FMLA

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Federal

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Authors: Sofija Anderson, Michelle Barrett Falconer, Jane Ann Himsel, Diane L. Kimberlin, Alexis C. Knapp, Casey Kurtz, Deborah D. Cannavino, Lisa Lichterman Leach, Sarah E. Moss, Judith A. Paulson, Mark T. Phillis, Barbara Rittinger Rigo, Jean L. Schmidt, Terri M. Solomon and Susan A. P. Woodhouse, Littler Mendelson, PC

Summary

  • The Family and Medical Leave Act (FMLA) became effective in 1993. The law's stated purpose is to help employees balance their work and family responsibilities by taking reasonable unpaid leave for certain family and medical reasons, and to promote equal employment opportunity for men and women. See The Family and Medical Leave Act.
  • The FMLA requires covered employers to provide 12 workweeks of leave during an applicable leave year to an eligible employee for the following reasons: the employee's inability to work due to a serious health condition; to care for an immediate family member with a serious health condition; the birth, adoption or foster care of the employee's child; and to address a military exigency arising from a family member's military duty or call to military duty. See Qualifying Reasons for Leave; Designating, Calculating and Tracking Leave Requests.
  • The FMLA requires covered employers to provide 26 workweeks of leave during an applicable leave year for an eligible employee to care for a military servicemember with a serious injury or illness. See Qualifying Reasons for Leave; Designating, Calculating and Tracking Leave Requests.
  • The FMLA and its regulations use many terms of art that are defined by the Department of Labor (DOL), including serious health condition, qualifying exigency, health care provider and key employee, among others. See FMLA Definitions, Generally.
  • FMLA leave may be taken in a single block of consecutive days or on an intermittent or reduced-schedule basis. See Administering and Processing Intermittent and Reduced Schedule Leave Requests.
  • Employers covered by the FMLA include private employers with more than 50 employees, public agencies, public school boards, and public and private elementary and secondary schools. A covered employer's managers also may be considered employers under the Act. See FMLA Employer Coverage.
  • There are specific rules for how employees are to be counted for purposes of determining whether a private employer meets the 50-employee threshold. See FMLA Employer Coverage.
  • There are unique rules under the FMLA for elementary and secondary schools, which affect the use of certain types of FMLA leave and employees' entitlement to be restored to an equivalent position at the end of leave. See FMLA Employer Coverage.
  • An employer may be covered by the FMLA as a result of a relationship it has with another employer (or former employer). These situations include joint employer, integrated employer and successor employer relationships. See FMLA Employer Coverage.
  • The FMLA imposes various notice obligations on employees, including the requirement that they provide their employer with enough information for the employer to determine that their absence may be for an FMLA-qualifying reason. Employees also have an obligation to cooperate with their employer when the employer makes reasonable inquiries aimed at determining whether or not the FMLA applies. See Receiving and Reviewing Employee Requests for FMLA Leave.
  • Employees' notice obligations vary depending on the FMLA-qualifying reason for the leave and whether or not the need for leave is foreseeable or unforeseeable. If an employee's request for leave is late, the employer may be able to delay or deny the leave. See Receiving and Reviewing Employee Requests for FMLA Leave.
  • An employer can impose other notice obligations on its employees, including requiring them to follow the employer's normal procedures for requesting leave and to update the employer when the employee's leave needs change. Employee notice requirements may not be more rigorous than those imposed by the FMLA, and many such notice requirements must be excused if there are extenuating circumstances. See Receiving and Reviewing Employee Requests for FMLA Leave.
  • The FMLA includes a three-prong test for determining whether an employee is eligible for leave. The three prongs involve how long the employee has been employed by the employer, how many hours the employee has worked during the 12 months preceding the requested leave, and how many employees are employed at the relevant worksite. See Determining Employee Eligibility for FMLA Leave.
  • When calculating an employee's length of service for purposes of determining FMLA eligibility, there are specific rules for what time may and may not be counted. See Determining Employee Eligibility for FMLA Leave.
