FMLA: Federal

FMLA requirements by state

Authors: Sofija Anderson, Michelle Barrett Falconer, Diane L. Kimberlin, Alexis C. Knapp, Casey Kurtz, Lisa Lichterman Leach, Judith A. Paulson, Mark T. Phillis, Barbara Rittinger Rigo, Jean L. Schmidt, Terri M. Solomon and Susan A. P. Woodhouse, Littler

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 a covered employer 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.
  • A covered employer must also 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.
  • An employer covered by the FMLA includes a private employer with 50 or more employees, public agencies, public school boards and public and private elementary and secondary schools. A covered employer's managers also may be considered an employer under the FMLA. 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 an employee, including the requirement that he or she provide enough information for the employer to determine that the absence may be for an FMLA-qualifying reason. An employee also has an obligation to cooperate when the employer makes reasonable inquiries aimed at determining whether or not the FMLA applies. 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.
  • 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 employer is required to provide a general notice of the FMLA's provisions to its employees displaying a workplace poster, as well as by incorporating 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 an employee requesting FMLA leave to present an appropriate certification of the underlying facts that form the basis of the need 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.
  • In addition to general notice requirements, the FMLA imposes several other notice obligations on an employer, including requirements to provide eligibility notices, rights and responsibilities notices and designation notices. 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.
  • 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 appointments or receive chemotherapy treatments. See Administering and Processing Intermittent and Reduced Schedule Leave Requests.
  • It is important for an employer to scrutinize a medical certification submitted by an employee in support of intermittent FMLA leave, in part to ensure that it specifies (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.
  • 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.
  • In certain limited circumstances, an employer can require an employee 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.
  • An employer often perceives that an employee is abusing intermittent FMLA leave. There are several strategies an employer 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.
  • 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 an employer 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.
  • FMLA leave is generally unpaid. However, an employer may be permitted to require employees to use paid time off benefits or it may permit employees to choose whether or not they will use paid time off benefits. See Compensation While on FMLA Leave.
  • The FMLA protects employees from discrimination or retaliation based on the exercising of FMLA rights. 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.
  • 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 in which the employee would not have remained employed even if FMLA leave had not been taken. See Reinstating Employees Returning from FMLA Leave.
  • The obligations imposed on an employer 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 Rights Act, the Employee Retirement Income Security Act, the Consolidated Omnibus Budget Reconciliation Act, the Health Insurance Portability and Accountability Act and various state laws. Therefore, an employer must be aware of the impact of such laws on its 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 an employer 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. An employer 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.
  • 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.

The Family and Medical Leave Act

The Family and Medical Leave Act (FMLA) became effective in 1993. The purpose of the FMLA is to help employees balance their work and family responsibilities by taking a reasonable unpaid leave for certain family and medical reasons, and to promote equal employment opportunities for men and women.

The FMLA entitles an eligible employee of a covered employer to take unpaid, job-protected leave for the following reasons:

  • The birth, adoption, or foster care of an employee's child;
  • An employee's own serious health condition;
  • To care for an employee's family member with a serious health condition;
  • To address certain qualifying exigencies relating to the military service of an employee's family member; and
  • To care for a family member who is a covered military servicemember (including a covered veteran) who has a serious injury or illness incurred or aggravated in the line of duty.

During FMLA leave, an employer is required to continue the employee's group health insurance coverage under the same terms and conditions as if they had not taken leave. In most situations, an employee taking leave is entitled to be restored to the same position the employee held prior to the leave. The FMLA prohibits an employer from interfering with employees' rights under the law and authorizes the US Department of Labor (DOL) to investigate and enforce its provisions.

Although the FMLA was touted when it was enacted as "one of the easiest laws to administer of all the laws" for which the DOL has responsibility, many employers faced with applying the FMLA on a daily basis have found it to be an administrative nightmare. This difficulty primarily arises from the extremely technical nature of the FMLA's implementing regulations. Such regulations, for example:

  • Impose various notice obligations on an employee and an employer that differ based on the particular reason for leave;
  • Dictate precise methods by which an employer may determine an employee's eligibility and entitlement to leave; and
  • Prohibit an employer from discouraging the use of FMLA leave.

Complicating matters further is the fact that an employee's use of FMLA leave (especially when taken on an intermittent or reduced schedule basis) can create significant operational hardships for an employer, in addition to being ripe for employee abuse.

Revisions/Changes to the FMLA

The Department of Labor (DOL) issued regulations implementing the FMLA in 1995. The FMLA was revised in certain respects in 2008, and the regulations were updated effective January 2009. The law was updated again later in 2009. The DOL issued new revisions to the regulations finalized in March 2013.

On June 26, 2013, in United States v. Windsor, +2013 U.S. LEXIS 4921, the US Supreme Court invalidated Section 3 of the federal Defense of Marriage Act (DOMA), finding it unconstitutional to define marriage under all federal laws and regulations as that between a man and a woman, and spouse as a person of the opposite sex who is a husband or wife. Pre-Windsor, the DOL said that DOMA's federal definition of marriage and spouse applied to the FMLA since the FMLA is a federal law. As a result, employees in same-sex marriages were ineligible to take FMLA leave to care for their spouse.

On March 27, 2015, the DOL issued a Final Rule +80 FR 9989 amending the FMLA's definition of spouse, making FMLA spousal leave eligibility universal for all legally married same-sex spouses. The new definition looks to the law of the state in which the marriage was entered into, as opposed to the law of the state in which the employee resides. This "place of celebration" rule allows all legally married couples, whether opposite-sex or same-sex, or married under common law, to have consistent FMLA family leave rights no matter where they live. Prior to the change an employee's right to take FMLA leave to care for his or her same-sex spouse was based on whether the couple's marriage was recognized in their state of residency.

On June 26, 2015, the Supreme Court ruled that the 14th Amendment requires a state to:

  1. License a marriage between two people of the same sex; and
  2. Recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state.

See Obergefell v. Hodges, +2015 U.S. LEXIS 4250 (U.S. June 26, 2015). Same-sex couples may now be lawfully married in any state and are entitled to FMLA spousal leave benefits. Therefore, as long as a same-sex couple is legally married, the couple will be able to:

  • Take FMLA leave to care for their spouse with a serious health condition;
  • Take qualifying exigency leave due to their spouse's covered military service; and
  • Take military caregiver leave for their spouse.

This also means an employee may take leave to care for:

  • His or her stepchild, who is the child of the employee's same-sex spouse, even if the employee did not stand in loco parentis to the child; and
  • His or her stepparent, who is the same-sex spouse of the employee's parent, even if the stepparent did not stand in loco parentis to the employee.

In addition, an employer should be careful if it seeks to confirm an employee's same-sex spousal relationship (for purposes of the FMLA) to ensure it does not discriminate in any way. Under the FMLA, an employer may require an employee to confirm their family relationship by either providing:

  • Documentation such as a marriage license or a court document; or
  • A simple statement asserting that the requisite family relationship exists.

It is the employee's choice, however, of whether to provide a simple statement or another type of document. While the FMLA allows an employer to confirm family relationships, the employer's practices to confirm such relationships should be the same for employees in same-sex marriages as those in opposite-sex marriages (e.g., if an employer does not ask heterosexual employees for marriage licenses it should be careful about asking homosexual employees for such documentation). +29 C.F.R. § 825.122(k). In addition, if an employee has already submitted proof of marriage to the employer for another purpose (e.g., electing health care benefits for the employee's spouse), such proof is sufficient to confirm the family relationship for purposes of FMLA leave. The FMLA also covers employees in common law marriages as long as the common law marriage became valid in a state that permits such marriages. An employer should look to state law governing common law marriage to determine how to verify the relationship for purposes of the FMLA.

Apart from FMLA considerations, an employer should look at existing policies that provide for leave based on spousal relationships, such as bereavement leave or military leave. Policy language (such as how a spouse is defined) and accompanying forms/notices may need to be revised. Supervisors, managers and leave administrators should be trained on such policies, forms/notices and practices.

Couples in civil unions and domestic partnerships continue to be ineligible to use FMLA leave to care for a partner. The couple must be legally married to be considered spouses for FMLA purposes. That being said, an employer may always provide greater leave rights than those legally required.

FMLA Definitions, Generally

Below are definitions of concepts necessary for determining eligibility under the FMLA.

Eligible Employee. An eligible employee is one who works for a covered employer and who meets the following three criteria:

  • The employee must have been employed by the covered employer for at least 12 total months as of the leave's start;
  • The employee must have been employed for at least 1,250 hours during the 12-month period prior to the leave's start (subject to special hours of service requirements for airline flight crew employees); and
  • The employee must be employed at a worksite where 50 or more of the covered employer's employees are employed within 75 miles of that worksite.

+29 C.F.R. § 825.110 (a). An employer must determine whether an employee has met the length of service and hours of service criteria as of the date when the leave is to start. An employee taking a non-FMLA leave can meet the 12-month eligibility requirements while on leave. Any leave taken after the employee meets the 12-month eligibility requirement will be considered FMLA leave. +29 C.F.R. § 825.110 (d).

The employer determines whether the employee meets the 50 or more employee requirement as of the date the employee gives notice of the need for leave. Once the employee is deemed eligible for leave, any subsequent changes to the number of employees at the worksite will not affect the employee's eligibility for the leave. +29 C.F.R. § 825.110 (e). See Number of Employees - Who Should Be Counted.

If the employee-employer relationship is interrupted, such as by a layoff from employment, the employee must be recalled to employment or otherwise reemployed to be eligible for FMLA leave. +29 C.F.R. § 825.112(c).

Covered Employer. A covered employer includes three categories of employers.

The first category includes any person engaged in commerce or in any industry or activity affecting commerce that employs 50 or more employees for each working day during 20 or more calendar workweeks in the current or previous calendar year. An employer of 50 or more employees are automatically considered to be engaged in commerce or in an industry or activity affecting commerce. The second category covers public agencies regardless of the number of employees employed. The third category encompasses public and private elementary and secondary schools no matter the number of employees employed.

Typically, separate establishments or divisions of a corporation are considered to be part of the same employer. Within these three employer categories, any person who acts directly or indirectly in an employer's interest with regard to employees is considered to fall within the definition of an employer. Thus, an individual corporate officer that acts in the employer's interest could be considered under a covered employer and could be held individually liable for FMLA violations. +29 C.F.R. § 825.104 (d). See FMLA Employer Coverage.

  • Integrated Employer. Separate entities will be considered to be parts of a single employer, and their respective employees will be counted toward the 50-employee requirement, if the separate entities meet the integrated employer test. +29 C.F.R. § 825.104 (c)(2). See FMLA Employer Coverage.
  • Joint Employer. If two or more employers exercise some control over the work or working conditions of an employee, the employers may be considered joint employers. The businesses do not need to have the same owners, managers or facilities to be considered joint employers. Rather, if the employee performs work that simultaneously benefits two or more employers or works for two or more employers at different times during the workweek, a joint employer relationship may exist. +29 C.F.R. § 825.106 (a). For FMLA purposes, this determination is made the same way as it is for Fair Labor Standards Act (FLSA) purposes. A joint employment relationship is often found when a temporary employment agency supplies employees to another employer. If a professional employer organization (PEO) has to control an employee's employment, the PEO may be viewed as a joint employer. To determine whether joint employer status exists, the entire relationship must be reviewed. See FMLA Employer Coverage.
  • Successor in Interest. A successor in interest will be considered a covered employer by looking at the totality of all factors. If an employer is a successor in interest, it must provide FMLA leave for eligible employees who provided appropriate notice to the predecessor employer. This obligation includes abiding by all responsibilities and obligations imposed on the employer by the FMLA and to extend all rights provided to the employee under FMLA. +29 C.F.R. § 825.107 . See FMLA Employer Coverage.

Adoption. Adoption means legally and permanently assuming the responsibility of raising a child as one's own. +29 C.F.R. § 825.122 (f). Time off from work for the placement of a son or daughter with an employee for adoption is a qualifying reason for FMLA leave. Time off from work for adoption may include, among other events, attending required counseling sessions, court appearances, attorney consultations, consultations with the doctor(s) representing the birth parent, submitting to a physical examination or travel to another country to complete an adoption. +29 C.F.R. § 825.121 (a)(1). Time off under FMLA for adoption must be taken within the 12-month period following the placement. This 12-month period begins on the day of placement. +29 C.F.R. § 825.121 (a)(2). See Qualifying Reasons For Leave

Foster Care. Foster care is 24-hour care for children in substitution for, and away from, their parents or guardian. Foster care placement is:

  • Made by or with the agreement of the state as a result of a voluntary agreement between the parent or guardian that the child be removed from the home; or
  • Pursuant to a judicial determination that foster care is necessary.

Foster care involves an agreement between the state and foster family that the foster family will take care of the child. While relatives of a child may provide foster care, state action is involved in the removal of the child from parental custody. +29 C.F.R. § 825.122 (g). Time off from work for the placement of a son or daughter with an employee for foster care is a qualifying reason for FMLA leave. Time off from work for foster care placement may include, among other events, attending required counseling sessions, court appearances, attorney consultations or submitting to a physical examination. +29 C.F.R. § 825.121 (a)(1). Time off under FMLA for foster care must be taken within the 12-month period following the placement. This 12-month period begins on the day of placement. +29 C.F.R. § 825.121 (a)(2). See Qualifying Reasons For Leave.

Serious Health Condition. A serious health condition means an illness, injury, impairment or physical or mental condition that involves inpatient care or continuing treatment by a health care provider. +29 C.F.R. § 825.113 (a). Conditions that require voluntary cosmetic treatments, such as plastic surgery, liposuction or scar removal, do not qualify as a serious health condition unless inpatient hospital care is required or unless complications develop. +29 C.F.R. § 825.113 (d).

Generally, unless complications arise, routine conditions such as the common cold, the flu, earaches, upset stomach, minor ulcers, headaches other than migraines, and routine dental or orthodontia problems are not considered serious health conditions and will not qualify for FMLA leave. +29 C.F.R. § 825.113 (d). At present, it is undetermined whether fertility treatments fall under the definition of serious health condition depending on the circumstances. See Culpepper v. BlueCross BlueShield of Tennessee, Inc., +321 Fed. Appx. 491 (6th Cir. 2009) (unpublished). Such determinations are very fact-specific and may require assistance of legal counsel. Substance abuse treatment qualifies as a serious health condition only if the treatment is by a health care provider or by a provider of health care services on referral by a health care provider. An employee's absence from work due to substance abuse is not protected as FMLA leave. +29 C.F.R. § 825.119 (a). See Qualifying Reasons for Leave.

  • Incapacity. Incapacity means the inability to work, attend school or perform other regular daily activities due to a serious health condition, treatment of a serious health condition or recovery from a serious health condition. +29 C.F.R. § 825.113 (b).
  • Inpatient Care. Inpatient care means an overnight stay in a hospital, hospice or residential medical care facility, including any period of incapacity or any subsequent treatment in connection with such inpatient care. +29 C.F.R. § 825.114 .
  • Treatment. Treatment includes examinations to determine if a serious health condition exists, as well as evaluations of the condition. It does not include routine physical examinations, eye examinations or dental examinations. +29 C.F.R. § 825.113 (b).
  • Continuing Treatment. Continuing treatment means treatment by or under the supervision of a health care provider due to: (1) incapacity and treatment; (2) pregnancy or prenatal care; (3) chronic conditions; (4) permanent or long-term conditions; (5) conditions requiring multiple treatments. +29 C.F.R. § 825.115 .
    1. Incapacity and Treatment. Incapacity and treatment is considered a period of incapacity of more than three consecutive, full calendar days and any subsequent treatment or period of incapacity relating to the same condition that also involves one of two different situations. The first situation involves an in-person treatment two or more times within 30 days of the first day of incapacity, unless extenuating circumstances exist. Alternatively, the second situation involves an in-person treatment by a health care provider on at least one occasion that results in a regimen of continuing treatment under the supervision of a health care provider. In either circumstance the first (or only) in person visit to the health care provider must take place within the first seven days of the first day of incapacity. +29 C.F.R. § 825.115 (a).
    2. Pregnancy or Prenatal Care. Any period of incapacity due to pregnancy or prenatal care or for another serious health condition following the birth of a child qualifies as a serious health condition. +29 C.F.R. § 825.115 (b). Leave due to pregnancy may begin before the birth of the child through prenatal care or if the employee's condition makes her unable to work. In addition, if the leave is due to pregnancy or prenatal care, the employee may take leave even if she does not receive treatment from a health care provider during the absence and even if the absence does not last for more than three consecutive days. For example, severe morning sickness that prevents the employee from performing her job would be covered by FMLA. +29 C.F.R. § 825.120 (a)(4). The husband of a pregnant spouse is also entitled to FMLA leave to care for the pregnant spouse who is incapacitated, if he is needed to care for her during prenatal care, or if he is needed to care for her following the child's birth due to the pregnancy or another serious health condition. +29 C.F.R. § 825.120 (a)(5).
    3. Chronic Conditions. A period of incapacity or treatment for the incapacity due to a chronic serious health condition is covered by FMLA. A chronic condition is one which: (1) requires visits at least twice per year for treatment by a health care provider or by a nurse under direct supervision of a health care provider; (2) continues episodically or over an extended period of time; and (3) may cause episodic incapacity rather than a continuing period of incapacity. Episodic chronic conditions include, among other conditions, asthma, diabetes and epilepsy. +29 C.F.R. § 825.115 . In addition, if the leave is due to a chronic condition, the employee may take leave even if the employee does not receive treatment from a health care provider during the absence and even if the absence does not last for more than three consecutive days. For example, an asthma attack that prevents an employee from reporting to work would be covered by FMLA. Similarly, if an employee with asthma is advised by a health care provider to stay at home when the pollen count exceeds a certain level, the absence would qualify as an FMLA leave due to a chronic condition. +29 C.F.R. § 825.115 (f).
    4. Permanent or Long-Term Conditions. The FMLA covers a period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective. For a permanent or long-term condition to be covered by FMLA, the employee or family member must be under the continuing supervision of, but must not necessarily be receiving treatment by, a health care provider. Permanent or long-term conditions include, among other conditions, Alzheimer's, a severe stroke or the terminal stages of a disease. +29 C.F.R. § 825.115 (d).
    5. Conditions Requiring Multiple Treatments. A condition requiring multiple treatments is an absence to receive multiple treatments and to recover from those treatments by a health care provider for: (1) restorative surgery after an accident or other injury; or (2) a condition that would likely result in a period of incapacity of more than three consecutive, full calendar days in the absence of medical intervention or treatment. Examples of conditions requiring multiple treatments include, among other things, chemotherapy or radiation treatment for cancer, physical therapy for severe arthritis, or dialysis for kidney disease. +29 C.F.R. § 825.115 (e)(1)-(2).
  • Regimen. A regimen of continuing treatment includes a course of prescription medication or therapy requiring special equipment to resolve or alleviate the condition. A regimen of continuing treatment that includes taking over-the-counter medications, bed rest, drinking fluids, exercise or other similar activities that can be initiated without a visit to a health care provider is not, on its own, enough to be considered a regimen of continuing treatment under the FMLA. +29 C.F.R. § 825.113 (c).

Needed to Care for. When a medical certification certifies that an employee is needed to care for a family member it means the employee is needed to provide physical and/or psychological care or psychological comfort and reassurance which would be beneficial to the family member who is receiving inpatient or home care. +29 C.F.R. § 825.124 (a). The employee need not be the only family member available to care for the family member. +29 C.F.R. § 825.124 (b). An employee is needed to care for a family member in situations including:

  • Where family members are unable to care for their own basic medical, hygienic, or nutritional needs or safety;
  • Where family members are unable to transport themselves to the doctor;
  • Where the employee acts as a substitute for others who normally care for a family member; or
  • Making arrangements for changes in care, such as transfer to a nursing home or assisted living facility.

+29 C.F.R. § 825.124 .

Health Care Provider. A health care provider is a doctor of medicine or osteopathy who is authorized to by the state in which the doctor practices to practice medicine or surgery and is authorized to diagnose and treat physical or mental conditions. A health care provider can also be any other person determined to be capable of providing health care services. +29 C.F.R. § 825.125. See Requesting Certification of the Need for Leave.

