to make timely payments; and, circumstances under which coverage might lapse;
5. Requirements to submit a fitness-for-duty certificate to be restored to employment;
6. Employee’s status as a "key" employee;
7. Employee’s right to restoration when leave is completed; and
8. Employee’s potential liability if the employer makes the employee’s health insurance premium payments while the employee is on unpaid FMLA leave if the employee fails to return to work.
This written Prototype Notice (Form WH-381) http://www.dol.gov/esa/forms/whd/WH-381.pdf should be provided to the employee within a reasonable time after the employee gives notice of the need for FMLA leave, within one or two business days, if feasible.

There are four methods for determining the 12-month period in which the 12 weeks of leave entitlement occurs. The employer has the option of selecting any one, but once selected, it must be applied uniformly.

Below is a list of the four methods:
1. Calendar year
2. Fixed 12-month "leave year" such as fiscal year, a year required by state law, or a year starting on an employee's "anniversary" date
3. 12-month period measured forward from the date any employee's first FMLA leave begins
4. "Rolling" 12-month period measured backward from the date an employee uses any FMLA leave An employer wishing to change to another alternative is required to give at least 60 days notice to all employees.
If an employee's premium payment is more than 30 days late, absent other company policies, the employer may drop the employee from coverage of the group health benefit plan. Before doing so, however, the employer must provide the employee with at least 15 days written notice before the date coverage is to cease.

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