  • When calculating an employee's amount of recent service for purposes of determining FMLA eligibility, the only hours counted are those that are considered compensable under the Fair Labor Standards Act, and there are special rules relating to exempt employees and employees returning from uniformed service. See Determining Employee Eligibility for FMLA Leave.
  • When calculating the number of employees employed at the employee's worksite for purposes of determining FMLA eligibility, there are specific rules regarding which employees may be counted and regarding situations where an employee does not have a fixed worksite or works from home. See Determining Employee Eligibility for FMLA Leave.
  • An employee may be entitled to FMLA leave due to the employee's own serious health condition, which is defined as an injury, illness, impairment or physical or mental condition that involves inpatient care or continuing treatment by a health care provider. See Qualifying Reasons for Leave.
  • The FMLA's regulations detail what qualifies as inpatient care and continuing treatment. Continuing treatment includes: incapacity plus treatment; pregnancy or prenatal care; chronic conditions; permanent or long-term conditions; or conditions requiring multiple treatments. See Qualifying Reasons for Leave.
  • Voluntary cosmetic treatments and routine medical conditions such as the common cold and the flu generally are not considered serious health conditions, unless complications arise. See Qualifying Reasons for Leave.
  • An employee may be entitled to FMLA leave to care for the employee's immediate family member who has a serious health condition, when the employee is needed to provide physical care and/or psychological support and reassurance. See Qualifying Reasons for Leave.
  • An employee may only take FMLA leave to care for a son or daughter over the age of 18 with a serious health condition if the child is incapable of self-care because of a physical or mental disability. See Qualifying Reasons for Leave.
  • An employee may be entitled to FMLA leave for the birth, adoption, or foster care of an employee's child within 12 months following birth or placement of the child (bonding leave). See Qualifying Reasons for Leave.
  • For certain types of FMLA leave, spouses who work for the same employer may be limited to a combined total of leave that is equivalent to the entitlement one of them otherwise would have received. See Qualifying Reasons for Leave; Designating, Calculating and Tracking Leave Requests.
  • An employee with a family member who is on covered active military duty - or call to covered active duty - status may take FMLA leave to address a military exigency, which can include: short-notice deployment; military events and related activities; childcare and school activities; financial and legal arrangements; counseling; rest and recuperation; post-deployment activities. See Qualifying Reasons for Leave.
  • An employee may take FMLA leave to care for a family member who is a covered servicemember (including a covered veteran) with a serious injury or illness incurred or aggravated in the line of duty while on active duty. See Qualifying Reasons for Leave.
  • Employers are required to provide general notice of the FMLA's provisions to employees, using a workplace posting, as well as by incorporation of the posting into any written policies the employer provides to employees regarding leaves and/or benefits. See Preparing for FMLA Requests.
  • An employer should consider creating a detailed FMLA policy in order to communicate employee leave entitlements and obligations, as well as the various ways the employer has exercised its discretion with regard to FMLA implementation. See Creating an FMLA Policy and/or Other Written Guidance.
  • An employer may require employees requesting FMLA leave to present an appropriate certification of the underlying facts that form the basis for the leave. Generally speaking, an employer may require certification of an employee's need for FMLA leave because of the serious health condition of the employee or the employee's family member, the serious injury or illness of a covered military servicemember or a qualifying military exigency. See Requesting Certification of the Need for Leave.
  • Employees are obligated to submit FMLA certifications within 15 days of receiving notice of the obligation, unless it is not practicable despite the employees diligent, good faith efforts. See Requesting Certification of the Need for Leave.
  • Employers may require that FMLA certifications contain specified information related to the employee's request for leave. See Requesting Certification of the Need for Leave.
  • The FMLA provides that only health care providers may complete medical-related FMLA certifications, and it defines who may qualify as a health care provider. See Requesting Certification of the Need for Leave.