  • Capable of Providing Health Care Services. Individuals who are capable of providing health care services fall in five different categories:
    1. Podiatrists, dentists, clinical psychologists, optometrists and chiropractors authorized to practice in the state and performing within the scope of their practice as defined under state law;
    2. Nurse practitioners, nurse-midwives, clinical social workers and physician assistants who are authorized to practice in the State and performing within the scope of their practice as defined under State law;
    3. Christian Science practitioners listed with the First Church of Christ, Scientist in Boston, Massachusetts;
    4. Any health care provider from whom an employer or the employer's group health plan's benefits manager will accept certification of the existence of a serious health condition to substantiate a claim for benefits; and
    5. A health care provider or others capable of providing health care services who practices in a country other than the US, who is authorized to practice in accordance with the law of that country, and who is performing within in the scope of the individual's practice as defined under that country's laws.

+29 C.F.R. § 825.125 (b).

Medical Certification. An employer may require that an employee's leave to care for a family member's serious health condition or due to the employee's own serious health condition be supported by a medical certification issued by the family member's or the employee's health care provider. The following information may be requested as part of a complete medical certification:

  • The name, address, telephone number and fax number of the health care provider;
  • The health care provider's medical practice/specialization;
  • The approximate date on which the serious health condition began and its probable duration;
  • A statement or description of the appropriate medical facts, which may include symptoms, diagnosis, hospitalization, doctor visits, whether medication has been prescribed, any referrals for evaluation or treatment or any other regimen of treatment, regarding the patient's condition for which FMLA leave is requested;
  • Information sufficient to establish that the family member is in need of care and an estimate of the frequency and duration of the leave when the leave is to care for a family member's serious health condition;
  • Information sufficient to establish the medical necessity of intermittent leave or reduced schedule leave for planned medical treatment and an estimate of the frequency and duration of the leave when the leave requested is on an intermittent or reduced leave basis;
  • Information sufficient to establish the medical necessity of intermittent leave or reduced schedule leave that may result in unforeseeable absences and an estimate of the frequency and duration of leave when the leave requested is on an intermittent or reduced leave basis; and
  • Information sufficient to establish the medical necessity of intermittent leave or reduced schedule leave to care for a family member and an estimate of the frequency and duration of leave when the leave requested is on an intermittent or reduced leave basis.

+29 C.F.R. § 825.306 (a).

The Department of Labor (DOL) has developed two optional medical certification forms - Form WH-380-E and Form WH-380-F - that elicit this information. +29 C.F.R. § 825.306 (b). See Requesting Certification of the Need for Leave.

  • Authentication. An employer may authenticate a medical certification by providing the health care provider with a copy of the medical certification and requesting verification that the information contained on the medical certification was completed and/or authorized by the health care provider who signed the document. No additional medical information may be requested. +29 C.F.R. § 825.307 (a). See Requesting Certification of the Need for Leave.
  • Clarification. An employer may contact the health care provider completing the medical certification to understand the handwriting on the medical certification or to understand the meaning of a response. An employer may not ask for additional information beyond that required by the medical certification form. +29 C.F.R. § 825.307 (a). See Requesting Certification of the Need for Leave.
  • Fitness-for-Duty Certification. An employer may have a uniformly applied policy or practice that requires all similarly situated employees who take leave to obtain and present a fitness-for-duty certification from the employee's health care provider that releases the employee to return to work. The fitness-for-duty certification may only seek information related to the serious health condition for which the employee took leave. +29 C.F.R. § 825.312 . See Requesting Certification of the Need for Leave; Reinstating Employees Returning from FMLA Leave.

Spouse. The FMLA regulations define spouse as "the other person with whom an individual entered into marriage as defined under state law for purposes of marriage in the state in which the marriage was entered into or, in the case of a marriage entered into outside of any state, if the marriage is valid in the place where entered into and could have been entered into in at least one state." +29 C.F.R. § 825.102; +29 C.F.R. § 825.122. However, under the Supreme Court's decision in Obergefell v. Hodges, same-sex couples may be lawfully married in any state and are entitled to FMLA Spousal Leave See Revisions/Changes to the FMLA.

Parent. A parent includes a biological, adoptive, step or foster father or mother, or any other individual who stood in loco parentis to the employee when the employee was a son or daughter. A parent-in-law is not considered a parent under the FMLA. +29 C.F.R. § 825.122 (c).

  • In loco parentis. An individual who stands in loco parentis has day-to-day responsibilities to care for and financially support a child. A biological or legal relationship is not necessary to establish in loco parentis status. +29 C.F.R. § 825.122 (d)(3). See Determining Employee Eligibility for FMLA Leave. In 2010, the DOL issued Administrator's Interpretation No. 2010-3, broadly construing the definition and meaning of in loco parentisto mean someone who either has day-to-day responsibilities to care for a child or who financially supports a child. See Care Due to the Birth of the Employee's Child.

SonorDaughter. When leave is taken for birth, adoption or foster care, or to care for a family member with a serious health condition, a son or daughter means:

  • A biological, adopted, or foster child, a stepchild, a legal ward or a child of a person standing in loco parentis; and
  • An individual who is either under age 18 or age 18 or older and incapable of self-care because of a mental or physical disability at the time FMLA leave is set to begin.

+29 C.F.R. § 825.122 (d). Note that son or daughter has a different meaning when leave is taken to care for a covered servicemember. See Son or Daughter of a Covered Servicemember.

  • Incapable of Self-Care. An individual is incapable of self-care if the individual requires active assistance or supervision to provide daily self-care in three or more of the activities in daily living or instrumental activities of daily living.
    • Activities of Daily Living(ADLs). Adaptive activities such as caring appropriately for one's grooming and hygiene, bathing, dressing and eating qualify as ADLs.
    • Instrumental Activities of Daily Living (IADLs). IADLs include, among other things, cooking, cleaning, shopping, taking public transportation, paying bills, maintaining a residence, using telephones and directories and using a post office. +29 C.F.R. § 825.122 (d)(1).
    • Physical or Mental Disability. A physical or mental impairment that substantially limits one or more major life activities, as defined by regulations under the Americans with Disabilities Act (ADA), constitutes a physical or mental disability. See +29 C.F.R. § 1630.2 (h), (i), and (j). +29 C.F.R. § 825.122 (d)(2). See Employee Management > Disabilities (ADA) > What Is a Disability?.

Intermittent Leave. Intermittent leave is FMLA leave taken in separate blocks of time due to a single qualifying reason for leave. +29 C.F.R. § 825.202 (a). See Administering and Processing Intermittent and Reduced Schedule Leave Requests.

Reduced Schedule Leave. A reduced schedule leave is a leave schedule that reduces an employee's usual number of working hours per workweek or hours per workday. A reduced schedule leave is a change in the employee's schedule for a period of time, normally from full-time to part-time. +29 C.F.R. § 825.202 (a). See Administering and Processing Intermittent and Reduced Schedule Leave Requests.

Key Employee. A key employee is a salaried, eligible employee who is among the highest paid 10 percent of all the employees employed by the employer within 75 miles of the employee's worksite. +29 C.F.R. § 825.217 (a). An employer may deny a key employee reinstatement if doing so would cause substantial and grievous economic injury to the employer's operations. +29 C.F.R. § 825.218 (a). See Reinstating Employees Returning from FMLA Leave.

Substantial and Grievous Economic Injury. To determine whether an employer's operations will suffer substantial and grievous economic injury if a key employee is reinstated, the employer can take into account its ability to replace the key employee on a temporary basis or to temporarily do without the key employee. +29 C.F.R. § 825.218 (b). If permanent replacement is unavoidable, the cost of then reinstating the key employee can be considered in evaluating whether substantial and grievous economic injury will occur. +29 C.F.R. § 825.218 (a). In addition, a substantial and grievous economic injury will occur if reinstatement of a key employee would threaten the economic viability of the employer's operations. Minor and inconvenient costs do not qualify as substantial and grievous economic injury. +29 C.F.R. § 825.218 (c). The substantial and grievous economic injury standard is different from and more stringent that the ADA's undue hardship test. +29 C.F.R. § 825.218 (d). See Reinstating Employees Returning from FMLA Leave; Employee Management > Disabilities (ADA).

Reinstatement. On return from FMLA leave, an employee is entitled to be returned to the same position the employee held when leave began or to an equivalent position with equivalent pay, benefits and other terms and conditions of employment. An employee is entitled to reinstatement even if the employee has been replaced or the employee's position has been restructured to accommodate the employee's absence. +29 C.F.R. § 825.214 . See Reinstating Employees Returning from FMLA Leave.

  • Equivalent Position. An equivalent position is one that is virtually identical to the employee's former position in terms of pay, benefits and working conditions, including privileges, perquisites and status. The position must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility and authority. +29 C.F.R. § 825.215 (a).

Fixed 12-Month Leave Year. A fixed 12-month leave year is one method for calculating the 12-month period in which the 12 weeks of FMLA leave is measured for adoption or foster care, an employee's serious health condition, a family member's serious health condition and a qualifying exigency. A fixed 12-month leave year is often based on an employee's anniversary date, a fiscal year or a year required by state law. +29 C.F.R. § 825.200 (b)(2). See Calculating and Tracking Leave.

Forward Looking Leave Year. The forward looking basis is one method for calculating the 12-month period in which the 12 weeks of FMLA leave is measured for adoption or foster care, an employee's serious health condition, a family member's serious health condition and a qualifying exigency. It is the 12-month period measured forward from the date the employee's first FMLA leave. +29 C.F.R. § 825 (b)(3). See Calculating and Tracking Leave.

Rolling 12-Month Basis. The rolling 12-month basis is one method for calculating the 12-month period in which the 12 weeks of FMLA leave is measured for adoption or foster care, an employee's serious health condition, a family member's serious health condition and a qualifying exigency. The rolling 12-month period is measured backward from the date the employee uses any FMLA leave. +29 C.F.R. § 825.200 (b)(4). See Calculating and Tracking Leave.

Interference. Any violation of the FMLA or its regulations is considered interference with the exercise of rights under the FMLA. Interference includes, among other things:

  • Refusing to authorize FMLA leave;
  • Discouraging an employee from using FMLA leave;
  • Transferring an employee from one site to another to reduce the number of employees at a worksite or to keep worksites below the 50 employee threshold for employee eligibility under the FMLA;
  • Changing the essential functions of a job in order to preclude the taking of leave;
  • Reducing hours available to work in order to avoid employee eligibility; and
  • Discriminating or retaliating against an employee or prospective employee for having exercised rights under the FMLA.

+29 C.F.R. § 825.220 (b). See Actions Prohibited by the FMLA; Employee Management > EEO - Retaliation.

FMLA Definitions, Specific to Military Family Leave

Covered Servicemember. A covered servicemember is:

  • A current member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in an outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness; or
  • A covered veteran who is undergoing medical treatment, recuperation or therapy for a serious injury or illness.

+29 C.F.R. § 825.102 ; +29 C.F.R. § 825.127 (b)(1)-(2).

Covered Veteran. A covered veteran is an individual who was a member of the Armed Forces (including a member of the National Guard or Reserves), who was discharged or released under conditions other than dishonorable at any time during the five-year period prior to the first date the eligible employee takes FMLA leave to care for the veteran. Note:In calculating the five-year period referenced above for an individual who was discharged or released under conditions other than dishonorable prior to March 8, 2013, the period between October 28, 2009 and March 8, 2013 cannot be counted. +29 C.F.R. § 825.102 ; +29 C.F.R. § 825.127 (b)(2).

Military Member. A military member is an employee's spouse, son, daughter or parent who is on covered active duty or call to covered active duty status. +29 C.F.R. § 825.126 (a).

Parent of a Covered Servicemember. A parent of a covered servicemember is a covered servicemember's biological, adoptive, step or foster father or mother, or any other individual who stood in loco parentis to the covered servicemember. Parents-in-law are not covered (but may be under state law). +29 C.F.R. § 825.102 ; +29 C.F.R. § 825.127 (d)(2).

Next of Kin. Unless a covered servicemember has designated in writing the identity of the covered servicemember's next of kin, next of kin is the nearest blood relative other than the covered servicemember's spouse, parent, son or daughter in the following order of priority:

  • Blood relatives who have been granted legal custody of the covered servicemember by court decree or statutory provisions;
  • Brothers and sisters;
  • Grandparents;
  • Aunts and uncles; and
  • First cousins.

When no designation is made, and there are multiple family members with the same level of relationship to the covered servicemember, all family members will be considered next of kin and may take FMLA leave to provide care for the covered servicemember. Those family members may take leave consecutively or simultaneously. If a designation has been made, only the designated individual will be deemed as next of kin and eligible to care for the covered servicemember. +29 C.F.R. § 825.122 (e).

Covered Active Duty or Call to Covered Active Duty Status. Covered active duty or call to covered active duty status occurs when a military member is called to serve in specific capacities. For a member of the Regular Armed Forces, covered active duty or call to covered active duty status means duty during the deployment of the member with the Armed Forces to a foreign country. +29 C.F.R. § 825.126 (a)(1). For a member of a Reserve component of the Armed Forces, covered active duty or call to covered active duty status means duty during the deployment of the member with the Armed Forces to a foreign country under a Federal call or order to active duty in support of a contingency operation. +29 C.F.R. § 825.126 (a)(2). Only federal calls to active duty, not state calls, qualify as covered active duty or calls to covered active duty status under the FMLA. +29 C.F.R. § 825.126 (a)(4).

Serious Injury or Illness. A serious injury or illness is:

  • In the case of a current member of the Armed Forces, including a member of the National Guard or Reserves, an injury or illness incurred or aggravated by the covered servicemember in the line of duty on active duty that may render the servicemember medically unfit to perform the duties of his or her office, grade, rank or rating; and
  • In the case of a covered veteran, an injury or illness that was incurred or aggravated by the covered servicemember in the line of duty on active duty in the Armed Forces and manifested itself before or after the member became a veteran, and is:
    • A continuation of a serious injury or illness that was incurred or aggravated when the covered veteran was a member of the Armed Forces and rendered the servicemember unable to perform the duties of the servicemember's office, grade, rank or rating; or
    • A physical or mental condition for which the covered veteran has received a U.S. Department of Veterans Affairs Service-Related Disability Rating (VASRD) of 50 percent or greater, and such VASRD rating is based, in whole or in part, on the condition precipitating the need for military caregiver leave; or
    • A physical or mental condition that substantially impairs the covered veteran's ability to secure or follow a substantially gainful occupation by reason of a disability or disabilities related to military service, or would do so absent treatment; or
    • An injury, including a psychological injury, on the basis of which the covered veteran has been enrolled in the Department of Veterans Affairs Program of Comprehensive Assistance for Family Caregivers.

+29 C.F.R. § 825.102 ; +29 C.F.R. § 825.127 (c).

Military (Qualifying) Exigency. An eligible employee may take time off for a qualifying exigency when a military member is on covered active duty or call to covered active duty status. +29 C.F.R. § 825.126 (a). A qualifying exigency generally falls into one of nine different categories:

  1. Short-Notice Deployment. Time off is provided to address issues that arise because the military member is notified of an impending call or order to covered active duty seven or less calendar days prior to the deployment date. Leave for this reason can be used for seven calendar days beginning on the date the military member is notified of the deployment on short notice. +29 C.F.R. § 825.126 (b)(1).
  2. Military Events and Related Activities. Time off is provided to attend any official ceremony, program or event sponsored by the military that is related to the covered active duty or call to covered active duty status. Time off to attend family support or assistance programs and informational briefings sponsored or promoted by the military, military service organizations, or the American Red Cross that are related to the covered active duty or call to covered active duty status is also covered. +29 C.F.R. § 825.126 (b)(2).
  3. Childcare and School Activities. Time off is provided when the covered active duty or call to covered active duty status requires:
    • A change in the existing childcare arrangement for a military member's son or daughter;
    • That arrangement for alternative childcare be made;
    • The need to provide childcare on an urgent, immediate need basis;
    • Enrollment in or a transfer to a new school or day care facility;
    • Attendance at meetings, such as disciplinary meetings, parent-teacher conferences or school counselor meetings, with staff at a school or daycare facility. +29 C.F.R. § 825.126 (b)(3).
  4. Financial and Legal Arrangements. Time off is provided to make or update financial or legal arrangements to address the military member's absence. Activities qualifying for time off include preparing and executing financial and health care powers of attorney, transferring bank account signature authority, obtaining military identification cards or preparing or updating a will or living trust. An eligible employee may also take time off to act as the military member's representative before a federal, state, or local agency for obtaining, arranging or appealing military service benefits while the military member is on covered active duty or call to covered active duty status and for up to 90 days following the termination of active duty status. +29 C.F.R. § 825.126 (b)(4).
  5. Counseling. Time off is provided to attend counseling provided for the military member or the son or daughter of the military member, so long as the need for counseling arises from the military member's covered active duty or call to covered active duty status. +29 C.F.R. § 825.126 (b)(5).
  6. Rest and Recuperation. Time off of up to 15 days is provided to spend time with a military member each time the military member is on short-term, temporary, rest and recuperation leave during deployment. +29 C.F.R. § 825.126 (b)(6).
  7. Post-Deployment Activities. Time off up to 90 days following the termination of covered active duty status is permitted to attend arrival ceremonies, reintegration briefings and events, and any other official ceremony or program sponsored by the military. Additionally, an employee may also take time off to address issues arising from the death of a military member while on covered active duty status. This includes meeting and recovering the body and making funeral arrangements. +29 C.F.R. § 825.126 (b)(7).
  8. Parental Care. Time off to provide the following types of parental care to the parent of a military member who is incapable of self-care:
    • To arrange for alternative care for the parent and the covered active duty status or call to covered active duty status of the military member necessitates a change in the existing care arrangement;
    • To provide care for the parent on an emergency basis (but not on a routine, regular or everyday basis) where the need for care arises out of the covered active duty status or call to covered active duty status of the military member;
    • To admit or transfer the parent to a care facility when admittance or transfer is prompted by the covered active duty status of the military member; or
    • To attend meetings (not including routine or regular meetings) with staff at a care facility where the need for such meetings arises out of the covered active duty status or call to covered active duty status of the military member. +29 C.F.R. § 825.126 (b)(8)
  9. Additional Activities. Time off is provided to address other events which arise out of the military member's covered active duty or call to covered active duty status if the employer and employee agree that such leave qualifies as an exigency and agree to the timing and duration of the leave. +29 C.F.R. § 825.126 (b)(9).

See Determining Employee Eligibility for FMLA Leave.

Single 12-Month Period. An eligible employee is entitled to 26 workweeks of leave to care for a covered servicemember with a serious injury or illness during a single 12-month period. A single 12-month period begins on the first day the eligible employee takes FMLA leave to care for a covered servicemember and ends 12 months after that date. +29 C.F.R. § 825.127 (e)(1).

Son or Daughter on Active Duty or Call to Active Duty Status. A son or daughter on covered active duty or call to covered active duty status is an employee's biological, adopted or foster child, stepchild, legal ward or a child for whom the employee stood in loco parentis that is on covered active duty or call to covered active duty status. The son or daughter may be of any age. +29 C.F.R. § 825.122 (h).

Son or Daughter of a Covered Servicemember. A son or daughter of a covered servicemember is the covered servicemember's biological, adopted, foster child, stepchild, legal ward or a child for whom the covered servicemember stood in loco parentis. The son or daughter may be of any age. +29 C.F.R. § 825.122 (i). See Determining Employee Eligibility for FMLA Leave.

Paid Time Off Benefits. An employer often provides paid time off fringe benefits to employees. These paid time off fringe benefits are to be used during periods in which an employee is not working and is taking time off from work. As used in this section, paid time off benefits refers to employer provided benefits such as vacation pay, sick pay, paid personal days, paid floating holidays, PTO, compensatory time off or similar benefits.

Paid Disability Benefits. An employer often maintains benefits or insurance plans that pay employees while they are unable to work due to an illness or injury. These benefits or insurance plans may be required by state law or may be provided voluntarily by an employer as a fringe benefit. Most of these benefits or insurance plans cover the employee's own illness or injury. Examples of these benefits include:

  • Workers' compensation benefits;
  • Short-term disability (STD) benefits;
  • Long-term disability (LTD) benefits;
  • Salary continuation; or
  • State-provided disability insurance benefits.

In addition, some employers may also provide benefit or insurance plans that pay an employee while taking leave to care for an injured or ill family member. As used in this section, paid disability benefits refer to these employer- and state-provided benefits or insurance plans. Further, paid disability benefits refer to benefits or insurance plans that cover either employee illness or injury or time off taken by an employee to care for an ill or injured family member.

Preparing for FMLA Requests

General Notice Posting Requirements

The FMLA requires that a covered employer post a general notice explaining the FMLA's rights and responsibilities in order to provide information to employees and applicants of the FMLA's existence, even if no employee or applicant is eligible for the FMLA. +29 C.F.R. § 825.300 (a). The notice must contain excerpts from, or summaries of, the significant provisions of the FMLA, as listed in the DOL's Wage and Hour Division's WHD Publication 1420.

If a significant portion of the employer's workforce is not literate in English, the employer needs to ensure the updated notice is translated into the language(s) in which its employees are literate. An employer should also check that its employee handbooks (including electronic documents) or other written documentation provided to employees concerning benefits and leave rights to make sure they have the updated notice. If an employer does not have an employee handbook, a copy of the revised notice should be provided to all new employees upon hire and to all employees requesting FMLA leave.

A covered employer may choose either to use WHD's Publication 1420 or to summarize the relevant provisions contained in Publication 1420. In addition, if a covered employer employs any employees who are eligible for the FMLA, that employer must directly provide all employees with the general notice or at least the information contained within WHD's Publication 1420. See Content of Notice; Distribution and Location of General Notice.

Content of Notice

The FMLA requires that the general notice explain the pertinent provisions of the FMLA and include information on filing complaints with the DOL's WHD for violations of the Act. The notice is usually in the form of a poster. The notice and its text must be fully legible and contain text large enough to be easily read by employees and applicants.

An employer can choose to use WHD Publication 1420 to satisfy its general notice obligation - or the employer can satisfy its notice obligation by including all of WHD Publication 1420's information in another document.

WHD Publication 1420 covers the following subject areas:

  • Basic leave entitlement, i.e., nonmilitary related reasons for taking FMLA leave;
  • Military family leave entitlements;
  • Benefits and protections;
  • Eligibility requirements (including the special hours of service eligibility for airline flight crews employees);
  • Definition of serious health condition;
  • Definition of a serious injury or illness;
  • Use of leave, i.e., availability of continuous, intermittent and reduced scheduled leave is available;
  • Substitution of paid leave for unpaid leave;
  • Employee responsibilities, i.e., notice, certification, recertification, reason for leave;
  • Employer responsibilities, i.e., notice of eligibility or ineligibility, designation of leave, amount of leave;
  • Unlawful acts by an employer; and
  • Enforcement, i.e., how an employee may make a complaint.

Language Requirements

If a significant portion of the employer's workforce is not literate in English, the employer must provide the general notice in the language(s) in which the employees are literate. The FMLA regulations do not define what constitutes a significant portion of the workforce, nor does case law or the DOL provide any guidance on what percentage of the workforce would be significant enough to require the general notice to be provided in various languages.

The DOL has provided employers with an English and Spanish version of the notice.

Distribution and Location of General Notice

The FMLA's general posting requirement has two distribution requirements:

  1. Every covered employer must post the notice, and keep it posted, on its premises in conspicuous places where employees are employed, so that applicants and employees may see it; and
  2. If any of its employees are eligible for FMLA leave, the employer must also distribute the general notice directly to its employees.

See How Often Notice Must Be Provided. To comply with the first requirement (posting in conspicuous places), an employer may wish to consider posting the notice in any of the following areas:

  • Employee lunch or break rooms;
  • Any bulletin board used for employer notices to employees;
  • Employee restrooms;
  • HR department;
  • Payroll department;
  • Location where employees pick up paychecks; and
  • Employer's lobby.

These areas that are routinely frequented by employees would likely be viewed as conspicuous to employees. Similarly, if an applicant is taken into any of these areas, the notice would also be visible to an applicant.

For the second requirement, an employer may include the notice in an employee handbook or another written document provided to employees concerning employee benefits and leave rights. If no such written materials exist, notice may also be accomplished by distributing a copy of WHD Publication 1420 (or its equivalent) to each new employee upon hiring. Most employers maintain an FMLA policy in an employee handbook that includes not only information about the employer's specific practices related to the FMLA, but also employer and employee rights and responsibilities under the Act. Alternatively, an employer may provide the general notice as an addendum to an employee handbook and/or in orientation materials given to new employees.

Electronic posting of the general notice satisfies the posting requirement, so long as the electronic posting meets all of the other general posting requirements. Electronic posting on an employer's external website may assist the employer in showing that the notice is readily available to applicants. Likewise, electronic posting on an employer's internal website or intranet may help demonstrate that the notice is readily available to employees. If, however, any employees or applicants do not readily have computer access or the ability to access electronic information, the employer will still need to post the notice on its premises in areas conspicuous to employees and applicants.

How Often Notice Must Be Provided

The FMLA's general notice requirement is ongoing. Regardless of whether a covered employer's employees are eligible for leave, the employer must post the notice for employees and applicants to see and must also provide eligible employees with the notice - whether through the employee handbook or other materials provided to employees. Although the regulations do not specifically state an annual distribution requirement, the comments to the regulations reference annual distribution of the general notice directly to employees. See General Notice Posting Requirements, +73 Fed. Reg. 67,990 , +73 Fed. Reg. 67,991 (Nov. 17, 2008).

An employer should consider providing the general notice to employees on an annual basis and/or each time an employee requests a leave of absence. Once an employee provides information demonstrating a need for FMLA leave, the employer must also provide the employee with more specific notice about eligibility and employer and employee rights and responsibilities under the Act. See Designating, Calculating and Tracking Leave Requests.

Penalties for Noncompliance

A covered employer that willfully fails to post the DOL's required notice can be assessed a civil penalty of up to $169 for each separate posting failure. +29 CFR § 825.300 (a)(1). In addition, failure to follow the general notice requirement may be considered as the employer's attempt to interfere with an employee's ability or right to take FMLA leave by not letting the employee know that the Act provides an employee with certain rights. +29 C.F.R. § 825.300 (e). If an employer has interfered with an employee's leave rights, the employer may be required to:

  • Pay for an employee's actual monetary losses as a direct result of the Act's violation;
  • Reinstate the employee;
  • Promote the employee; or
  • Provide any other relief appropriate and tailored to the situation.

Creating an FMLA Policy and/or Other Written Guidance

An employer should consider creating a customized FMLA policy that summarizes employee leave rights as well as the employer's specific procedures and requirements regarding employee use of FMLA leave.

Required Employee Notice

As noted above, an employer covered by the FMLA must provide employees with all of the information set forth in the DOL's general notice posting (Employee Rights and Responsibilities Under the Family and Medical Leave Act Poster) in addition to posting the information in conspicuous places in the workplace. See General Notice Posting Requirements. If the employer maintains an employee handbook or provides employees with other written guidance discussing employee benefits or leave rights, this information must be included in such a handbook or written guidance. +29 C.F.R. § 825.300 (a).

Separate FMLA Policy

Most employers prefer not to allow the general notice posting to serve as their FMLA policy, since it does not summarize the aspects of FMLA administration that an employer can (and, in many cases, should) take the opportunity to customize. Also, employers often are averse to spelling out in their own policy materials the posting's information explaining that the FMLA prohibits employer interference and discrimination and that employees may file complaints with the DOL or pursue private lawsuits. In such cases, an employer may opt to reproduce a copy of the posting as an addendum to its FMLA policy.

In light of these facts, an employer should strongly consider including in its employee handbooks or other written benefit/leave guidance a detailed FMLA policy that includes, at a minimum, the following components, and attaches the general notice posting as an addendum:

  • The particular 12-month leave year that the employer has selected for measuring employees' use of their FMLA leave entitlement;
  • How the employer will handle employees in relationships (e.g., common law marriages, domestic partnerships) that are not recognized as legal marriages creating a spousal relationship;
  • Employees' obligation to notify the employer of the need for FMLA leave (including both the expected manner and timing of notice), and the potential consequences of failing to satisfy such obligations;
  • The minimum increment of time by which employee use of FMLA leave will be tracked;
  • The employer's policy regarding limits on the cumulative amount of certain types of FMLA leave that may be used by spouses who both work for the employer;
  • Statement that other applicable leaves to which the employee may be entitled (such as state FMLA leaves) will be exhausted concurrently with FMLA leave;
  • Employees' obligation to use various types of paid leave concurrently with FMLA leave;
  • Statement that leave for the birth, placement, foster care or adoption of a child may not be taken on an intermittent basis and must be used within one year of the birth or placement of the child; and
  • Benefit accrual policies applicable to employees while on FMLA leave.

Other provisions an employer should consider including in an FMLA policy (some of which are also covered in the FMLA general notice poster) include:

  • Criteria for employee FMLA eligibility;
  • Description of the five categories of FMLA leave;
  • Summary of employees' rights to job restoration and maintenance of benefits;
  • Definitions of technical terms used in the FMLA policy;
  • Explanation of the amount of FMLA leave available for the various leave categories;
  • Specific requirements for, and limits on, intermittent and reduced schedule FMLA leave;
  • Explanation of employees' certification obligations with regard to various categories of FMLA leave;
  • Reference to the second/third opinion process;
  • Explanation of the recertification process and the grounds upon which recertification may be sought, including the employer's receipt of information that casts doubt on the employee's stated need for FMLA leave;
  • Statement that employees may be entitled to additional leave, beyond their FMLA entitlement, as a reasonable accommodation (see The Bermuda Triangle Has Expanded: The FMLA's Intersection With the ADA, Workers' Compensation and More - Legal Insight and Employee Management > Disabilities (ADA) > ADA Interplay);
  • Prohibition on moonlighting (working another job) while on leave, if applicable; and
  • Statement that employees who fraudulently obtain family and medical leave are not protected by the FMLA's job restoration or maintenance of health benefits provisions.

See Family and Medical Leave Handbook Statement: Federal; Family and Medical Leave Policy.

Moonlighting Policies

As noted above, an employer should consider referencing in its FMLA policy its policy prohibiting employees from working for another employer while on leave. See Curbing FMLA Fraud and Abuse. In order for such a policy to be permitted under the FMLA, the employer may not treat those on FMLA leave differently than those who are on an equivalent leave status (such as PTO) for a non-FMLA-qualifying reason.

In addition, while the FMLA may permit moonlighting policies, there are some state laws that effectively prohibit the application of moonlighting policies in certain contexts by making it unlawful for an employer to inhibit an employee's lawful off-duty conduct. As a result, an employer should exercise caution when considering the adoption and implementation of a moonlighting policy to an employee on FMLA leave.

Inflexible Leave Policies

In recent years, the Equal Employment Opportunity Commission (EEOC) has sued numerous employers across the country alleging that the employers' leave policies violate the Americans with Disabilities Act (ADA). See The Bermuda Triangle Has Expanded: The FMLA's Intersection With the ADA, Workers' Compensation and More - Legal Insight; Employee Management > Disabilities (ADA) > ADA Interplay.

Among the policies that the EEOC is targeting are those that require termination of employees who previously qualified for leave under the FMLA but whose medical conditions prevent them from returning to work when they exhaust their 12-week leave entitlement. The EEOC's theory in these lawsuits is that employers are obligated to engage in the ADA's interactive process with employees in such situations in order to determine whether or not the employee has a disability and may be entitled to a reasonable accommodation (including extended leave) that would enable the employee to perform his or her essential job functions. An employer may consider providing additional unpaid leave as a reasonable accommodation, unless doing so would place an undue hardship on the employer. See Determine if a Request for Leave Qualifies as an ADA Accommodation; Disabilities (ADA): Federal > Leave or Attendance Policies.

In light of these developments, an employer should:

  • Avoid including in its FMLA policy any language indicating that employees who fail to return from FMLA leave will be subject to automatic termination;
  • Consider including in its FMLA policy an affirmative statement that employees may be entitled to additional leave, beyond their FMLA entitlement, as a reasonable accommodation; and
  • Avoid maintaining a stand-alone inflexible leave policy, such as a policy providing that employees are terminated if they are absent for a set amount of time (such as a policy providing for immediate termination of employees who are absent for any reason for more than six months).

FMLA Employer Coverage

Before an employee requests FMLA leave, an employer should know whether it is covered by the FMLA. For a large private employer, public agency and school, the answer to this question is generally easy to answer. For a private employer that is smaller in size or that may be involved in the business of other employers, the answer is often more difficult to determine and depends on a number of factors related to:

  • The number of employees employed in total;
  • The number of employees employed for periods of time;
  • Where employees are located;
  • The employer's relationship with other employers; and
  • Whether the employer has assumed certain legal obligations on behalf of another employer and that other employer's employees.

Covered Employers

A covered employer under the FMLA includes the following:

  • A private employer that has employed 50 or more employees for an adequate amount of time;
  • A public agency, regardless of the number of employees employed; and
  • A public or private elementary or secondary school, regardless of the number of employees employed.

+29 C.F.R. § 825.104 (a). In addition, any person acting directly or indirectly in the interest of one of these covered employers to any of the employees of that employer is also considered to fall within the definition of a covered employer. Such an individual may also be held individually liable for FMLA violations. +29 C.F.R. § 825.104 (d). See Persons Acting in Interest of Covered Employer.

Practical Example

George is a corporate officer for Acme Telephone Co. As a corporate officer, George acts directly, as well as indirectly, in the interests of Acme Telephone by supervising employee performance and attendance, among other things. George takes into account an employee's FMLA absences when supervising and evaluating performance and attendance. As a corporate officer, George may be considered to fall under the definition of covered employer and may be held individually liable for FMLA violations.

Private Employers

A private employer is covered by the FMLA if it:

  • Is engaged in commerce or in any industry or activity affecting commerce; and
  • Has employed 50 or more employees for each working day during at least 20 calendar workweeks in the current or preceding calendar year.

+29 C.F.R. § 825.104 (a); +29 C.F.R. § 825.105 (e).

Engagement in Commerce

For FMLA purposes, an employer is automatically considered to be engaged in commerce or in an industry or activity affecting commerce if they meet the 50-employee threshold for employer coverage. Therefore, while the FMLA's regulations define the terms commerce and industry affecting commerce, an employer does not need to understand such definitions in order to determine whether or not they are covered by the FMLA. +29 C.F.R. § 825.104 (b).

Number of Employees - Who Should Be Counted

Any individual that the employer suffers or permits to work should be counted for purposes of the 50-employee threshold for employer coverage. The employer's full-time, part-time and seasonal employees are counted for purposes of the 50-employee threshold. +29 C.F.R. § 825.105 (a).

Practical Example

Acme Tax Preparers, a tax preparation company, normally has 30 employees. However, each year during tax season, Acme hires 25 additional employees to work from January to June to assist with preparing and filing tax returns for Acme's clients. Thus, because Acme has a workforce of 50 or more employees for at least 20 weeks of each calendar year, Acme would meet the 50-employee threshold for FMLA coverage.

Any employee who appears on the employer's payroll for a particular pay period is considered to be employed each working day of the applicable calendar week(s) and must be counted even if he or she does not receive compensation for the calendar week(s), so long as the employer has a reasonable expectation that the employee will later return to active employment. +29 C.F.R. § 825.105 (b); +29 C.F.R. § 825.105 (c). Thus, an employee who is on a temporary, unpaid leave of absence (e.g., for disciplinary suspension or FMLA leave) must be counted in determining whether the employer meets the 50-employee minimum.

Further, an employee who starts work for an employer after the first working day of a calendar week or who terminates employment before the last working day of a calendar week should not be counted as being employed during that particular calendar week. +29 C.F.R. § 825.105 (d).

Practical Example

This January, Acme Tax Preparers hired 20 additional temporary employees for tax season rather than its usual 25. One temporary employee then decided to quit working on the Tuesday of the 20th calendar week of the year. Another employee took a week-long FMLA leave of absence to have surgery. Acme must count the employee on FMLA leave in calculating the number of employees in its workforce. However, it cannot count the final calendar week of the temporary employee's employment, because the employee was terminated before the last working day of that calendar week. Thus, because Acme may only count itself as having 49 employees for at least 20 weeks of the year, Acme would not meet the 50-employee threshold for FMLA coverage.

Independent contractors retained by the employer are not counted. In general, independent contractors are individuals who are engaged in a business of his or her own while performing services for the employer. In contrast, employees are those individuals who follow the usual path of an employee and are dependent on the business of the employer. +29 C.F.R. § 825.105 (a).

Number of Employees - Calculating Number of Calendar Workweeks

In order to be covered by the FMLA, the employer must employ 50 or more employees for each working day during at least 20 calendar workweeks in the current or preceding calendar year. The 20 calendar workweeks can be consecutive or nonconsecutive. +29 C.F.R. § 825.105 (e); +29 C.F.R. § 825.105 (f).

Location of Employees

For purposes of determining whether or not the employer meets the 50-employee threshold for employer coverage, an employer should only count employees who are employed in the US, the District of Columbia or any US territory or possession. +29 C.F.R. § 825.105 (b).

Public Agency Employers

Public agencies are covered by the FMLA regardless of the total number of employees they employ (i.e., they are not subject to the 50-employee threshold for employer coverage that is applicable to private employers). +29 C.F.R. § 825.108 (d).

Public agencies include:

  • The US government;
  • The government of a state or a political subdivision of a state;
  • A US agency, a state or a political subdivision of a state; and
  • Any interstate governmental agency.

For these purposes, a state includes any US state, the District of Columbia or any US territory or possession. +29 C.F.R. § 825.108 (a).

Schools

The FMLA also covers local educational agencies regardless of the total number of employees they employ (i.e., they are not subject to the 50-employee threshold for employer coverage that is applicable to private employers). +29 C.F.R. § 825.600 (b).

Such agencies include:

  • Public school boards;
  • Public and private elementary schools; and
  • Public and private secondary schools.

Local educational agencies do not include other kinds of educational institutions, such as colleges and universities, trade schools and preschools. The FMLA has special rules that apply to employees of local educational agencies. These rules affect:

  • The use of intermittent or reduced schedule leave near the end of an academic term; and
  • Restoration to an equivalent position.

+29 C.F.R. § 825.600 ; +29 C.F.R. § 825.601 ; +29 C.F.R. § 825.602 ; +29 C.F.R. § 825.603 ; +29 C.F.R. § 825.604 .

Persons Acting in Interest of Covered Employer

Unlike many other employment related laws, an employer under the FMLA includes any person who acts directly or indirectly in the interest of an otherwise covered employer to any of the employer's employees. Thus, individuals such as corporate officers ''acting in the interest of an employer'' may be held individually liable for FMLA violations. +29 C.F.R. § 825.104(d).

Joint Employer, Integrated Employer and Successor Employer Coverage Issues

Joint Employers

If two or more employers exercise some control over the work or working conditions of an employee, the employers may be considered joint employers under the FMLA. The businesses do not need to have the same owners, managers or facilities to be considered joint employers. +29 C.F.R. § 825.106(a). The analysis of joint employers under the FMLA follows the FLSA analysis.

A joint employment situation generally exists if, based on a review of the entire employment relationship, an employee's work benefits two or more employers or an employee works at different times during the week for two or more employers, and one of the following situations exists:

  1. There is an arrangement between employers to share an employee's services or to interchange employees.
  2. One employer acts directly or indirectly in the interest of the other employer in relation to the employee.
  3. The employers are in some way associated together with regard to the employee's employment and share direct or indirect control of the employee.

+29 C.F.R. § 825.106 (a)(1); +29 C.F.R. § 825.106 (3); +29 C.F.R. § 825.106 (b)(1).

Joint employment situations most commonly arise when an employer utilizes employees from a temporary placement agency. Joint employment relationships also can arise when a company (often known as a professional employer organization or PEO) that contracts with other companies to perform administrative functions (such as those relating to payroll and benefits) goes beyond merely providing administrative functions and instead has the right to hire, fire, assign or direct and control the other company's employees. +29 C.F.R. § 825.106 (b)(2).

If multiple employers are considered joint employers, the employers' jointly employed employees must be counted in determining whether or not each of the entities meets the 50-employee threshold for FMLA coverage, regardless of whether the jointly employed employees are maintained on one employer's payroll. +29 C.F.R. § 825.106 (d).

Practical Example

ABC operates a call center and employs 40 permanent employees for at least a full 20 calendar workweeks during the current year, but has no other facilities. At the same time, ABC leases 20 workers from XYZ Temporary Agency to work in the call center for at least a full 20 calendar workweeks during the same year. ABC directs the day to day work of these XYZ temporary employees. Similarly, XYZ indirectly controls the temporary employees, as they are bound to follow XYZ's policies. As a result, ABC and XYZ are likely joint employers under the FMLA because the employees associated with XYZ Temporary Agency are directly or indirectly controlled by both ABC and XYZ.