  • Employees may support their need for FMLA leave to care for a covered servicemember by submitting Invitational travel orders (ITOs) and invitational travel authorizations (ITAs). See Requesting Certification of the Need for Leave.
  • If a certification submitted by an employee in connection with a request for FMLA leave is incomplete or unclear, the employer may follow specific procedures in order to obtain a complete and clear certification. See Requesting Certification of the Need for Leave.
  • An employer should follow certain procedures to authenticate an FMLA certification submitted by an employee, and an employee's authorization is not required. See Requesting Certification of the Need for Leave.
  • In certain circumstances and with the employee's authorization, certain employer representatives may contact the health care provider who completed an FMLA certification in order to clarify the certification. See Requesting Certification of the Need for Leave.
  • If an employer has reason to doubt the validity of a medical certification, an employer can require an employee to obtain a second opinion from a health care provider selected by the employer, at the employer's cost. See Requesting Certification of the Need for Leave.
  • If the second opinion contradicts the initial certification, the employer may require the employee to obtain a third opinion from a health care provider jointly selected by the employee and the employer, at the employer's cost. The results of the third opinion are final and binding. See Requesting Certification of the Need for Leave.
  • In certain circumstances, an employer can seek recertification of an employee's FMLA leave. There are specific rules regarding when and in what manner an employer may seek recertification. See Requesting Certification of the Need for Leave.
  • Second and third opinions are not permitted in connection with recertifications of an employee's need for FMLA. See Requesting Certification of the Need for Leave.
  • In circumstances where the FMLA generally permits the employer to contact an employee's health care provider, before making such contact the employer must obtain a release from the employee (or the employee's family member) that is compliant with the Health Insurance Portability and Accountability Act (HIPAA). See Communicating With Health Care Provider.
  • Title II of the Genetic Information Nondiscrimination Act (GINA) prohibits employers from obtaining "genetic information" about an employee in certain circumstances. To avoid liability under GINA for acquiring such information in connection with FMLA administration, certain FMLA medical inquiries should be accompanied by appropriate GINA "safe harbor" language. See Communicating With Health Care Provider.
  • In addition to general notice requirements, the FMLA imposes several other notice obligations on employers, including requirements to provide eligibility notices, rights and responsibilities notices and designation notices. See Designating, Calculating and Tracking Leave Requests.
  • The eligibility notice must contain specific categories of information whose intent is to inform the employee whether or not the employee meets the threshold eligibility requirements for FMLA leave, such as the hours-worked requirements. The DOL has issued an optional model form that can be used for this purpose. See Designating, Calculating and Tracking Leave Requests.
  • The FMLA requires the employer to deliver the eligibility, rights and responsibilities and designation notices within certain time limits. Employers who miss these time limits may be subject to FMLA interference claims if the late notice harms the employee. See Designating, Calculating and Tracking Leave Requests.
  • The rights and responsibilities notice must contain specific categories of information whose aim is to identify the employee's FMLA entitlements and obligations. The DOL has issued an optional model form that can be used for this purpose. See Designating, Calculating and Tracking Leave Requests.
  • The designation notice must inform the employee whether or not the employee's request for FMLA leave has been granted in whole or in part, and designate the particular days off (if known in advance) that will be considered FMLA leave. If the designation notice indicates that leave has been granted, the notice also must include specific information regarding the leave, including any employee obligation to present a fitness-for-duty certification in order to be returned to work. The DOL has issued an optional model form that can be used for this purpose. See Designating, Calculating and Tracking Leave Requests.
  • In some cases, the employer and employee may have a dispute regarding whether or not the employee's time off should be designated as FMLA leave. The FMLA requires a specific procedure for resolving such disputes, which can result in the employer designating leave as FMLA against the employee's wishes. See Designating, Calculating and Tracking Leave Requests.
  • An employer's retroactive designations of FMLA leave (designations that are untimely under the regular timing rules for designation notices) are permitted in certain circumstances. However, retroactive designations are prohibited if they would cause harm to the employee, such as by resulting in discipline that the employee would not otherwise have received had the notice been timely delivered. See Designating, Calculating and Tracking Leave Requests.