ABC becomes a covered employer under the Act because the combined total of ABC's own employees and the employees it jointly employs with XYZ exceeds the 50-employee threshold during at least 20 calendar workweeks of the current year. However, while XYZ is likely a joint employer of the 20 workers assigned to ABC, ABC's 40 permanent employees are not counted when determining whether or not XYZ meets the 50-employee threshold, so long as XYZ does not share those employees' services, does not act on behalf of ABC with regard to those employees, or does not share control over those employees. Therefore, if XYZ employs fewer than 30 additional employees (including employees that it jointly employs with companies other than ABC), XYZ will not meet the 50-employee threshold.

Integrated Employers

Separate entities are considered the same employer (also known as an integrated employer) under the FMLA if they meet the integrated employer test. This test involves analyzing four different factors. No single factor is determinative; instead, the entire relationship is reviewed in its totality. The factors to be considered are as follows:

  1. Common management;
  2. Interrelation between operations;
  3. Centralized control of labor relations; and
  4. Degree of common ownership/financial control.

+29 C.F.R. § 825.104 (c)(2). If separate entities are considered an integrated employer, the employees of these entities are counted in determining whether or not the 50-employee threshold is met.

Successor Employers

An employer under the FMLA also includes entities that are deemed successors-in-interest to a covered employer. The following factors must be considered, although the entire circumstances must be viewed in their totality and no single factor is determinative:

  • Substantial continuity of business operations;
  • Use of the same plant;
  • Continuity of the workforce;
  • Similarity of jobs and working conditions;
  • Similarity of supervisory personnel;
  • Similarity in machinery, equipment and production methods;
  • Similarity of products or services; and
  • Ability of the predecessor to provide the relief sought by the employee under FMLA.

+29 C.F.R. § 825.107 .

If an employer is a successor, it has obligations under the FMLA to provide leave for eligible employees who had provided appropriate notice to the predecessor company. The successor also has an obligation to continue leave begun while the employee was employed by the predecessor (including maintenance of health benefits and right of job restoration). This is required even if the successor does not itself meet the FMLA's coverage criteria (such as the 50-employee threshold). +29 C.F.R. § 825.107 (c).

Practical Example

Acme Inc., a large manufacturing company with several facilities and thousands of employees, sells one of its small facilities with 25 employees to Upstart Inc., a new company with five employees. As part of the acquisition, Upstart hires all 25 employees at the facility. Upstart continues the same manufacturing business in which Acme engaged at the facility, and the former Acme employees maintain substantially the same jobs they had with Acme. Upstart is likely a successor employer under the FMLA.

Arthur, a former Acme employee who is hired by Upstart in connection with the facility acquisition, requested FMLA leave from Acme two days before the acquisition. As a result of Upstart's status as a successor, despite the fact that the company has not itself met the 50-employee threshold for employer coverage under the Act during the current or previous calendar year, it is nonetheless obligated to grant FMLA leave to Arthur, assuming that he provides any required certification.

Receiving and Reviewing Employee Requests for FMLA Leave

Employee Notice of Need for FMLA Leave

An employee can provide his or her employer with notice of the need for FMLA leave in many ways. At a minimum, the employee must provide verbal notice making the employer aware that the employee needs time off for a FMLA qualifying reason, as well as the anticipated time of and duration of the leave. No two situations will be exactly the same, but examples of information that can trigger notice to the employer include, but are not limited to:

  • The employee is unable to perform job functions because of a medical condition;
  • The employee is pregnant;
  • The employee has been hospitalized overnight;
  • The employee or the employee's family member is under a health care provider's continuing care;
  • A military member is on covered active duty or call to covered active duty status (or has been notified of an impending call or order to covered active duty) and the employee needs to attend to a reason that would constitute a qualifying exigency;
  • A family member has a medical condition and cannot perform daily activities; and
  • A family member is a covered servicemember with a serious injury or illness.

+29 C.F.R. § 825.302 (c); +29 C.F.R. § 825.303 (b).

Regardless of whether FMLA leave is continuous, intermittent or on a reduced schedule basis an employee only needs to provide notice of their intent to take leave one time. However, an employee must notify his or her employer, as soon as practicable if:

  • The dates of scheduled leave change;
  • The dates of the scheduled leave are extended, or
  • The dates of the scheduled leave become known later.

+29 C.F.R. § 825.302 (a); +29 C.F.R. § 825.303 (b). In addition, if an employee has taken FMLA leave for more than one reason, the employer may need to ask further questions to determine which qualifying reason has triggered the need for leave. +29 C.F.R. § 825.302 (c).

Although an employee does not need to explicitly use the term FMLA to request FMLA leave, or even mention the FMLA, an employer may require an employee to use the employer's customary and usual notice and other procedural requirements to request leave. +29 C.F.R. § 825.302 (d); +29 C.F.R. § 825.303 (c).For example, an employer may require the employee to:

  • Contact a designated individual to provide notice of the leave;
  • Call a designated number or hotline to provide notice of the leave;
  • Provide written notice of intent to take leave; or
  • Follow call-in procedures or other policies or practices set forth in an employee handbook.

The employee's failure to follow the employer's procedure may be viewed as an employee's failure to provide the necessary notice of the need for FMLA leave. The only circumstances under which an employee may be excused from complying with the employer's notice and procedural requirements are where unusual circumstances prevent the employee from complying with the requirements or where the employer's timing requirements are more rigorous than the FMLA's timing requirements. +29 C.F.R. § 825.302 (d); +29 C.F.R. § 825.303 (c).

Unusual circumstances might include instances where the employee is unable to leave a message with the designated person or where the employee is incapacitated and has nobody else who can contact the employer. See Timing of Employee's Notice of Need for FMLA Leave; See also Fact Sheet 28E: Employee Notice Requirements Under the FMLA.

Practical Example

Zelda works for Acme Co., which has a call-in procedure for reporting unforeseen absences within one hour of the employee's start time. On her way to work, Zelda is in a car accident and is knocked unconscious. An ambulance immediately transports Zelda to the hospital where she remains unconscious. The hospital has no record of her employer and no record of any family or emergency contact for her.

Under the circumstances, Zelda is unable to contact Acme Co. to explain her absence from work. Further, the hospital and/or any emergency contact are also unable to contact Acme Co. on Zelda's behalf. Given the unusual situation, Zelda will be excused from complying with Acme Co.'s usual and customary call-in procedure to provide notice of her absence.

What Constitutes an Employee's Notice of Need for FMLA Leave

An employee need not explicitly request "FMLA leave" or ask for FMLA protection for the leave to be protected under the FMLA. +29 C.F.R. § 825.302 (c); +29 C.F.R. § 825.303 (b). The employer need only receive enough information from the employee, the employee's family member or the employee's other designated representative to determine if the time off qualifies as FMLA leave.

For medical-related situations, an employee (or the appropriate family member or designated representative) only needs to mention that the requested time off is due to medical reasons. For qualifying exigencies, the employee (or the appropriate family member or designated representative) only need mention that:

  • A military member is on covered active duty or call to covered active duty status; and
  • The requested leave is for a reason that is considered a qualifying exigency.

See Military Leaves.

Once the employee provides the minimal information required, the employer will need to ask further questions to see if the time off may qualify as FMLA leave. +29 C.F.R. § 825.302 (c); +29 C.F.R. § 825.303 (b). If the employee calls in "sick" or says the time off is for "personal reasons," the employer need not ask further questions to inquire whether the time off is FMLA protected. +29 C.F.R. § 825.302 (c); +29 C.F.R. § 825.303 (b).

An employer's additional questions designed to determine whether notice has been given by the employee may include requesting medical certification or requesting information about a qualifying exigency to support the leave request. The questions an employer may wish to ask include:

  • How long the employee will or may be absent;
  • Whether the employee is unable to perform job functions;
  • Whether the employee has seen a health care provider;
  • Whether the employee plans to see a health care provider and when that will occur;
  • Did the employee previously plan to receive medical treatment or to take time off related to the qualifying exigency;
  • If the employer has follow up questions, will the employee be available to respond to those questions; and/or
  • The specific event or reason for the leave if the time off is for a qualifying exigency. See Military Leaves.

Practical Example

John calls his employer, Acme 123, to say that he will be absent from work. During the call, he never mentions that he wishes to take FMLA leave. However, John does mention that his doctor recommends he stay home due to shortness of breath and chest pains. John has provided enough information for Acme 123 to be on notice that John's time off from work may qualify as FMLA leave.

Practical Example

Susan has Crohn's disease for which she receives regular medical treatment and for which she has previously taken leave. She experiences a flare up in her symptoms. As a result, Susan calls in sick for two days to her employer, Acme Construction. When she calls in, Susan does not mention that she is absent due to her Crohn's disease; rather, she mentions only that she is "sick." Absent providing any other information, Susan likely has not provided enough notice to Acme Construction that her need for time off may qualify as FMLA leave.

The employer's policies and procedures may require an employee to provide notice to a designated person. +29 C.F.R. § 825.302 (d); +29 C.F.R. § 825.303 (c). Nevertheless, often, an employee will mention the need for time off to a direct supervisor, rather than to the employer representative designated to receive leave requests. Such conversations could still be considered sufficient to put the employer on notice of the employee's need for leave, as any person who acts directly or indirectly in the employer's interest is considered to be the employer. +29 C.F.R. § 825.104 (d). Individuals who act in an employer's interests may include:

  • Corporate officers;
  • Managers or supervisors; and
  • HR professionals.

Because the employer and its representatives are responsible for designating FMLA leave once notice is provided, an employer should train its representatives to spot issues that could be considered FMLA leave requests. Similarly, an employer should also train its representatives on what steps to take once an employee mentions the need for time off from work due to a qualifying reason. See FMLA - Supervisor Briefing.

Employee's Duty to Cooperate

The employee must cooperate with the employer's reasonable inquiries designed to determine whether the time off potentially qualifies as FMLA leave. +29 C.F.R. § 825.302 (c); +29 C.F.R. § 825.303 (b). If the employee fails to do so, the employer may be unable to conclude that the leave qualifies for FMLA protection. In such a case, the FMLA leave request may be denied. Cooperation with the employer's reasonable inquiries may include, among other things, completing the employer's required leave request form. A leave request form can help the employer determine:

  • The reason(s) for which leave is requested;
  • The leave's duration; and
  • The leave's anticipated start date.

+29 C.F.R. § 825.302 (d); +29 C.F.R. § 825.303 (c). See also Request for Family and Medical Leave Form. If the employee fails to complete the required paperwork to request a leave, the employer may consider the employee to have provided inadequate notice.

Practical Example

Mike calls in to report his absence from work for four consecutive days at Acme Co. Store because his son is injured. When he returns to work, Mike fails to complete Acme Co. Store's leave of absence paperwork, as required by Acme Co.'s internal policies and procedures. Mike has failed to give adequate notice of his need for FMLA leave because he failed to complete the required paperwork.

If an employee is unable to personally provide notice to the employer, the employee's spokesperson may provide notice to the employer of the unforeseeable leave. The employee's spokesperson is generally the employee's spouse, another adult family member or another responsible party. +29 C.F.R. § 825.303 (a).

Practical Example

Jared's child has severe allergies. When the child must be admitted to the emergency room to be treated for an allergic reaction, Jared is not required to leave the emergency room to call his employer and to report his absence. Instead, Jared may ask his spouse or another adult family member to report his absence. Alternatively, if no family member is available to report Jared's absence, Jared must follow his employer's call-in procedure as soon as he is able to ensure his child has received the treatment she needs.

Once notice is provided (and it is certified as an FMLA qualifying reason), the employee is not required to provide notice again. However, if an employee needs FMLA leave for a reason for which the employer previously provided an FMLA leave, the employee must specifically refer either to the qualifying reason for the leave or the need for FMLA leave. +29 C.F.R. § 825.302 (c); +29 C.F.R. § 825.303 (b).

Practical Example

Steve has been employed by Acme Electric for three years. Last year, Steve took time off from work to receive medical treatment for his arthritis. Recently, Steve has mentioned that he will need to take time off again to treat his arthritis. Because he mentioned that he will need treatment again for the same condition, Steve has provided enough notice to Acme Electric of his need for FMLA leave.

Timing of Employee's Notice of Need for FMLA Leave

FMLA leave requests fall into two temporal categories. The first category encompasses leave requests for foreseeable FMLA leave. These leave requests are generally those that are planned or known to an employee in advance of the need for time off. The second category is based upon situations that cannot be predicted. This second category is known as unforeseeable FMLA leave.

Notice of Foreseeable FMLA Leave

The need for FMLA leave will be known to an employee under certain circumstances. For example, an employee who is adopting a child will usually know the date the child is expected to be placed in the employee's home. Similarly, if medical treatment is previously scheduled or planned by the employee or the employee's family member or covered servicemember, the employee will know the date on which the employee will need to be absent for the treatment. If the need for leave is known in advance of the leave, the leave is considered foreseeable FMLA leave.

When the need for leave is foreseeable, an employee must provide the employer with at least 30 days' advance notice before leave begins when the leave is due to:

  • The birth of a child;
  • The placement of a child through adoption or foster care;
  • The planned medical treatment for a the serious health condition of an employee or an employee's family member; or
  • The planned medical treatment for a covered servicemember with a serious injury or illness.

+29 C.F.R. § 825.302 (a). If an employee fails to provide at least 30 days' notice when leave is foreseeable, the employer may request information regarding why 30 days' notice was not provided. The employee must explain the reasons why advance notice of 30 days was not practicable. In addition, if the employee fails comply with the 30-day notice requirement, the employer may delay or deny leave. See Consequences of Failure to Provide Timely Notice of Need for FMLA Leave. An employer cannot require more than 30 days' advance notice for a foreseeable leave. +29 C.F.R. § 825.302 (d).

Circumstances where 30 days' advance notice may not be practicable include:

  • A lack of knowledge of approximately when leave must begin;
  • A change in circumstances;
  • A leave is extended;
  • A military emergency (i.e., qualifying exigency); or
  • A medical emergency.

In those situations, an employee must provide the employer notice as soon as is practicable. +29 C.F.R. § 825.302 (a). Notice is practicable when it is both possible and practical for the employee to provide notice. All facts and circumstances of each case must be taken into account. Generally, it would be practicable for an employee to provide notice of a change in the need for leave either the same day or the next business day. +29 C.F.R. § 825.302 (b).

Practical Example

Abby, who is pregnant, attends a routine checkup with her doctor over her lunch hour. During the checkup, Dr. Jones tells her that she needs to immediately be placed on bed rest until the baby is born six weeks from now. Once Abby has completed the checkup, it would be practical and possible for her to call and tell her employer, Acme Manufacturing, that she needs leave immediately.

Leaves due to a qualifying exigency, by definition, are not ones where 30 days' advance notice is practicable. As a result, for a qualifying exigency, an employee must only provide notice as soon as practicable, regardless of how far in advance the employee knows of the need for leave. +29 C.F.R. § 825.302 (a).

Notice of Unforeseeable FMLA Leave

The need for FMLA leave can arise unexpectedly. For example, a covered servicemember might be injured in the line of duty, requiring an employee to leave work on short notice to care for that person. Likewise, the employee may be involved in an accident that requires the employee's hospitalization. Where the need for leave cannot be predicted or unexpectedly changes, the leave is considered unforeseeable FMLA leave.

If the leave is unforeseeable, an employee must provide notice to the employer as soon as practicable under the facts and circumstances of the situation. +29 C.F.R. § 825.303 (a). Notice is usually practicable within the time frames established by the employer's customary and usual notice requirements. However, if the employer's customary and usual notice requirement includes requiring an advance written request for leave, the employee will be excused from providing the advance written notice. +29 C.F.R. § 825.303 (c). Rather, the employer may request the employee complete a written request at a later time. If the employee fails to provide notice when it is practicable, the employer may delay or deny leave. See Consequences of Failure to Provide Timely Notice of Need for FMLA Leave.

An employer's customary and usual notice requirement may include a call-in procedure for employees to follow when the need for leave is unforeseeable. For instance, the call-in procedure may require leaving a message at a designated telephone number or contacting a designated employer representative to report the absence. +29 C.F.R. § 825.303 (c). An employee will be excused from immediately complying with a call-in procedure if the employee requires emergency medical treatment or somehow otherwise incapacitated. Rather, in those circumstances, the employee may utilize the call-in procedure once the employee has been stabilized and is able to use a telephone. See e.g., DOL Opinion Letter, FMLA2009-1-A (Jan. 6, 2009).

Practical Example

Eliza and her partner are foster parents. Eliza receives a call one morning letting her know that a caseworker will bring a new foster child to her home that same evening. Eliza contacts her HR representative and lets him know that she must go home immediately to prepare for the child's arrival and will not be at work for the rest of the week while she helps the child get settled. Although the company normally requires employees to provide written requests for leave, the HR representative tells Eliza that she can put the request in writing when she returns the following Monday.

Consequences of Failure to Provide Timely Notice of Need for FMLA Leave

Generally, if an employee fails to follow the employer's customary and usual notice procedures and no unusual circumstances excuse the employee's compliance, FMLA leave may be delayed or denied. +29 C.F.R. § 825.302 (d); +29 C.F.R. § 825.303 (c). Moreover, the employer can discipline the employee for failure to follow established notification procedures, such as calling an employee absence reporting line. +29 C.F.R. § 825.302 (d) See also Employee Discipline: Federal. The employer may not delay or deny FMLA leave to an employee, or discipline the employee, if the employer's notice requirements are more stringent than the FMLA's requirements for foreseeable and unforeseeable leaves.

When the need for leave is foreseeable at least 30 days in advance of the leave, an employee must provide at least the 30 days' notice required or provide a reasonable excuse for failing to provide the appropriate notice. If the employee fails to do so when the leave was clearly foreseeable, the employer may delay FMLA coverage until 30 days after the date the employee provided notice. +29 C.F.R. § 825.304 (b).

In circumstances where the need for leave is foreseeable fewer than 30 days in advance, the employee must give notice as soon as practicable under the specific situation. If this occurs, the employer may delay FMLA coverage for a length of time that depends on the situation. +29 C.F.R. § 825.304 (c). For example, if the employee should have reasonably given three weeks of advance notice but provided one week's notice, the employer could delay the leave for two weeks. Further, if the employee chose to take the leave immediately, rather than delaying it for two weeks, the two-week period would not be protected under FMLA.

Practical Example

Greg and his wife had a baby last month. On Monday night, Greg and his wife decide she will return to work in two weeks, rather than taking more time off from her job due to their economic circumstances. Because they have not found childcare for the baby, Greg and his wife decide he should take baby bonding time starting in two weeks when his wife returns to work. Rather than tell his employer, Acme Distributor Co., on Tuesday morning that he wishes to take baby bonding time starting in two weeks, Greg waits another week before making his leave request. Acme Distributor Co. could delay Greg's leave by an additional week for failing to provide notice of his need for leave when it was practicable, i.e., the day after Greg and his wife made the decision that she would return to work.

For unforeseeable leaves where an employee fails to follow the employer's customary and usual notice procedures, leave may be either delayed or denied. +29 C.F.R. § 825.303 (d). The length of time that the employer may delay FMLA protection for the leave depends on the circumstances. +29 C.F.R. § 825.304 (d). For instance, if an employee waits three days to report the need for leave when the employee could have reported it very soon after the need arose, the employer may delay FMLA coverage by three days and count the absence during that three day period as an unexcused absence.

Regardless of whether the leave was foreseeable or unforeseeable, the employer may only delay FMLA leave due to lack of required notice if the employee was clearly notified of the employee's notice obligations. +29 C.F.R. § 825.304 (a). The employer satisfies the requirement for clear notice by properly posting the general notice at the worksite and by including the notice in distributing its FMLA policy to employees. See General Notice Posting Requirements.

An employer may waive the FMLA's employee notice obligations or its own internal rules for notice. +29 C.F.R. § 825.304 (e). If the employer does not waive notice requirements and no unusual circumstances excuse the failure to follow notice requirements, the employer may take appropriate action under its rules and procedures for failure to provide proper notice. An employer may take such actions so long as the actions comply with the FMLA and are applied consistently to all employees.

Practical Example

Jeff's employer, Acme Carwash, requires its employee to call in to specific number and leave a voicemail to report an absence from work. Jeff has been approved to take intermittent leave for a serious health condition. Although Jeff understands that he is supposed to call in any absence, including an FMLA absence related to his serious health condition, Jeff fails to call into work for three days to let Acme Carwash know that he cannot report to work due to his serious health condition. When he returns to work on the fourth day, Jeff's supervisor asks him why he did not call in his absences from work. Jeff tells the supervisor, "I forgot." Acme Carwash may discipline Jeff for failure to follow its standard absence call in procedures, because no extenuating circumstances exist that would excuse Jeff from following the absence reporting procedure.

Special Notice Situations of Need for FMLA Leave

Military Leaves

FMLA leave for military-related reasons falls into two categories: military (qualifying) exigencies and to care for a covered servicemember. Leave for a military exigency can either be foreseeable or unforeseeable and includes events such as:

  • Short-notice deployment;
  • Military events and related activities;
  • Childcare and school activities;
  • Financial and legal arrangements;
  • Counseling;
  • Rest and recuperation;
  • Post-deployment activities;
  • Care of the military member's parent; or
  • Additional events arising out of a covered servicemember's active duty or call to active duty as agreed upon by the employee and employer.

See Military Exigency Leave.

If the need for military exigency leave is foreseeable, an employee must provide notice as soon as practicable, regardless of how far in advance the need for leave is known. Moreover, when the need for military caregiver leave is foreseeable, 30 days' notice is required unless that amount of notice is not practicable. +29 C.F.R. § 825.302 (a).

Practicable notice means the employee must provide notice as soon as is possible and practical, taking into account each individual situation's facts and circumstances. +29 C.F.R. § 825.302 (b). This practicable standard is the same as the standard for other types of FMLA leave.

Like the employee notice obligations for other types of FMLA leave, the employee must provide enough information to put the employer on notice that the time off is due to:

  • A military (qualifying) exigency;
  • A military member is on covered active duty or has been called to covered active duty; or
  • A family member is a covered servicemember with a serious injury or illness.

+29 C.F.R. § 825.302 (c).

An employer may require an employee to adhere to all other notice requirements applicable to other types of FMLA leave. See Receiving and Reviewing Employee Requests for FMLA Leave.

Intermittent Leave or Reduced Schedule Leave

Intermittent or reduced schedule leaves are permitted in two different circumstances:

  1. When medically necessary; and
  2. For a qualifying exigency.

An employer may request that an employee provide information about why an intermittent or reduced leave schedule is necessary when the employee provides notice of the need for leave.

+29 C.F.R. § 825.302 (f). The employer may also require the employee provide notice as to the employee's treatment schedule for an intermittent or reduced schedule leave. The employer and employee must work together to work out a schedule, if feasible, that will least disrupt the employer's operations. Any agreed upon schedule is subject to approval of the health care provider. See Administering and Processing Intermittent and Reduced Schedule Leave Requests.

Practical Example

Teddy, a forklift transport specialist for Acme Industries, is undergoing radiation therapy for a basal cell carcinoma on his ear. He notifies his supervisor of his need for intermittent leave. She and Teddy, along with the HR department, discuss a plan for Teddy to be present at work during Acme's busiest days of the month. Teddy changes the time of two of his therapy sessions so that he can be there to help during the busy times.

Determining Employee Eligibility for FMLA Leave

Once an employer has notice of an employee's need for FMLA leave, the next step is determining whether the employee is eligible for leave.

The FMLA uses a three-prong test to determine if employees are eligible for leave. An employee of a covered employer is eligible for leave if the employee:

  • Has been employed by the employer for at least 12 months;
  • Has been employed for at least 1,250 hours during the 12 months immediately preceding the leave (subject to special hours of service requirements for airline flight crew employees); and
  • Is employed at a worksite where 50 or more employees are employed by the employer within 75 miles of that worksite.

+29 C.F.R. § 825.110 (a)(1)-(3).

First Prong: Twelve Months of Service

To be FMLA eligible, the employee must have worked at least 12 months as of the date the leave is to start. These 12 months do not need to be consecutive. +29 C.F.R. § 825.110 (b). Generally, time spent before a break in service of seven years or more is not counted toward the 12 months, but there are exceptions to this rule. +29 C.F.R. § 825.110 (b)(1).

Time worked before a break in service must be counted toward the 12 months if:

  • The break in service is the result of the employee's military service or National Guard or Reserve service; or
  • The employer has made a written commitment to rehire the employee after the break in service.

The written commitment to rehire an employee can be an agreement applying to one particular employee, or it could be part of a collective bargaining agreement. +29 C.F.R. § 825.110 (b)(2).

An employer may choose to recognize time before a seven year break in service as counting toward the 12 months of service. However, if it wishes to do this, the employer must do so uniformly for all employees with similar breaks in service. +29 C.F.R. § 825.110 (b)(4).

When the employee's break in service is the result of time spent in the National Guard, Reserves or other military service, the time served must be counted toward the 12 months of employment needed to be FMLA eligible. However, the employee does not have greater rights than would be available under the Uniformed Services Employment and Reemployment Rights Act (USERRA). +29 C.F.R. § 825.119 (b)(2)(i). See Employee Leaves > USERRA > USERRA Interplay.

Under the FMLA, 52 weeks of service equal 12 months of service. An employee is considered to have a week of service counting toward the 12 months of service requirement even though the employee does not work a full week. +29 C.F.R. § 825.110 (b)(3). As a result, an employee working on an intermittent, occasional or casual basis may be eligible for FMLA leave sooner than one might assume.

An employee is credited with a week of service if:

  • The employee is on payroll for any portion of the week; and
  • Other benefits or compensation are provided by the employer.

Paid or unpaid leave (such as sick leave or vacation) count as a week on payroll and thus a week of service. Further, when an employee receives other benefits and compensation, such as workers' compensation benefits, group health plan benefits, etc., those time periods will count toward an employee's weeks (and months) of service. +29 C.F.R. § 825.110 (b)(3). Because time spent on other forms of leave can qualify toward the 12 months of service requirement, an employee may become eligible for FMLA leave while already on some other type of leave. If there is an FMLA-qualifying reason for leave, the portion of the leave that is taken after the employee becomes eligible is FMLA leave. +29 C.F.R. § 825.110 (d).

Practical Example

Amelia begins working as a medical technologist at Acme Hospital on October 1, 2016. She is injured on the job in December 2016, and spends three weeks on disability leave. Amelia becomes pregnant in early 2017. The three weeks that she spent on disability leave in December 2016 count toward her 52 weeks of service under the FMLA, so she is eligible to take FMLA leave when the baby is born in October 2017.

Second Prong: 1,250 Hours of Service

An employee must have worked 1,250 hours in the last 12 months (subject to special hours of service requirements for airline flight crew employees). The 1,250 hours of service are determined as of the date the leave is to start. +29 C.F.R. § 825.110 (d). Hours that are considered compensable under the Fair Labor Standards Act (FLSA) count toward the 1,250 hours required for FMLA eligibility, again subject to special rules applicable to airline flight crew employees. +29 C.F.R. § 825.110 (c)(1). See Employee Compensation > Hours Worked; Hours Eligibility Rules for Flight Crews and Flight Attendants

An employee who is returning from service in the National Guard, Reserves or regular uniformed services must be credited with hours he or she would have worked but for the period of absence from work due to or necessitated by USERRA-covered military service. The hours the employee would have worked must be added to the hours the employee actually did work in the 12 months prior to the start of FMLA leave to determine if the hours of service requirement (1,250 hours for all employees other than airline flight crew employees) has been met. +29 C.F.R. § 825.110 (c)(2).

Practical Example

On January 1, Mary requests an FMLA leave from her employer Acme Automotive, Inc. to begin immediately. In the 12-month period prior to January 1, Mary performed National Guard service for four months and worked 900 hours in the other eight months. Mary's regular work schedule requires her to work 120 hours per month - or 480 hours in a four month period. To determine if Mary has met the 1,250 hours service requirement, Acme Automotive must add the 900 hours Mary did work to the 480 hours she would have worked had she not performed National Guard service and must credit Mary with all of those hours as if she had worked them in the past 12 months. Mary will be credited with working 1,380 hours in the 12-month period prior to the requested leave's start and will have met the 1,250 hours service requirement. Thus, Mary will be eligible to take an FMLA leave.

An employer may not have accurate time records for executives, administrators, professionals and other employees who are exempt from overtime pay requirements, because an employer usually does not track the number of hours exempt employees work. If accurate time records are not available, the employer must prove that the employee did not work the required 1,250 hours if it intends to deny the requested leave. +29 C.F.R. § 825.110 (c)(3).

When evaluating whether an employer can prove that an exempt employee did not work the required 1,250 hours in the 12 months before the requested leave is to start, an employer should remember that exempt employees may work away from the worksite. For example, teachers may grade papers or prepare lesson plans while working from home, or executives may work on performance reviews or budgets while otherwise on vacation. All such time must be accounted for in determining whether the employer can lawfully deny the requested leave on the ground that the employee did not work the required 1,250 hours in the 12 months before the leave is to start.

Practical Example

Acme High School employs its teachers for nine months of the year, giving teachers the summer off from work. Acme High School does not track the hours its teachers work because the teachers are classified as exempt employees. A teacher will be presumed to have worked the required 1,250 hours to be eligible for FMLA leave unless Acme High School can show affirmatively that the teacher did not work at least 1,250 hours in the 12 months prior to the time the FMLA would have started.

Hours Eligibility Rules for Flight Crews and Flight Attendants

The 2009 FMLA amendments provide special hours of service rules for flight crews. The amendments were intended to address the fact that regulatory limits on flying time prevented many flight crew employees from meeting the requirement that they work 1,250 hours in a 12-month period and, thus, were not FMLA eligible. The amendments provide eligibility to flight crew members who work approximately 60 percent of a full time schedule over the 12 months before their leave would begin. 29 U.S.C.S. § 2611(2)(D)(i)(I); +29 C.F.R. § 825.800 (b). This flight crew rule mimics the rationale behind the 1,250 hours of service requirement for other employees - 1,250 hours of service in one year is approximately 60 percent of a 40-hour per week schedule for one year.

Flight crews meet the hours of service requirement for FMLA leave if, during the 12 months before the start of the leave, they have:

  • Worked or been paid for at least 60 percent of the available monthly guaranteed schedule; and
  • Worked or been paid for at least 504 hours.

29 U.S.C.S. § 2611; +29 C.F.R. § 825.800 (b).

Personal commute time, time on vacation or time on medical or sick leave does not count toward meeting the hours of service requirement for flight attendants and flight crew members. 29 U.S.C.S. § 2611(2)(D)(i)(II).

For purposes of the FMLA, the hours that an airline flight crew employee has worked are the employee's duty hours for the previous 12-month period. The hours that an airline flight crew employee has been paid are the number of hours for which an employee received wages during the previous 12-month period. +29 C.F.R. § 825.800 (b)(2).

The applicable monthly guarantee for an airline flight crew employee who is not on reserve status is the minimum number of hours for which an employer has agreed to schedule the employee for any given month. The applicable monthly guarantee for an airline flight crew employee who is on reserve status is the number of hours for which an employer has agreed to pay the employee for any given month. +29 C.F.R. § 825.800 (b)(1).

Personal commute time, time on vacation, or time on medical or sick leave does not count toward meeting the hours of service requirement for flight crew members. 29 U.S.C.S. § 2611(2)(D)(i)(II); +29 C.F.R. § 825.800 (b)(2). See also Fact Sheet #28J: Special Rules for Airline Flight Crew Employees under the Family and Medical Leave Act.

Third Prong: 50 Employees Within 75 Miles

To be eligible for leave, an employee must work at a worksite where the employer has at least 50 employees on payroll within 75 miles. +29 C.F.R. § 825.110 (a)(3). Whether the employee meets this prong is determined at the time the leave is requested. +29 C.F.R. § 825.110 (e). This is different than the first two prongs of the test, which are determined as of the time the requested leave is to begin. +29 C.F.R. § 825.110 (d). If the employer has the required number of employees at the right locations at the time the leave is requested, it does not matter if the number of employees declines to below 50 at the time leave is to begin. +29 C.F.R. § 825.110 (e).

Practical Example

In April, Nancy requests leave to begin in July. Acme Greenhouse has 60 people on payroll at Nancy's worksite in April but expects that the head count will drop to 40 employees before July. If Nancy meets the other FMLA eligibility requirements, Acme Greenhouse must approve the leave, because at the time Nancy requested the leave, Acme Greenhouse employed 50 or more employees at Nancy's worksite.

What Constitutes a Worksite?

Several buildings in a metropolitan area may be treated as one worksite if the employer uses them for the same purpose and shares staff and equipment between locations. As an example, multiple warehouses managed by the same employer in the same metropolitan area can be one worksite if the workforce regularly moves from one site to another. +29 C.F.R. § 825.111 (a)(1).

Some employees do not have a fixed place of work. For example, truck drivers, pilots and construction workers may not report to work in the same place every day. For FMLA purposes, their worksite is the home base to which they report, or from which their work is assigned. +29 C.F.R. § 825.111 (a)(2).

Some employees telecommute from home. Others, like salespersons, travel a territory, leaving from and returning to their homes each day. Their worksite is the office to which they report and from which their assignments are made. It is not their residence. +29 C.F.R. § 825.111 (a)(2).

How to Measure Seventy-Five Miles

The 75-mile requirement is determined by transportation miles, not as the crow flies. The shortest route on public streets, waterways or by air (if surface transportation is not available) is used to identify worksites within the 75-mile limit. +29 C.F.R. § 825.111 (b).

Who Is Counted for the 50-Employee Threshold?

All employees on the employer's payroll are counted to determine if 50 people are employed at a worksite within 75 miles of the person requesting leave. +29 C.F.R. § 825.111 (c). Employees on vacation, workers' compensation leave or other leave are counted in the 50-person total, so long as the employer reasonably expects that those employees will return to active employment. Part-time employees are considered to be on payroll each working day of the calendar week. +29 C.F.R. § 825.105 (c).

An employee who does not work in any US state, the District of Columbia or a US territory or possession are not counted to determine employer coverage or employee eligibility for leave. +29 C.F.R. § 825.105 (b).

Qualifying Reasons for Leave

An employee can take FMLA leave for the following six situations:

  1. An employee's own serious health condition that leaves the employee unable to perform the essential functions of his or her job (see Employee's Own Serious Health Condition);
  2. To care for an employee's spouse, son, daughter or parent who is suffering from a serious health condition (see Serious Health Condition of the Employee's Son, Daughter, Spouse or Parent);
  3. To bond with a newborn biological child or a newly adopted or fostered child (see Care Due to the Birth of the Employee's Child);
  4. Leave for the placement of a child with the employee for adoption or foster care (see Placement of a Child for Adoption or Foster Care With the Employee);
  5. A military exigency exists where the employee's spouse, son, daughter or parent is on covered active duty or called to covered active duty status and the employee must take time off from work to make various practical arrangements (see Military Exigency Leave); and
  6. When an employee is the spouse, son, daughter, parent or next of kin of a covered servicemember who has a serious illness or injury and therefore the employee is needed to care for the covered servicemember (see Military Caregiver Leave).

See also Fact Sheet 28F: Qualifying Reasons for Leave Under the Family and Medical Leave Act; Fact Sheet 28M: The Military Family Leave Provisions under the Family and Medical Leave Act.

Employee's Own Serious Health Condition

An eligible employee who is unable to perform the employee's job functions due to a serious health condition may take an FMLA leave. +29 C.F.R. § 825.112 (a)(4). An employee will be unable to perform his or her job functions if the employee is:

An employee is not able to perform the essential functions of the employee's job if the employee must be absent from work to receive treatment for a serious health condition. +29 C.F.R. § 825.123 (a).

What Qualifies As a Serious Health Condition?

A serious health condition is an injury, illness, impairment or physical or mental condition that involves:

  • Inpatient care; or
  • Continuing treatment by a health care provider.

+29 C.F.R. § 825.113 (a).

Inpatient Care

Inpatient care is an overnight stay in a hospital, hospice, or residential medical care facility (regardless of the underlying reason or medical condition prompting the need for an overnight stay), including any period of incapacity or any later treatment in connection with that inpatient care. +29 C.F.R. § 825.114 . Incapacity means the inability to work, attend school or perform other regular daily activities. +29 C.F.R. § 825.113 (b).

The 3rd Circuit Court of Appeals analyzed the meaning of overnight stay for purposes of determining whether an employee has a serious health condition within the meaning of +29 C.F.R. § 825.113(a). The court concluded that an overnight stay means "a stay in a hospital, hospice, or residential medical care facility for a substantial period of time from one calendar day to the next calendar day as measured by the individual's time of admission and his or her time of discharge." See Bonkowski v. Oberg Indus., Inc., +2015 U.S. App. LEXIS 8492 (3rd Cir. May 22, 2015). Though the employee had spent part of the evening at the hospital for treatment, he had not actually been admitted until after midnight. Because he was then discharged the following afternoon, his stay was not considered an overnight stay within the meaning of the FMLA regulation. While the Bonkowski case only directly applies to states in the 3rd Circuit (Delaware, New Jersey and Pennsylvania), it may be considered persuasive authority in other jurisdictions.

Treatment occurs when an eligible employee makes an in person visit to a health care provider. Treatment includes:

  • Examinations to determine if a serious health condition exists; or
  • A course of prescription medication (like antibiotics) or therapy requiring special equipment (like oxygen).

Treatment by a health care provider does not include:

  • Routine physical examinations, eye examinations or dental examinations;
  • Taking over-the-counter medicines like aspirin or antihistamines;
  • Taking fluids and bed rest; or
  • Other treatments that do not require a visit to a health care provider.

+29 C.F.R. § 825.113 (b).

All health conditions that require inpatient care and/or treatment subsequent to and in connection with such inpatient care are serious health conditions.

Continuing Treatment

Continuing treatment by a health care provider includes incapacity of more than three consecutive full calendar days and any later treatment or period of incapacity relating to the same condition that also involves one of five different situations:

  1. Incapacity plus treatment;
  2. Pregnancy or prenatal care;
  3. Chronic conditions;
  4. Permanent or long-term conditions; or
  5. Conditions requiring multiple treatments.

+29 C.F.R. § 825.115 . The majority of serious health conditions will fall under the broad umbrella of continuing treatment, more specifically incapacity plus treatment.

Incapacity Plus Treatment. There are two situations for an employee to show a serious health condition (of the employee or his or her family member) because of an incapacity plus treatment.

  1. The first situation involves a period of incapacity (i.e., the inability to work, attend school or perform other regular daily activities) of more than three consecutive, full calendar days and an in-person treatment two or more times by a health care provider within 30 days of the first day of incapacity, unless extenuating circumstances exist.
  2. Alternatively, the second situation involves a period of incapacity of more than three consecutive, full calendar days and an in-person treatment by a health care provider on at least one occasion that results in a regimen of continuing treatment under the supervision of a health care provider.

For the first situation there are certain time constraints on when the two treatments must be received, which are:

  • The first in-person visit to the health care provider must take place within the first seven days of the first day of incapacity;
  • Both in-person treatments must be received within 30 days of the first day of incapacity (whether a second treatment is needed is decided by the health care provider, not the patient); and
  • It is not required that both treatments be received during the period of incapacity.

In the second situation, the regimen of continuing treatment means a course of prescription medication (like antibiotics) or therapy requiring special equipment (like oxygen) that can only be ordered by a health care provider.

In either circumstance, the first (or only) in-person visit to the health care provider must take place within the first seven days of the first day of incapacity. +29 C.F.R. § 825.115 (a).

Practical Example

Susan goes to her health care provider because she is experiencing stomach cramps and has been vomiting. She thinks it is the stomach bug since two of her children have it. When she goes to the doctor he writes her a prescription for an antibiotic. However, when she gets home she continues to vomit, experiences dehydration and ends up in the emergency room. The hospital doctors run some tests and determine that Susan has been exposed to a bacterial infection which is a lot more serious than what she had thought. Although Susan did not receive her doctor's approval for a second visit, it still would be advisable for her employer to approve her leave.

Pregnancy or Prenatal Care. Any period of incapacity due to pregnancy or prenatal care or for another serious health condition following the birth of a child qualifies as a serious health condition. +29 C.F.R. § 825.115 (b). Leave due to pregnancy may begin before the birth of the child through prenatal care or if the employee's condition makes her unable to work. In addition, if the leave is due to pregnancy or prenatal care, the employee may take leave even if she does not receive treatment from a health care provider during the absence and even if the absence does not last for more than three consecutive days. For example, severe morning sickness that prevents the employee from performing her job would be covered by FMLA. +29 C.F.R. § 825.120 (a)(4). Although an employee suffering from morning sickness does not have to go to a health care provider, an employer is not without recourse if it thinks a pregnant employee is abusing FMLA leave. An employer still has a right to ask the employee for a medical certification as a prerequisite to granting the leave.