  • Employers are required to provide FMLA notices to employees in languages other than English in some circumstances. See Designating, Calculating and Tracking Leave Requests.
  • Employers' failure to provide mandatory FMLA notices to employees can constitute interference with, restraint, or denial of an employee's FMLA rights, if such failure causes the employee actual harm. See Designating, Calculating and Tracking Leave Requests.
  • An employer may choose one of four leave years by which it will measure all employees' use of FMLA leave (excluding leave to care for a covered servicemember). The methods include: the calendar year, a fixed leave year, the 12-month period measured forward from the beginning date of leave; and a rolling 12-month period measured backward from the date the employee uses any FMLA leave. See Designating, Calculating and Tracking Leave Requests.
  • Employers can avoid employees "stacking" FMLA leave at the end of one leave year and the beginning of the next by adopting the rolling backward leave year. See Designating, Calculating and Tracking Leave Requests.
  • There are special rules employers must follow if they wish to change the leave year they use for measuring employees' use of FMLA leave. See Designating, Calculating and Tracking Leave Requests.
  • All FMLA leave to care for a covered servicemember is measured using the 12-month period measured forward from the date an employee first uses FMLA leave to care for a covered servicemember. See Designating, Calculating and Tracking Leave Requests.
  • The FMLA has rules governing whether or not a holiday is counted against an employee's leave entitlement when it falls during a period when the employee is using FMLA leave. See Designating, Calculating and Tracking Leave Requests.
  • Intermittent FMLA leave is leave taken in separate blocks of time due to a single FMLA-qualifying reason rather than in one long block of time. See Administering and Processing Intermittent and Reduced Schedule Leave Requests.
  • Reduced schedule FMLA leave is a scheduled leave that reduces the usual number of working hours that an employee works in a workday or workweek. See Administering and Processing Intermittent and Reduced Schedule Leave Requests.
  • Intermittent or reduced schedule FMLA leave may be taken for both planned medical treatment and unanticipated medical treatment or medical issues. For example, an employee may need intermittent leave due to a flare-up of a chronic medical condition, or to go to doctor's appointments or receive chemotherapy treatments. See Administering and Processing Intermittent and Reduced Schedule Leave Requests.
  • The FMLA does not require employers to permit employees to take intermittent or reduced schedule FMLA leave for the birth, adoption, or foster care of the employee's child, although employers may agree to do so. See Administering and Processing Intermittent and Reduced Schedule Leave Requests.
  • It is important for employers to scrutinize medical certifications submitted by employees in support of intermittent FMLA leave, in part to ensure that they specify (if possible) the expected frequency and duration of the employee's need for intermittent leave. See Administering and Processing Intermittent and Reduced Schedule Leave Requests.
  • There are special rules relating to an employer's obligation to designate intermittent FMLA leave. See Administering and Processing Intermittent and Reduced Schedule Leave Requests.
  • Under the FMLA, an employer must account for the use of FMLA leave using an increment no greater than the shortest period of time that the employer uses to account for the use of other forms of employee leave. Regardless of the increment the employer uses for other forms of leave, the FMLA increment cannot be greater than one hour. See Administering and Processing Intermittent and Reduced Schedule Leave Requests.
  • The FMLA includes special rules for tracking intermittent and reduced schedule leave, which involve an assessment of each employee's normal or average workweek, including any mandatory overtime hours. See Administering and Processing Intermittent and Reduced Schedule Leave Requests.
  • There are special FMLA regulations applicable to elementary and secondary schools that relate to the use of intermittent or reduced schedule leave by instructional employees. See Administering and Processing Intermittent and Reduced Schedule Leave Requests.
  • There are special FMLA regulations applicable to airline flight crew employees that related to the use of intermittent or reduced schedule leave. See Administering and Processing Intermittent and Reduced Schedule Leave Requests.