An employer must proceed with caution in dealing with pregnant employees. Even if a pregnant employee has a pregnancy-related impairment that does not rise to the level of an FMLA-qualifying serious health condition, she may nonetheless be eligible for medical or sick leave under the employer's own policies, or as a reasonable accommodation under the Pregnancy Discrimination Act (PDA) and the ADA.

On March 25, 2015, the US Supreme Court issued its decision in Young v. UPS, +2015 U.S. LEXIS 2121. See Supreme Court Rules Against UPS in Pregnancy Discrimination Case. The Court rejected the employee's (and the EEOC's) position that the PDA requires an employer that accommodates nonpregnant employees with work limitations to accommodate pregnant employees who are similar in their ability or inability to work. In light of Young, on June 25, 2015, the EEOC released a revised and updated version of its Enforcement Guidance related to pregnancy discrimination and accommodation. The updated Enforcement Guidance reiterates the Court's finding in Young that employer policies that do not facially discriminate on the basis of pregnancy may nonetheless violate the PDA if they impose significant burdens on pregnant employees that cannot be supported by a sufficiently strong justification. Thus, leave policies that provide accommodations to some workers but exclude pregnant employees may violate the PDA. Employers must ensure they have legitimate, nondiscriminatory reasons for treating pregnant employees differently under their workplace policies; however, an employee may have the opportunity to show in court that the reasons are a pretext for discrimination. See also Employee Management > Disabilities (ADA); The Bermuda Triangle Has Expanded: The FMLA's Intersection With the ADA, Workers' Compensation and More - Legal Insight.

The husband or wife of a pregnant spouse is also entitled to FMLA leave to care for the pregnant spouse who is incapacitated, if he or she is needed to care for her during prenatal care or following the child's birth due to the pregnancy or another serious health condition. +29 C.F.R. § 825.120 (a)(5).

Some state laws provide additional requirements for leaves due to an employee's disability from pregnancy. Therefore, an employer should check applicable state law to see if it has any additional requirements. See State Requirements.

Giving birth and adopting or fostering a child are a separate qualifying reason for leave and are not considered serious health conditions. In addition, bonding leave (to bond with a newborn, adopted or foster child) is not considered a serious health condition but is a separate qualifying reason for leave.

Chronic Conditions. Chronic conditions are typically long-term ailments (of the employee or the employee's family member) that typically are not curable but may only be incapacitating periodically. The period of incapacity or treatment for the incapacity due to a chronic serious health condition is covered by FMLA.

A chronic condition is one which:

  • Requires at least two visits per year for treatment by a health care provider or a nurse under direct supervision of a health care provider;
  • Continues episodically or over an extended period of time; and
  • May cause episodic incapacity rather than a continuing period of incapacity.

The two visits per year must be in-person and requested by the health care provider (not the patient).

Episodic chronic conditions include, among other conditions, asthma, diabetes, and epilepsy. +29 C.F.R. § 825.115 (c). In addition, if the leave is due to a chronic condition, the employee may take leave even if the employee does not receive treatment from a health care provider during the absence and even if the absence does not last for more than three consecutive days. For example, an asthma attack that prevents an employee from reporting to work would be covered by FMLA. Similarly, if an employee with asthma is advised by a health care provider to stay at home when the pollen count exceeds a certain level, the absence would qualify as an FMLA leave due to a chronic condition. +29 C.F.R. § 825.115 (f).

Permanent or Long-Term Conditions. The FMLA covers a period of incapacity which is permanent or long-term due to a condition for which treatment may not be effective. For a permanent or long-term condition to be covered by FMLA, the employee or family member must be under the continuing supervision of, but must not necessarily be receiving treatment by, a health care provider. Permanent or long-term conditions include, among other conditions, Alzheimer's, a severe stroke or the terminal stages of a disease. +29 C.F.R. § 825.115 (d).

Conditions Requiring Multiple Treatments. A condition requiring multiple treatments is an absence to receive multiple treatments and to recover from those treatments by a health care provider for:

  • Restorative surgery after an accident or other injury; or
  • A condition that would likely result in a period of incapacity of more than three consecutive, full calendar days in the absence of medical intervention or treatment.

Examples of conditions requiring multiple treatments include, among other things:

  • Chemotherapy;
  • Radiation treatment for cancer;
  • Physical therapy for severe arthritis; or
  • Dialysis for kidney disease.

+29 C.F.R. § 825.115 (e)(1)-(2).

FMLA Covers Broader Conditions Than ADA

While the FMLA incorporates ADA concepts, such as essential job functions, it actually covers a broader scope of conditions than those covered by ADA. In essence, an ADA disability will likely fall within the scope of FMLA so long as it involves inpatient care or continuing treatment by a health care provider. +29 C.F.R. § 825.113 (a). However, not all serious health conditions will be considered ADA disabilities. See The Bermuda Triangle Has Expanded: The FMLA's Intersection With the ADA, Workers' Compensation and More - Legal Insight.

Practical Example

Trudy decides to have plastic surgery on her face for cosmetic purposes. The plastic surgery does not require inpatient surgery and Trudy is able to have the procedure done in two hours. Within a few hours of coming home from the plastic surgery, Trudy has an adverse reaction to some of the medication she was given for pain, causing ongoing complications for Trudy. As a result, Trudy must see her plastic surgeon every day for the next week for follow up treatment and care. Given the complications requiring continuing treatment, Trudy's plastic surgery qualifies as a serious health condition. However, if this serious health condition is not a physical or mental impairment that substantially limits a major life activity, it will not be considered an ADA disability.

The FMLA regulations specifically refer to a serious health condition as not necessarily being synonymous with an ADA disability. +29 C.F.R. § 825.702 (b). See also +29 C.F.R. § 825.122 (d)(2); +29 C.F.R. § 825.216 (c); +29 C.F.R. § 825.306 (d). Thus, the requirement to provide FMLA leave for an employee's own serious health condition must be analyzed separately from any reasonable accommodation an employer may have under the ADA. +29 C.F.R. § 825.702 (b). The differences between the FMLA and ADA include, but are not limited to:

  • FMLA leave for an employee's own serious health condition is limited to 12 weeks in any 12-month period, but there is no set limit on the amount of time an employer must provide a reasonable accommodation under the ADA (Note: the ADA does not apply to an employee's need for leave to care for a family member with a serious health condition.);
  • FMLA requires an employer to maintain group health plan coverage during leave under the same conditions as if the employee had been continuously employed, but the ADA does not require maintenance of benefits during leave;
  • The FMLA does not include an undue hardship exception to a leave request, while the ADA allows an employer to argue that undue hardship may limit an employer's obligation to provide leave as a reasonable accommodation; and
  • The FMLA does not permit the employer to propose alternatives to providing leave while the ADA provides for an interactive process to discuss various options for reasonable accommodation.

+29 C.F.R. § 825.702 . See The Bermuda Triangle Has Expanded: The FMLA's Intersection with the ADA, Workers' Compensation and More.

What Is Excluded From the Definition of Serious Health Condition?

Generally, unless complications arise, routine conditions are not considered serious health conditions and will not qualify for FMLA leave. Routine conditions include:

  • The common cold;
  • The flu;
  • Earaches;
  • Upset stomach;
  • Minor ulcers;
  • Headaches other than migraines; and
  • Routine dental or orthodontia problems.

In addition, conditions that require voluntary cosmetic treatments, such as plastic surgery, liposuction or scar removal, do not qualify as a serious health condition unless inpatient hospital care is required or unless complications develop. +29 C.F.R. § 825.113 (d).

Medical Certifications in Connection With a Serious Health Condition

An employer is allowed to request an employee provide a medical certification when the employee requests FMLA leave for the employee's own serious health condition. +29 C.F.R. § 825.305 . To determine if the employee is unable to perform the job's essential functions, an employer may provide a health care provider with a statement of essential functions. This statement of essential functions must be for the position the employee held at the time the employee gave notice of the need for leave or the time the leave began, whichever is earlier. A sufficient health care provider's medical certification must specify which functions the employee is unable to perform. This statement allows the employer to determine whether the employee is unable to perform one or more of the employee's essential job functions. +29 C.F.R. § 825.123 (a). See Requesting Certification of the Need for Leave.

The DOL has given health care provider a very broad definition. In addition to including doctors of medicine who are authorized to practice medicine or surgery, the definition also includes podiatrists, dentists, clinical psychologists, optometrists and more. See Requesting Certification of the Need for Leave.

Serious Health Conditions - Special Considerations

Substance Abuse Treatment. Substance abuse treatment qualifies as a serious health condition only if the treatment is by a health care provider or by a provider of health care services on referral by a health care provider. Absences resulting from substance abuse itself, rather than treatment, do not qualify for leave under the FMLA. +29 C.F.R. § 825.119 (a).

Fertility Treatment. At present, it is undetermined whether fertility treatments fall under the definition of serious health condition. Instead, whether fertility treatments falls under this definition will depend on the circumstances of each situation. See Culpepper v. BlueCross BlueShield of Tennessee, Inc., +321 Fed. Appx. 491 (6th Cir. 2009) (unpublished). Such determinations are very fact specific and may require assistance of legal counsel.

Bone Marrow or Organ Donor Treatments. In the past, Congress has introduced bills, such as the Living Organ Donor Job Security Act, to try to protect an employee's time off related to such donations. Thus far, attempts to amend the FMLA in this way have been unsuccessful. As a result, the FMLA presently remains silent as to whether bone marrow or organ donation is covered as FMLA leave. Because the employee is making a choice as to whether to donate an organ or bone marrow, the procedure is not likely an illness, injury, impairment or physical or mental condition within the definition of serious health condition. +29 C.F.R. § 825.113 (a).

If, however, the donation required in-patient care or complications arise due to the donation procedure that create trigger an illness, injury, impairment or physical or mental condition that requires inpatient care or continuing treatment by a health care provider, then organ or bone marrow donation may later considered to fall within the definition of a serious health condition. +29 C.F.R. § 825.113 (a). Thus, in some ways, organ or bone marrow donation may be treated similar to cosmetic procedures. +29 C.F.R. § 825.113 (d).

An employer should check applicable state and local law on this subject as some states provide protected leave for bone marrow or organ donor treatments. See Employee Leaves > Other Leaves > State Requirements.

Serious Health Condition of the Employee's Son, Daughter, Spouse or Parent

Which Situations Qualify?

If an eligible employee is needed to care for an ill family member, the employee may qualify to take FMLA for the family member's serious health condition. The employee is needed to care for a family member when the employee's physical care and/or psychological support and reassurance for that family member would be beneficial to the family member who is receiving inpatient care or home care. +29 C.F.R. § 825.124 (a).

An employee is needed to care for a family member in situations including:

  • Where family members are unable to care for their own basic medical, hygienic, or nutritional needs or safety;
  • Where family members are unable to transport themselves to the doctor;
  • Where the employee acts as a substitute for others who normally care for a family member; or
  • Making arrangements for changes in care, such as transfer to a nursing home or assisted living facility.

The employee need not be the only family member available to care for the family member. +29 C.F.R. § 825.124 .

An employer may require the employee requesting leave to provide an appropriate certification from the family member's health care provider of the family member's serious health condition and the need for assistance with that family member's care. See Content of Certification of the Employee's Serious Health Condition or the Serious Health Condition of an Employee's Family Member.

In the case of an employee who requests FMLA leave to travel as part of his or her care for a family member with a serious health condition, the circumstances underlying the need for travel may dictate whether the leave would be considered qualifying FMLA leave. If the employee must travel because his or her family member does not live nearby, and the employee is needed to care for the family member, such leave would likely qualify as FMLA leave. However, qualifying for FMLA leave is less clear-cut when travel is requested to accompany a seriously ill family member on the family member's travel plans. Though most courts to consider the issue have ruled that leave is not FMLA-qualifying where the family member's travel was unrelated to his or her medical treatment, at least one court has found that an employee may use FMLA leave to care for a seriously ill family member during a vacation.

To prevent FMLA abuse, an employer should consider all FMLA leave requests on a case-by case basis and use the certification process to ensure that the employee's assistance and care for the family member is required.

What Family Members Are Included

For leaves to care for a family member's serious health condition, three categories of family members are included:

  • The employee's spouse;
  • The employee's parent;or
  • The employee's son or daughter.

+29 C.F.R. § 825.112 (a)(3).

An employee's spouse is the employee's husband or wife as recognized under the law of the state where the employee became legally married. The definition of spouse includes same-sex spouses as well as a common law husband or wife if recognized by state law. +29 C.F.R. § 825.122(b).

Parents include biological, adoptive and foster parents, and those who stood in loco parentis to the employee when the employee was under the age or 18. A person may stand in loco parentis to a child if the person is (or was) responsible for the child's day-to-day care and financial support. No biological relationship or legal relationship is needed. +29 C.F.R. § 825.122 (d)(3). It also includes one who stood in loco parentis to an employee who was older than 18 but who is (or was) incapable of self-care. +29 C.F.R. § 825.122 (b)(1). Mothers-in-law and fathers-in-law are not parents for purposes of the FMLA. +29 C.F.R. § 825.122 (c). See DOL's Broader Interpretation of In Loco Parentis.

Son or daughter includes the biological, adopted or foster child of the employee. It also includes a stepchild, a legal ward or a child of a person standing in loco parentis. +29 C.F.R. § 825.122 (d). A person may stand in loco parentis to a child if he or she is (or was) responsible for the child's day-to-day care and financial support. No biological relationship or legal relationship is needed. +29 C.F.R. § 825.122 (d)(3).

In addition, an employee may also take leave to care for a son or daughter over the age of 18 if the son or daughter is incapable of self-care because of a physical or mental disability. A person is incapable of self-care if he or she needs active assistance or supervision in three or more activities of daily living (ADLs) or instrumental activities of daily living (IADLs).

ADLs include such things as:

  • Taking care of grooming;
  • Taking care of hygiene;
  • Bathing;
  • Dressing; and
  • Eating.

+29 C.F.R. § 825.122 (d)(1).

IADLs include:

  • Cooking;
  • Cleaning;
  • Shopping;
  • Taking public transportation;
  • Paying bills;
  • Keeping a residence;
  • Using the telephone;
  • Using the post office; and
  • Other similar basic functions.

+29 C.F.R. § 825.122 (d)(1). See also Fact Sheet #28K: "Son or Daughter" 18 years of age or older under the Family and Medical Leave Act and DOL Clarifies - But Does Not Change - FMLA Definition of Son or Daughter.

An employer may require reasonable documentation of the family relationship. A simple statement of the relationship from the employee is sufficient. If the employee provides other documents, such as an official court document or a birth certificate, the employer may examine the document but must return it to the employee. +29 C.F.R. § 825.122 (k). See Requesting Certification of the Need for Leave.

DOL's Broader Interpretation of In Loco Parentis

The DOL issued Administrator's Interpretation No. 2010-3 broadly construing the definition and meaning of in loco parentis. The FMLA regulations define in loco parentis to mean those with day-to-day responsibilities to care for and financially support a child. +29 C.F.R. § 825.122(d)(3). Rather than follow the FMLA's statutory definition, the Administrator's Interpretation attempted to expand the definition by relieving an employee from proving both day-to-day care responsibilities and financial support obligations for the child. Rather, the Administrator's Interpretation attempted to require only a showing that the employee intended to take a parental role for the child. In doing so, in loco parentissituations would be expanded to cover situations such as:

  • An employee providing day-to-day care for an unmarried partner's child;
  • An employee who will share equally in the raising of a child with the child's biological parent;
  • An employee who will share equally in the raising of an adopted child with a same sex partner, but who does not have a legal relationship with the child;
  • An employee who is a grandparent takes in a grandchild and assumes ongoing responsibility for raising the child because the parents are incapable of providing care; or
  • An aunt or uncle assumes responsibility for raising a child after the death of the child's parents (or if the parents are incapable of providing care or called to covered active duty).

The Administrator's Interpretation appears to place no limit on the number of parents a child can have under the FMLA (e.g., aunt caring for a child while single parent on covered active duty, four parents in the case of remarriages). In addition, the DOL appears to be stating that an employee can have in loco parentis status even if the employee does not intend to have a permanent parental relationship with the child (e.g., when an employee takes care of her grandchild because the parent is on active military duty). The employee will have to provide a simple statement asserting that the requisite family relationship exists.

Determining if an employee is in loco parentis to a child is a highly fact-sensitive consideration, which includes looking at:

  • The child's age;
  • How dependent the child is on the person claiming in loco parentis status;
  • The extent to which the person claiming in loco parentis status actually exercises or tries to carry out parental duties; and
  • The amount of financial support, if any, provided.

While the DOL's Administrator Interpretations do not have the same binding force as the FMLA statute or related court opinions, courts may give deference to such interpretations, so an employer may wish to consider them when drafting FMLA policies or making decisions regarding the FMLA. For more information on in loco parentis, please see the DOL's Fact Sheet 28B and the DOL's Fact Sheet #28C.

What Family Members Are Excluded

The FMLA does not include grandparents, siblings, aunts, uncles, cousins, in-laws, civil union partners or domestic partners within the definitions of family members whose need for care may trigger the right to take a leave of absence for the family member's serious health condition. The FMLA's definitions of spouse, son, daughter, parent and child are used throughout the various forms of leave that are provided. In addition, for military caregiver leave only, a covered servicemember's next of kin is able to take FMLA leave. +29 C.F.R. § 825.122 (e). But see DOL's Broader Interpretation of In Loco Parentis.

An employer should be aware that some state and local governments have leave laws that provide broader coverage than the FMLA, especially as to domestic partnerships or civil unions. In addition, some state and local governments also provide leave to care for a broader category of family members who have a serious health condition or for other illness or injury related reasons. See State Requirements.

Care Due to the Birth of the Employee's Child

Leave to bond with a newborn child may be taken by both the child's mother and father. The leave must be completed within 12 months of the child's birth. +29 C.F.R. § 825.120 (a)(1); +29 C.F.R. § 825.120 (a)(2). Spouses (including same-sex spouses) may be limited to a combined total of 12 weeks of leave between them when they:

  • Are employed by the same employer;
  • Are both eligible for leave; and
  • Have a new baby.

This limit applies even if the spouses work in different locations or for different operating divisions of the employer. +29 C.F.R. § 825.120 (a)(3). Use of intermittent leave or reduced schedule leave to bond with a new baby may only be taken if the employer agrees. +29 C.F.R. § 825.120 (b).

Practical Example

Annie and Joel, a married couple, have both been professors at Acme University for five years. Acme University policy limits spouses to a combined total of 12 weeks of FMLA leave. When their son is born, Annie takes eight weeks of FMLA leave and Joel takes four.

Placement of a Child for Adoption or Foster Care With the Employee

The rules that apply for leave to bond with and care for a newborn biological child also apply to permit leave to bond with a newly placed adopted or foster son or daughter. +29 C.F.R. § 825.121 . In addition to taking time off for adoption or foster care placement to bond with the child, employees may take FMLA leave beforethe placement of an adopted or foster child. Time off in these situations is permitted when needed for activities required to allow the placement to be completed. For example, prospective adoptive or foster parents may need to:

  • Attend counseling sessions;
  • Appear in court;
  • Consult with doctors or attorneys; or
  • Travel to another country.

+29 C.F.R. § 825.121 (a)(1). This time off can be used intermittently or on a reduced schedule basis. In addition, time off for adoption or foster care once the child has been placed with the employee must be taken within the 12-month period following the placement. +29 C.F.R. § 825.121 (a)(2).

Spouses (including same-sex spouses) may be limited to a combined total of 12 weeks of leave between them when they:

  • Are employed by the same employer;
  • Are both eligible for leave; and
  • Have a son or daughter placed with them for adoption or foster care.

This limit applies even if the spouses work in different locations or for different operating divisions of the employer. +29 C.F.R. § 825.121 (a)(3). Once the child is placed with the employee, use of intermittent leave or reduced schedule leave to bond with a child placed with the employee through adoption or foster care may only be taken if the employer agrees. +29 C.F.R. § 825.121 (b).

Military Exigency Leave

Who Can Take Military Exigency Leave?

Military (or qualifying) exigency leave is available to an employee whose spouse, son, daughter or parent (the military member) is on covered active duty in the Armed Forces (or has been notified of an impending call or order to covered active duty) and who needs to take time away from work to make various practical arrangements as a result of that status.

Covered active dutyas defined in the FMLA means:

  • In the case of a member of a regular component of the Armed Forces, duty during the deployment of the member with the Armed Forces to a foreign country; and
  • In the case of a member of the reserve component of the Armed Forces, duty during the deployment of the member with the Armed Forces to a foreign country under various statutes found at Title 10 of the US Code which authorize the federal government to call up members of the Armed Forces in support of "contingency operations." State calls to active duty are not covered. These statutes include provisions which permit:
    • Ordering to active duty retired members of the Regular Armed Forces and members of the retired Reserve who retired after completing at least 20 years of active service;
    • Ordering all reserve component members to active duty in the case of war or national emergency;
    • Ordering any unit or unassigned member of the Ready Reserve to active duty;
    • Ordering any unit or unassigned member of the Selected Reserve and certain members of the Individual Ready Reserve to active duty;
    • The suspension of promotion, retirement or separation rules for certain Reserve components; and
    • Calling the National Guard into federal service in certain circumstances;
    • Calling the National Guard and state military into federal service in case of insurrections and national emergencies; or
    • Any other provision of law during a war or during a national emergency declared by the President or Congress so long as it is in support of a contingency operation.

+29 C.F.R. § 825.126 (a)(1); +29 C.F.R. § 825.126 (a)(2).

The active duty orders of military members will usually specify whether or not the member is serving in support of a contingency operation by citing the section of Title 10 of the US Code under which the member is being called or by the specific name of the military operation. +29 C.F.R. § 825.126 (a)(2)(ii).

A contingency operation is a military operation:

  • Designated by the Secretary of Defense as an operation in which members of the armed forces are or may become involved in military actions, operations, or hostilities against an enemy of the US or against an opposing military force; or which
  • Results in the call or order to, or retention on, active duty of members of the uniformed services under the laws which permit the call to active duty under the provisions of various sections of Title 10 of the US Code.

+29 C.F.R. § 825.102 .

Who Is a Military Member?

Military exigency leave is available to employees related to a military member who is a member of the Regular Armed Forces or a reserve component of the Armed Forces.

Reserve components include:

  • The US Army National Guard;
  • The Army Reserve;
  • Navy Reserve;
  • Marine Corps Reserve;
  • US Air National Guard;
  • Air Force Reserve;
  • Coast Guard Reserve; and
  • Retired members of the Regular Armed Forces or Reserves who are called up in support of a contingency operation.

+29 C.F.R. § 825.126 (a)(1); +29 C.F.R. § 825.126 (a)(2). See also Fact Sheet #28M(c):Qualifying Exigency Leave under the Family and Medical Leave Act.

Circumstances Where Military Exigency Leave May Be Taken

If an eligible employee's spouse, son, daughter or parent is a military member on covered active duty status or call to covered active duty status, the employee may take FMLA leave under the following nine circumstances:

  1. Short-notice deployment;
  2. Military events and related activities;
  3. Childcare and school activities;
  4. Financial and legal arrangements;
  5. Counseling;
  6. Rest and recuperation;
  7. Post-deployment activities;
  8. Parental care; and
  9. Additional activities.

+29 C.F.R. § 825.126 (b).

Time off for short-notice deployment covers issues that arise because the military member is notified of an impending call or order to covered active duty seven or less calendar days prior to the deployment date. Leave for this reason can be used for seven calendar days beginning on the date the military member is notified of the deployment on short notice. +29 C.F.R. § 825.126 (b)(1).

Time off for military events and related activities is provided to attend any official ceremony, program or event sponsored by the military that is related to the covered active duty or call to covered active duty status. Time off to attend family support or assistance programs and informational briefings sponsored or promoted by the military, military service organizations, or the American Red Cross that are related to the covered active duty or call to covered active duty status is also covered. +29 C.F.R. § 825.126 (b)(2).

Time off related to childcare and school activities is provided when the covered active duty or call to covered active duty status requires:

  • A change in the existing childcare arrangement for a military member's son or daughter;
  • That arrangement for alternative childcare be made;
  • The need to provide childcare on an urgent, immediate need basis;
  • Enrollment in or a transfer to a new school or day care facility; or
  • Attendance at meetings, such as disciplinary meetings, parent-teacher conferences or school counselor meetings, with staff at a school or daycare facility.

+29 C.F.R. § 825.126 (b)(3).

Time off to attend to financial and legal arrangements is provided to make or update financial or legal arrangements addressing the military member's absence. Activities qualifying for time off include:

  • Preparing and executing financial and health care powers of attorney;
  • Transferring bank account signature authority;
  • Enrolling in the Defense Enrollment Eligibility Reporting System (DEERS);
  • Obtaining military identification cards;
  • Preparing or updating a will or living trust; or
  • Acting as the military member's representative before a federal, state, or local agency for obtaining, arranging or appealing military service benefits while the military member is on covered active duty or call to covered active duty status and for up to 90 days following the termination of covered active duty status.

+29 C.F.R. § 825.126 (a)(4)

Time off is also provided to attend counseling by someone other than a health care provider for the employee, the military member or the son or daughter of the military member, so long as the need for counseling arises from the covered active duty or call to covered active duty status of the military member. +29 C.F.R. § 825.126 (a)(5).

Rest and recuperation time off of up to 15 calendar days is provided to spend time with a military member each time the military member is on short-term, temporary, rest and recuperation leave during deployment. +29 C.F.R. § 825.126 (b)(6).

Time off up to 90 days following the termination of the military member's covered active duty status for post-deployment activities is permitted. Post-deployment activities include:

  • Attending arrival ceremonies;
  • Attending reintegration briefings and events;
  • Attending any other official ceremony or program sponsored by the military; and
  • Addressing issues arising from the death of a military member while on covered active duty status, such as meeting and recovering the body, making funeral arrangements and attending funeral services.

+29 C.F.R. § 825.126 (b)(7)(i)-(ii).

Time off to provide the following types of parental care to the parent of a military member who is incapable of self-care:

  • To arrange for alternative care for the parent and the covered active duty status or call to covered active duty status of the military member necessitates a change in the existing care arrangement;
  • To provide care for the parent on an emergency basis (but not on a routine, regular, or everyday basis) where the need for care arises out of the covered active duty status or call to covered active duty status of the military member;
  • To admit or transfer the parent to a care facility when admittance or transfer is prompted by the covered active duty status of the military member; or
  • To attend meetings (not including routine or regular meetings) with staff at a care facility where the need for such meetings arises out of the covered active duty status or call to covered active duty status of the military member.

+29 C.F.R. § 825.126 (b)(8)

The FMLA also provides a "catch all" category related to military exigency leave. Under this "catch all" category of additional activities, time off is provided to address other events which arise out of the military member's covered active duty or call to covered active duty status if the employer and employee agree that such leave qualifies as an exigency and agree to the timing and duration of the leave. +29 C.F.R. § 825.126 (b)(9).

Practical Example

Rusty's son, Adam, is in the Navy and was recently called to active duty. Adam's daughter, Rusty's granddaughter, has the flu and must stay home from school. Rusty provides his employer with a copy of the orders showing Adam's call to duty and may use military exigency leave under the FMLA to care for his granddaughter during her illness.

Certification Requirements for Military Exigency Leave

The first time that an employee requests military exigency leave because of the covered active duty or call to covered active duty of a military member, the employer may require that the employee provide a copy of the orders showing the call to duty in support of a contingency operation and the duration of the military service. Copies of new covered active duty orders may be required if a new leave is requested for another call to duty or for another military member. +29 C.F.R. § 825.309 (a). See Content of Certification of Military Exigency Leave.

The employer may also require that an employee requesting military exigency leave provide a certification of the information described below. The DOL provides Form WH-384 which may, but need not, be used for certification of the need for military exigency leave. +29 C.F.R. § 825.309 (c). The employer may not require more information than:

  • A statement, signed by the employee, showing the facts regarding the qualifying exigency, and any available written documentation supporting the need for leave. For example, a copy of a meeting announcement for an informational briefing, a letter confirming an appointment with a school official, etc.;
  • The approximate date the exigency commenced or will commence;
  • The beginning and end dates of any request for a single, continuous, period of leave;
  • An estimate of the frequency and duration of intermittent or reduced schedule leave;
  • Contact information for any third party with whom the employee will be meeting and a brief description of the purpose of the meeting; and
  • A copy of the military member's Rest and Recuperation orders, if applicable, or other documentation issued by the military indicating that the military member has been granted rest and recuperation leave, and the dates of the military member's rest and recuperation leave.

+29 C.F.R. § 825.309 (b). See Content of Certification of Military Exigency Leave.

Verification of Military Exigency Leave Requests

An employer may contact the third party to verify the meeting schedule and the nature of the meeting. In addition, the employer may also contact the Department of Defense to verify that a military member is on covered active duty or call to covered active duty status. The employer does not need the employee's permission to contact third parties or the Department of Defense; however, the employer may not request additional information than what is permitted by the regulations. +29 C.F.R. § 825.309 (d).

Military Caregiver Leave

Who Is a Covered Servicemember?

A covered servicemember is:

  • A current member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in an outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness; or
  • A covered veteran who is undergoing medical treatment, recuperation or therapy for a serious injury or illness.

29 U.S.C. § 2611(15); +29 C.F.R. § 825.102; +29 C.F.R. § 825.127(b). See also Fact Sheet 28M(a): Military Caregiver Leave for a Current Servicemember under the Family and Medical Leave Act; Fact Sheet 28M(b): Military Caregiver Leave for a Veteran under the Family and Medical Leave Act.

Who Can Take Military Caregiver Leave?

The spouse, son, daughter, parent and next of kin of a covered servicemember may take 26 workweeks of leave in a single 12-month period to care for a covered servicemember with a serious illness or injury. +29 C.F.R. § 825.127 (d), (e).

The son or daughter of a covered servicemember includes:

  • A biological son or daughter:
  • Adopted and foster sons and daughters;
  • Step children;
  • Legal wards; and
  • Persons for whom the servicemember acted in loco parentis.

The son or daughter may be of any age. +29 C.F.R. § 825.122 (i).

A parent of a covered servicemember includes:

  • A biological parent;
  • An adopted and/or foster parent; and
  • Anyone who stood in loco parentis to the servicemember.

It does not include "in-laws." +29 C.F.R. § 825.122 (i).

The next of kin of a covered servicemember is that person's nearest blood relative, other than their spouse, parent, son or daughter. The servicemember may designate one blood relative to be his or her "next of kin" for purposes of caregiver leave. If no designation is made, then the next of kin is determined in the following order: a blood relative who has been granted legal custody of the servicemember, brothers and sisters, grandparents, aunts and uncles, and first cousins. When there are multiple family members with the same degree of relationship to the servicemember they are all next of kin and may take FMLA leave simultaneously or consecutively. +29 C.F.R. § 825.122 (e).

An employer may require reasonable documentation of the family relationship that forms the basis for a leave. A simple statement of the relationship from the employee is sufficient. If the employee provides other documents, such as an official court document or a birth certificate, the employer may examine the document but must return it to the employee. +29 C.F.R. § 825.122 (k).

Circumstances Where Military Caregiver Leave Can Be Taken

The spouse, son, daughter, parent and next of kin of a covered servicemember may take 26 workweeks of leave in a single 12-month period to care for a covered servicemember with a serious illness or injury. +29 C.F.R. § 825.127 . The single 12-month period begins on the first day of leave and ends 12 months later, regardless of which 12-month period the employer uses to measure other forms of FMLA leave. +29 C.F.R. § 825.127 (e)(1).

Military caregiver leave is available on a per covered service member, per injury basis. +29 C.F.R. § 825.127 (e)(2). Different leaves may be taken to care for different servicemembers or for one servicemember who suffers from both an initial and a subsequent serious illness or injury. The "12-month periods" for these leaves may overlap. When they do, the employee may take no more than 26 weeks of leave in each "single 12-month period." This 26-workweek limitation includes leave the employee may take for other qualifying FMLA reasons. +29 C.F.R. § 825.127 (e)(3). See Calculating and Tracking Leave.

Practical Example

Rick may take 21 workweeks of leave to care for his wife, a servicemember who has suffered a serious injury on active duty in the National Guard. Rick may also take five workweeks to provide assistance to his father who is receiving chemotherapy treatments for cancer, within the 12-month period beginning on the day he first took leave to care for his wife.

In cases where the leave could qualify as both leave to care for a family member with a serious health condition and leave to care for a covered servicemember, it must be designated as leave to care for a servicemember. +29 C.F.R. § 825.127 (e)(4). In the example above, the employer must designate the employee's leave to care for his wife as leave to care for a servicemember with a serious injury or illness. The employer cannot also designate the time to care for the employee's wife as leave to care for a family member with a serious health condition.

If spouses (including same-sex spouses) both work for the same employer and both are eligible to take FMLA leave, they may use a combined total of 26 workweeks in a "single 12-month period" for the following reasons:

  • Birth or placement of a child for adoption or foster care and to care for that child;
  • To care for the employee's parent who has a serious health condition; and
  • To care for a covered servicemember with a serious injury or illness.

+29 C.F.R. § 825.127 (f). If both spouses work for the same covered employer, but only one spouse is eligible to take FMLA leave and the other is not (for example, one has worked for the employer for 12 months and the other has not), then the eligible employee may take a full 26 workweeks of leave. +29 C.F.R. § 825.127 (f).

Certification Requirements for Military Caregiver Leave

A certification to support military caregiver leave may require the following information from the health care provider that completes the certification:

  • The name, address, and contact information of the health care provider, the type of medical practice and/or medical specialty, and whether the health care provider is:
    • A US Department of Defense (DOD) health care provider;
    • A US Department of Veterans Affairs (VA) health care provider;
    • A DOD TRICARE network authorized private health care provider;
    • A DOD non-network TRICARE authorized private health care provider; or
    • A health care provider as defined by the FMLA's regulations.
  • Whether the covered servicemember's injury or illness was incurred or aggravated in the line of duty on active duty;
  • The approximate date on which the serious injury or illness began, or was aggravated, and its probable duration;
  • Enough information to establish that the covered servicemember is in need of care;
  • Whether care is needed for a single, continuous period of time (including time for treatment and recovery);
  • An estimate of the beginning and ending dates for which the servicemember will need care;
  • Information to establish the medical need for any requested intermittent leave or reduced schedule leave to care for a servicemember for planned medical treatments and an estimate of the treatment schedule;
  • Information to establish the medical necessity of intermittent leave or reduced schedule leave if requested to care for a servicemember other than for planned medical treatment (for example, for episodic flare-ups of a medical condition) and estimate of the frequency and duration of the need for periodic care.

+29 C.F.R. § 825.310 (b)(1)-(3); +29 C.F.R. § 825.310 (b)(5)-(7).

The certification also may require the health care provider to list sufficient medical facts regarding the covered servicemember's injury or illness to support the need for leave. +29 C.F.R. § 825.310 (b)(4).

A certification to support military caregiver leave also may require the following information from the employee and/or covered servicemember:

  • The name and address of the employer of the employee requesting leave;
  • The name of the employee requesting leave;
  • The name of the covered servicemember;
  • The relationship of the employee to the covered servicemember;
  • Whether the covered servicemember is a current member of the Armed Forces, the National Guard or Reserves, and the covered servicemember's military branch, rank, and current unit assignment;
  • Whether the covered servicemember is assigned to a military medical facility as an outpatient or to a unit established for the purpose of providing command and control of members of the Armed Forces receiving medical care as outpatients (for example, a medical hold or warrior transition unit) and the name of the facility or unit;
  • Whether the covered servicemember is on the temporary disability retired list;
  • Whether the covered servicemember is a veteran, the date of separation from military service, and whether the separation was other than dishonorable, including documentation issued by the military supporting such facts; and
  • A description of the care to be provided to the covered servicemember and an estimate of the leave needed to provide the care.

+29 C.F.R. § 825.310 (c)(1)-(7).

For more information on the certification requirements for military caregiver leave, please See Content of Certification of Leave to Care for a Covered Servicemember With a Serious Injury or Illness.

FMLA's Military Leaves - Distinction from USERRA

An employer should be aware that the FMLA's military leaves (military exigency and caregiver leave) have different requirements and obligations from the Uniformed Services Employment and Reemployment Rights Act (USERRA). For more information on these differences, please see The Bermuda Triangle Has Expanded: The FMLA's Intersection with the ADA, Workers' Compensation and More.

Requesting Certification of the Need for Leave

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:

  • A serious health condition of the employee or a family member;
  • A serious injury or illness of a covered military servicemember; or
  • A qualifying exigency arising out of active duty or call to active duty status (for military exigency leave).

+29 C.F.R. § 825.305 ; +29 C.F.R. § 825.309 ; +29 C.F.R. § 825.310 .

An employer may also require the employee to certify the family relationships that form the basis of certain types of leave, though the employee may satisfy that requirement by a simple statement of the family relationships. +29 C.F.R. § 825.122 (k); +29 C.F.R. § 825.310 (d); +29 C.F.R. § 825.310 (e)(3).

Required Notice of Certification Requirement

If an employer requires certification of the need for leave, it must include that requirement, and any consequences of a failure to provide certification, in the eligibility notice and the rights and responsibilities notice to the employee. +29 C.F.R. § 825.300 (c)(1)(ii). See Rights and Responsibilities Notice; Eligibility Notice to Employee. In most cases, an employer must provide that notice to the employee within five business days of the employee's request for leave or the employer's knowledge that the employee's leave may qualify as FMLA leave. +29 C.F.R. § 825.300 (c)(1).

An employer must provide the first notice of a certification requirement in writing. Any later request can be made verbally.

Time for Employee to Provide Certification

An employee who is required to provide a certification in connection with a request for FMLA leave must provide the required certification within 15 calendar days after the employer's request, unless:

  • It is not practicable to do so despite the employee's diligent, good faith efforts; or
  • The employer provides a longer time for presentation of the certification;

+29 C.F.R. § 825.305 (b). See Untimely Return of Certification.

Content of Certification of the Employee's Serious Health Condition or the Serious Health Condition of an Employee's Family Member

When the certification is requested to substantiate that the employee or a family member has a serious health condition, the employer may require that the employee present a certification showing the medical facts supporting the need for leave. To be complete, the certification must include:

  • The name, address, phone number, fax number and type of specialization or practice of the health care provider;
  • The approximate date the serious health condition began and its probable duration;
  • Appropriate medical facts to support the leave - symptoms, diagnosis, hospitalization, doctor visits, whether medication is prescribed, referrals for evaluation or treatment (e.g. physical therapy) and any regimen for continuing treatment;
  • If the patient is the employee's family member - enough information to establish the need for care, and an estimate of the frequency and duration of leave needed for care;
  • If patient is the employee - enough information to establish the employee cannot perform the essential functions of the job, the nature of any other work restrictions and likely duration of the inability;
  • If the leave requested is intermittent or reduced schedule leave for planned medical treatment, enough information to establish the need for intermittent or reduced schedule leave and an estimate of the dates and duration of the planned treatments and any periods of recovery;
  • If leave is for the employee's own health condition, including pregnancy, that may result in unforeseeable episodes of incapacity - enough information to establish the medical necessity for the intermittent or reduced schedule leave and estimates of the frequency and duration of episodes of incapacity; and
  • If the leave requested is intermittent or reduced schedule leave to care for a family member with a serious health condition - enough information to establish the medical necessity for the intermittent or reduced schedule leave (including assistance with the family member's recovery) and estimates of the frequency and duration of leave.

+29 C.F.R. § 825.306 (a)(1)-(8). See also Fact Sheet #28G: Certification of a Serious Health Condition under the Family and Medical Leave Act.

An employer should include the GINA Safe Harbor Statement with the medical certification (including those for family member's serious health condition) to alert the health care provider to not provide any genetic information when responding to the certification request. See Communicating With Health Care Provider.

An employer may seek authentication or verification of the certification for an employee's or a family member's serious health condition. Further, an employer may also seek a second or third opinion, as well as recertification of the need for leave. See Employer Challenges to Certifications.

An employer should take care to determine whether state or local laws limit the amount of medical information they can require in a certification to substantiate the need for leave. Some jurisdictions, for example, have laws that provide very similar leaves, but allow an employer only to require certification of the existence of a serious health condition, not the underlying medical facts that describe that condition or the diagnosis. See State Requirements.

An employee's serious health condition may also be a disability within the meaning of the ADA. Nothing in the FMLA prevents an employer from following ADA procedures to obtain medical information needed for the interactive process to determine whether and what sort of reasonable accommodation may be made to permit the employee to perform the essential functions of his or her job. Such information may be also considered in deciding if the employee is entitled to FMLA leave. +29 C.F.R. § 825.306 (d). See The Bermuda Triangle Has Expanded: The FMLA's Intersection with the ADA, Workers' Compensation and More.