  • In certain limited circumstances, employers can require employees returning from intermittent and reduced schedule FMLA leave to provide a fitness for duty certification. See Administering and Processing Intermittent and Reduced Schedule Leave Requests.
  • There are special FMLA regulations applicable to airline flight crew employees that related to the use of intermittent or reduced schedule leave. See Administering and Processing Intermittent and Reduced Schedule Leave Requests.
  • Employers often perceive that employees are abusing intermittent FMLA leave. There are several strategies employers can employ in an effort to combat the abuse of intermittent leave. See Administering and Processing Intermittent and Reduced Schedule Leave Requests; Curbing FMLA Fraud and Abuse.
  • An employer has several obligations to an employee who uses FMLA leave, including the obligations to maintain the employee's health benefits during leave, to follow certain rules regarding other employee benefits and compensation, and to reinstate the employee to his or her same position (or an equivalent position) upon return from FMLA leave. See Employer Obligations When Employee Out on Leave.
  • While an employee is on FMLA leave, the employer must continue the employee's group health plan benefits under the same terms as when the employee was working. There are specific rules defining what qualifies as a group health plan benefit covered by this rule. See Employer Obligations When Employee Out on Leave.
  • If an employee chooses not to retain group health plan coverage during FMLA leave, the employee is entitled to be reinstated on the same terms as prior to taking the leave, including restoring family or dependent coverage. The employer also cannot require the employee to meet any qualification requirements imposed by the plan upon return from leave. See Employer Obligations When Employee Out on Leave.
  • During FMLA leave, an employee who wishes to retain group health plan coverage must continue to pay any share of premiums the employee paid prior to leave. If premiums are raised or lowered, the employee must pay the new premium rates. See Employer Obligations When Employee Out on Leave.
  • If an employee's FMLA leave is paid, the employer may deduct the employee's health benefit premiums from the employee's pay. If the leave is unpaid, an employer has a number of options for obtaining payment for health benefit premiums from the employee. See Employer Obligations When Employee Out on Leave.
  • An employer must follow specific procedures before ceasing an employee's health benefits for failure to pay premiums while the employee is on FMLA leave. See Employer Obligations When Employee Out on Leave.
  • If an employee fails to return to work after unpaid FMLA leave has been exhausted or expires, the employer may recover its share of health plan premiums paid during the unpaid FMLA leave, except under certain limited circumstances. See Employer Obligations When Employee Out on Leave.
  • If an employer provides a new health plan/benefits or changes its health plans/benefits while an employee is on FMLA leave, the employee is entitled to the new or changed plan/benefits, and the FMLA imposes certain notice obligations on employers in such situations. See Employer Obligations When Employee Out on Leave.
  • The taking of FMLA leave cannot result in the loss of any employment benefit (including non-health benefits) that an employee accrued before the leave began. See Employer Obligations When Employee Out on Leave.
  • The FMLA does not require the continuation of unaccrued non-health related benefits while an employee is on FMLA leave. Instead, whether an employee is entitled to the continued non-health benefit(s) while on FMLA leave depends on the established company policy for providing each individual benefit when the employee is on an equivalent leave status for reasons that do not qualify as FMLA leave. See Employer Obligations When Employee Out on Leave.
  • The types of non-health related benefits that are governed by this rule may include: pension/retirement benefits, seniority benefits, vacation/sick days, holiday pay, life insurance/disability insurance, stock options and bonuses. See Employer Obligations When Employee Out on Leave.
  • FMLA leave is generally unpaid. However, employers may be permitted to require employees to use paid time off benefits, or they may permit employees to choose whether or not they will use paid time off benefits. See Compensation While on FMLA Leave.
  • An employee's ability to use accrued paid time off benefits (e.g. fringe benefits such as vacation pay, sick pay or paid personal days) while taking FMLA leave is determined by the terms and conditions of the employer's policies, as well as state or local law. See Compensation While on FMLA Leave.
  • The FMLA protects employees who exercise FMLA rights from discrimination or retaliation based on the taking of FMLA leave. Therefore, an employer cannot use an employee's use of FMLA leave as a factor in deciding to take an adverse employment action against the employee See Terminating or Taking Otherwise Negative Action Against Employees on Leave; Actions Prohibited by the FMLA.
  • Upon return from an FMLA leave, an employee is entitled to be reinstated to the employee's original job, or to an equivalent job. For a different job to be considered equivalent, it must be virtually identical to the original job in terms of pay, benefits and other employment terms and conditions. See Reinstating Employees Returning from FMLA Leave.
  • While an employee is on FMLA leave, the employer can, in certain circumstances, require periodic updates from the employee regarding his or her leave status and/or intent to return to work. The information obtained through these updates may trigger certain permitted actions by the employer. See Reinstating Employees Returning from FMLA Leave.
  • An employer must notify employees in the FMLA designation notice of any requirement that the employee provide a fitness-for-duty certification before being returned from leave. This notification must state whether any required fitness-for-duty certification must address the employee's ability to perform the essential functions of the job. See Reinstating Employees Returning from FMLA Leave.
  • An employer may seek to authenticate or clarify a fitness-for-duty certification. An employer may not require a second or third opinion regarding such a certification. See Reinstating Employees Returning from FMLA Leave.
  • Certain key employees of an employer may be denied reinstatement after FMLA leave in certain circumstances, provided that the employer follows specific notice and procedural requirements in connection with the employee's request for leave. See Reinstating Employees Returning from FMLA Leave.
  • Reinstatement from FMLA leave also may be denied in other, limited, circumstances, including situations where the employee would not have remained employed even if FMLA leave had not been taken. See Reinstating Employees Returning from FMLA Leave.
  • An employee who fraudulently obtains FMLA leave from an employer may be denied the FMLA's requirements of job restoration and maintenance of health benefits. There are strategies employers can implement to attempt to eliminate or reduce FMLA fraud or abuse. See Curbing FMLA Fraud and Abuse.
  • The obligations imposed on employers by the FMLA intersect and/or run concurrently with numerous obligations set forth in separate, but related, laws, including (but not limited to) the Americans with Disabilities Act, workers' compensation laws, the Fair Labor Standards Act, the Pregnancy Discrimination Act, the Uniformed Services Employment and Reemployment Act, the Employee Retirement Income Security Act, the Consolidated Omnibus Budget Reconciliation Act; Health Insurance Portability and Accountability Act, and various state laws. Therefore, employers must be aware of the impact of such laws on their administration of FMLA leave. See The Bermuda Triangle Has Expanded: The FMLA's Intersection With the ADA, Workers' Compensation and More - Legal Insight.
  • The FMLA requires that employers make, keep and preserve certain records concerning compliance with the FMLA. See FMLA Recordkeeping Requirements.
  • Certain information regarding an employee's FMLA leave may be maintained in the employee's personnel file. However, any medical information concerning the employee or the employee's family that is gathered through the FMLA process must be maintained and kept in separate medical files. See FMLA Recordkeeping Requirements.
  • The FMLA forbids interference with an employee's rights under the law and with legal proceedings relating to an employee's FMLA rights. Employers may not deny employees their rights under the FMLA, or terminate or in any other way discriminate against any person, whether or not an employee, for opposing or complaining about any violation of the FMLA. See Actions Prohibited by the FMLA.
  • Employees who feel their FMLA rights have been violated may file a complaint with the Secretary of Labor or may file a private lawsuit for violation of the FMLA. See Enforcement Rights.
  • If an employer is deemed to have violated the FMLA, potential remedies include monetary and equitable relief. Liquidated (double) damages may be available to the employee if the employer's violations of the FMLA are deemed willful. See Enforcement Rights.
  • If the Department of Labor concludes that an employer willfully failed to post the required general notice posting in the workplace, it can impose a civil money penalty on the employer. See Enforcement Rights.

State Requirements

The following states have additional requirements for this topic under applicable state law.