Health Care Providers Who May Prepare a Certification of an Employee's or Employee's Family Member's Serious Health Condition

An employer may require that the employee's certification be from the patient's health care provider. The FMLA broadly defines health care provider. The definition includes the following, so long as the health care provider is licensed by the state in which he or she practices and is practicing within the scope of his or her license:

  • Doctors of medicine or osteopathy;
  • Podiatrists;
  • Dentists;
  • Clinical psychologists;
  • Optometrists;
  • Chiropractors (limited to treatment consisting of manual manipulation of the spine to correct a subluxation shown by X-ray);
  • Nurse practitioners;
  • Nurse-midwives;
  • Clinical social workers;
  • Physician assistants; and
  • Christian Science Practitioners listed with the First Church of Christ, Scientist, Boston, Massachusetts.

+29 C.F.R. § 825.125 (b)(1)-(3).

Practical Example

Maryann fell sliding into home plate at her intramural baseball game. The next day her back was hurting her and she went to her chiropractor. Maryann's chiropractor took an X-ray of her back and determined that she had a soft tissue injury, no subluxation. Upon return to work, Maryann requested FMLA leave to deal with her serious health condition, a hurt back. In support of her request she had her chiropractor fill out her certification. Maryann's employer would not have to accept Maryann's certification from her chiropractor since he was treating her for a soft tissue injury and not a manual manipulation of her spine.

If an employer receives a certification from a Christian Science Practitioner listed with the First Church of Christ, Scientist in Boston, the employer can seek a second or third opinion from another health care provider unless prohibited by state or local law or a collective bargaining agreement. See State Requirements.

A health care provider may also include:

  • A provider whose certification will be accepted in a claim for benefits under the employer's group health care plan; and
  • Providers of the sort listed above who are licensed and practice in a country other than the US, so long as they are practicing within the scope of their license.

+29 C.F.R. § 825.125 (b)(4)-(5); +29 C.F.R. § 825.125 (c).

Content of Certification of Leave to Care for a Covered Servicemember With a Serious Injury or Illness

A certification to support military caregiver leave may require the following information:

  • The name, address and contact information of the health care provider, the type of medical practice and/or medical specialty;
  • Whether the covered servicemember's injury or illness was incurred in the line of duty on active duty;
  • The approximate date on which the serious injury or illness began and its probable duration;
  • Enough information to establish that the covered servicemember is in need of care;
  • Whether care is needed for a single, continuous period of time;
  • Whether the need for care includes any time for treatment and recovery;
  • An estimate of the beginning and ending dates for which the servicemember will need care;
  • Information to establish the medical need for any requested intermittent leave or reduced schedule leave to care for a servicemember for planned medical treatments and an estimate of the treatment schedule;
  • Information to establish the medical necessity of intermittent leave or reduced schedule leave if requested to care for a servicemember other than for planned medical treatment (for example, for episodic flare-ups of a medical condition) and estimate of the frequency and duration of the need for periodic care.

+29 C.F.R. § 825.310 (b)(1)-(3), (5)-(7).

The certification also may require the health care provider to list sufficient medical facts regarding the covered servicemember's injury or illness to support the need for leave.

If the covered servicemember is a current member of the Armed Forces, these facts must include information on whether or not the injury or illness may render the covered servicemember medically unfit to perform the duties of the servicemember's office, grade, rank or rating, and whether the servicemember is receiving medical treatment, recuperation or therapy. +29 C.F.R. § 825.310 (b)(4)(i).

If the covered servicemember is a veteran, these facts must include:

  • Information on whether the veteran is receiving medical treatment, recuperation, or therapy for an injury or illness that is the continuation of an injury or illness that was incurred or aggravated when the covered veteran was a member of the Armed Forces and rendered the servicemember medically unfit to perform the duties of the servicemember's office, grade, rank or rating; or
  • Information on whether the veteran is receiving medical treatment, recuperation or therapy for an injury or illness that is a physical or mental condition for which the covered veteran has received a U.S. Department of Veterans Affairs Service-Related Disability Rating (VASRD) of 50 percent or greater, and that such VASRD rating is based, in whole or in part, on the condition precipitating the need for military caregiver leave; or
  • Information on whether the veteran is receiving medical treatment, recuperation or therapy for an injury or illness that is a physical or mental condition that substantially impairs the covered veteran's ability to secure or follow a substantially gainful occupation by reason of a disability or disabilities related to military service, or would do so absent treatment; or
  • Documentation of enrollment in the Department of Veterans Affairs Program of Comprehensive Assistance for Family Caregivers.

+29 C.F.R. § 825.310 (b)(4)(ii)(A)-(D).

Finally, the certification must also indicate whether it was completed by:

  • A US Department of Veterans Affairs (VA) health care provider;
  • A US Department of Defense (DOD) health care provider;
  • A DOD TRICARE network authorized private health care provider;
  • A DOD non-network TRICARE authorized private health care provider; or
  • A health care provider as defined by the FMLA's regulations.

+29 C.F.R. § 825.310 (b)(1)(i)-(v).

A health care provider who is not able to make the required military-related determinations may rely on a determination from an authorized DOD representative, such as a DOD recovery care coordinator. The military-related determinations are whether the injury or illness may render the servicemember medically unfit to perform the duties of his or her office, grade, rank or rating. +29 C.F.R. § 825.310 (b).

In addition, an employer may also require that the certification include the following information to be provided by the employee and/or the covered servicemember:

  • The name and address of the employer of the employee requesting leave;
  • The name of the employee requesting leave;
  • The name of the covered servicemember;
  • The relationship of the employee to the covered servicemember;
  • Whether the covered servicemember is a current member of the Armed Forces, the National Guard or Reserves, and the covered servicemember's military branch, rank, and current unit assignment;
  • Whether the covered servicemember is assigned to a military medical facility as an outpatient or to a unit established for the purpose of providing command and control of members of the Armed Forces receiving medical care as outpatients (for example, a medical hold or warrior transition unit) and the name of the facility or unit;
  • Whether the covered servicemember is on the temporary disability retired list;
  • Whether the covered servicemember is a veteran, the date of separation from military service, and whether the separation was other than dishonorable, including documentation issued by the military supporting such facts; and
  • A description of the care to be provided to the covered servicemember and an estimate of the leave needed to provide the care.

+29 C.F.R. § 825.310 (c)(1)-(7).

The DOL has created Form WH-385 which may, but need not, be used for certification of the need for military caregiver leave to care for a current covered servicemember.

The DOL has created a separate certification form - Form WH-385-V - which employers may, but need not, use for certification of the need for military caregiver leave to care for a veteran who is a covered servicemember.

An employer may seek authentication or verification of the certification for military caregiver leave. See Employer Challenges to Certifications. In contrast to certifications of serious health conditions, an employer may not seek recertification of the need for military caregiver leave. +29 C.F.R. § 825.310 (d); +29 C.F.R. § 825.310 (e)(2). See New Certifications and Medical Recertification During FMLA Leave.

An employer may not seek a second or third opinion of a military caregiver leave certification that is completed by a:

  • United States DOD health care provider;
  • United States VA health care provider;
  • DOD TRICARE network authorized private health care provider; or
  • DOD non-network TRICARE authorized private health care provider.

In addition, a second or third opinion is not allowed when the employee submits an Invitational Travel Order or Invitational Travel Authorization in lieu of a certification. +29 C.F.R. § 825.310 (d); +29 C.F.R. § 825.310 (e)(2).

An employer is permitted to seek a second or third opinion of military caregiver leave certifications completed by other authorized health care providers. +29 C.F.R. § 825.310 (d). An employer also may require a new certification for a further leave if the servicemember suffers a subsequent injury or illness, or if the employee requests another leave to care for a different servicemember.

Health Care Providers Who May Prepare a Certification for the Serious Injury or Illness of a Covered Servicemember

Certification for military caregiver leave requires a determination as to whether a covered servicemember is able to perform the duties of his or her office, grade, rank or rating. Due to this specialized determination, the FMLA identifies a shorter list of health care providerswho may certify the need for military caregiver leave:

  • A US Department of Defense (DOD) health care provider;
  • A US Department of Veterans Affairs (VA) health care provider;
  • A DOD TRICARE network authorized private health care provider;
  • A DOD non-network TRICARE authorized private health care provider; or
  • Any health care provider as defined by the FMLA's regulations.

+29 C.F.R. § 825.310 (a)(1)-(5).

Invitational Travel Orders and Invitational Travel Authorizations

Invitational travel orders (ITOs) and invitational travel authorizations (ITAs) are issued to family members to join injured or ill servicemembers at their bedsides. They are sufficient, standing alone, to establish the basis for military caregiver leave for any dates within the period of time stated on the ITO or ITA. An employee may choose to take leave in a continuous block of time or on an intermittent or reduced schedule basis for any dates within the time period stated on the ITO or ITA. +29 C.F.R. § 825.310 (e).

If an employee presents an ITA or ITO, the employer must accept that document as sufficient proof of the employee's entitlement to leave. This is true whether or not the employee is named in the ITO or ITA. +29 C.F.R. § 825.310 (e).

An employer may act to authenticate or clarify an ITO or ITA. +29 C.F.R. § 825.310 (e)(2). See Employer Challenges to Certifications. An employer may also require that an employee presenting an ITO or ITA provide confirmation of his or her family relationship to the covered servicemember. +29 CFR § 825.310 (e)(3).

If an employee needs leave to care for a covered servicemember for a period longer than the time frame stated on ITO or ITA, the employer may require that an authorized health care provider complete a certification of the need for additional leave time.

Content of Certification of Military Exigency Leave

When an employee requests a military exigency leave, the employer may require the following proof/certification of the need for leave:

  • A copy of active duty orders; or
  • Other documentation issued by the military indicating that the military member is on covered active duty or call to covered active duty status.

+29 C.F.R. § 825.309 (a).

Additional information that an employer may seek in response to an employee's request for military exigency leave includes:

  • A signed statement from the employee seeking leave that provides appropriate facts supporting the reason for leave;
  • Any available documentation that supports the need for leave, such as the announcement of a military sponsored informational briefing, a document confirming meetings with school officials, or legal or financial services bills,
  • The approximate date on which the qualifying exigency began or is expected to begin;
  • If the request for leave is for a single, continuous period of time, the beginning and ending dates of the absence;
  • If the request is for leave on an intermittent or reduced schedule basis, an estimate of the frequency and duration of the qualifying exigency;
  • If the leave is needed to meet with a third party (e.g., school meetings), appropriate contact information for the person or entity involved in the meeting and a brief description of the reason for the meeting (in these situations the employee's permission is not required, however no additional information can be sought); and
  • If the leave is for rest and recuperation leave, a copy of the military member's Rest and Recuperation orders, or other documentation issued by the military which indicates that the military member has been granted rest and recuperation leave, and the dates of the military member's rest and recuperation leave.

+29 C.F.R. § 825.309 (b)(1)-(6).

Exigencies that qualify for leave include the following types of activities when made necessary by the family member's covered active duty status or call to covered active duty status:

  • Short notice deployment;
  • Military events and activities;
  • Childcare and school activities;
  • Financial and legal arrangements;
  • Counseling;
  • Rest and recuperation;
  • Post-deployment activities;
  • Parental care; and
  • Additional activities.

+29 C.F.R. § 825.126 .

If an employee submits a complete and sufficient certification supporting a military exigency leave, the employer cannot request additional information from the employee. +29 C.F.R. § 825.305 (c). However, if the certification is not complete or if the information supplied is vague, ambiguous, or does not respond to the questions on the form, the employer should send the employee a designation notice explaining which items are incomplete or unclear. The employee must cure the noted defects within seven days - unless it is not practicable to do so despite the employee's diligent good-faith efforts. If the employee does not cure the defects, the employer may deny the leave. +29 CFR § 825.313 .

If the qualifying exigency involves meeting with a third party, the employer can contact the individual or entity the employee claims to be meeting to verify a meeting or appointment schedule and the nature of the meeting. An employer can also contact an appropriate unit of the DOD to verify that a military member is on covered active duty or call to covered active duty status. The employer does not need the employee's permission to make these contacts; however, no additional information, outside of the information referenced above, can be sought. +29 CFR § 825.309 (d).

Other Forms of Certification

Recertification

An employer may request recertification only for leave for an employee's own serious health condition or to care for a family member with a serious health condition. The employee pays for the recertification and must provide the requested recertification within the time frame requested by the employer, unless that is not practicable even with diligent, good-faith efforts by the employee. The employer must allow at least 15 days for the employee to provide the recertification. No second or third opinions are permitted on a recertification. +29 C.F.R. § 825.308 . Recertification is different, however, than a new certification to support the leave if such leave continues into a new leave year. See New Certifications and Medical Recertification During FMLA Leave.

New Certifications

If an employee's need for leave for the employee's own serious health condition or for the serious health condition of a family member extends beyond the employer's leave year, the employer may require that the employee submit a new medical certification. These new medical certifications are subject to the provisions for second and third opinions and the rules on authentication and clarification. +29 C.F.R. § 825.305 (e). See New Certifications and Medical Recertification During FMLA Leave; Employer Challenges to Certifications.

Fitness-for-Duty Certifications

If the leave is for the employee's own serious health condition, the employer may require the employee to present a fitness-for-duty certification before returning to work. The employer must provide notice of this requirement in the designation notice. See Reinstating Employees Returning from FMLA Leave; Return to Work or Fitness-for-Duty Certification.

The employer may require that the fitness-for duty certification state whether the employee can perform the essential functions of his or her job. If so, the employer must include a list of the essential functions along with the designation notice. +29 C.F.R. § 825.300 (d)(3).

Types of Certification Forms

The DOL's Forms

The DOL has developed five optional forms that may be used to obtain certification of:

  1. An employee's own serious health condition (Form WH-380E);
  2. The serious health condition of an employee's family member (Form WH-380F);
  3. The need for time off due to a qualifying exigency (Form WH-384);
  4. The serious illness or injury of a covered servicemember who is a current member of the Armed Forces (Form WH-385); and
  5. The serious illness or injury of a covered servicemember who is a covered veteran (Form WH-385-V).

These forms are designed to assist an employer in obtaining the information specified in the FMLA regulations as being pertinent to certifying the employee's need for leave. An employer need not use the DOL certification forms. However, if an employer wishes to develop its own forms, it should take care to seek only the information permitted by law.

In addition, several states require an employer to provide an employee with a certain amount of leave if the employee has a spouse or other family member serving in the military. These state laws are similar to the FMLA military leave provisions; however, they may have some differences, such as:

  • Coverage of different family relationships (such as domestic partners);
  • More lenient eligibility requirements;
  • Different ways in which an employee can qualify for leave; and
  • Greater leave rights (such as greater length of leave or paid leave).

Because of state requirements, an employer should be careful to conform its certifications to federal and state requirements. In addition, any employer-created certification form(s) cannot go beyond the scope of the DOL's form. See State Requirements.

Employer Challenges to Certifications

It is important that an employer receive complete and clear certification forms from all employees seeking FMLA leave. A health care provider's medical certification is an essential tool for an employer when an employee claims that the employer unlawfully denied his or her FMLA leave request and to combat fraud and abuse. Because of this, an employer should remain diligent about authenticating, clarifying, validating and timely seeking all FMLA certifications.

No Certification Returned

If an employer notifies an employee of the potential consequences for failing to provide certification at the time the employer requests certification from the employee, the employer can deny FMLA leave to:

  • An employee who fails to provide a certification supporting the need for FMLA leave; or
  • An employee who fails to provide the employer with a complete and sufficient certification after being given an opportunity to cure an incomplete or insufficient certification.

+29 C.F.R. § 825.305 (d). See Requesting Certification of the Need for Leave; Eligibility Notice to Employee; Rights and Responsibilities Notice.

Untimely Return of Certification

An employer may find itself in a situation where an employee provides a certification, but fails to provide it in a timely manner. An employee's failure to timely provide the certification is only excused if, despite the employee's diligent and good-faith efforts, providing the certification in the required timeframe is not practicable under the circumstances. +29 C.F.R. § 825.305 (b). In such a situation, the FMLA regulations allow an employer to treat the leave as non-FMLA leave or to deny FMLA coverage until the required certification is provided. In addition, the FMLA provides an employer with specific remedies depending on whether the situation involves foreseeable or unforeseeable leave. +29 C.F.R. § 825.313 .

Foreseeable Leave

In cases of foreseeable leave, an employee is allowed 15 calendar days to provide a complete and sufficient certification. An employer can deny FMLA coverage until an employee submits the required certification if the employee fails to timely submit a certification and takes leave during the time period when no certification was provided. +29 C.F.R. § 825.313 (a).

Practical Example

On August 1, Scott asks to take FMLA leave beginning on August 16. On the same day, Acme Co. requests certification and allows Scott 15 calendar days to submit the certification. Scott does not provide the certification until 25 days from the date certification was requested (August 26). He also does not claim that, despite his best efforts, he was unable to obtain the requested certification. As a result, Acme Co. may deny FMLA coverage for the period of time after the 15 day period expired until the date the certification was provided. In other words, Acme Co. could count as non-FMLA leave the period of time starting on the day after the 15 day period expired (August 16) until the day the actual certification was submitted (August 25).

An employer can give employees more than 15 days to provide a certification under its FMLA policy; however, an employer must consistently grant such extensions.

Unforeseeable Leave

In cases of unforeseeable leave, the 15 calendar day requirement for providing certification of the need for leave still applies. However, given the unpredictable nature of unforeseeable leave, an employee's failure to submit the certification by the 15 calendar day deadline may be excused by extenuating circumstances. In essence, the employee must show that it was not practicable to meet the 15 calendar day deadline due to the extenuating circumstances. Accordingly, an employer should evaluate whether or not extenuating circumstances made it impossible for an employee to provide certification within the 15 calendar day time period. If no such extenuating circumstances exist, an employer can deny FMLA coverage for the time period after the 15 calendar day period has expired until the employee brings in a sufficient certification.

The regulations specifically suggest that it may not be reasonable for an employee to meet the 15 calendar day requirement when the employee experiences a medical emergency. In such cases an employer may need to grant an employee an extension of time to provide the certification. If the employee fails to provide a certification at all, the employer does not have to count the leave as FMLA leave. +29 C.F.R. § 825.313 (b).

Practical Example

Michael discovers that he must have an unexpected surgery tomorrow due to a serious health condition. He immediately provides his employer, Acme Warehouse, with notice of his need for FMLA leave. That same day, Acme requests that Michael provide certification of his serious health condition within 15 calendar days of Acme's request. After surgery, Michael suffers complications that require him to be sedated off and on for the next 3 weeks. Once he is no longer sedated, Michael submits the certification to Acme. Although Michael did not timely submit his certification within the 15 calendar days requested, Acme Warehouse should accept his certification and extend FMLA coverage for this entire period of leave because of the extenuating circumstances related to the post-surgery complications experienced by Michael.

An employer can give employees more than 15 days to provide a certification under its FMLA policy; however, an employer must consistently grant such extensions.

Incomplete or Insufficient Certification

Notice of Why Incomplete/What Is Missing

If an employer requires a medical certification and has provided adequate notice of this requirement, an employee must provide a complete and sufficient certification. +29 C.F.R. § 825.305 (c). The specific information that an employer may require from an employee on a certification form is detailed in the FMLA regulations and more fully described in Requesting Certification of the Need for Leave.

Written Notice

An employer must provide written notice to an employee if an employee's certification is incomplete or insufficient. Such written notice should state:

  • That the employer has deemed the certification to be incomplete or insufficient;
  • The additional information that is needed to cure the deficiencies; and
  • That the employee has seven calendar days to cure the deficiencies (unless not practicable).

+29 C.F.R. § 825.305 (c).

Incomplete and Insufficient - Defined

An incomplete certification is one in which one or more of the entries on the certification have not been completed. An insufficient certification, on the other hand, is one where all entries have been completed, but the information provided in response to the certification is vague, ambiguous or nonresponsive. +29 C.F.R. § 825.305 (c).

Employers in 3rd Circuit states (i.e., New Jersey, Delaware and Pennsylvania) must use caution when providing an employee a full opportunity to cure a potentially deficient FMLA certification. If the information contained in a health care provider's certification is in any way vague or ambiguous, the 3rd Circuit's decision in Hansler v. Lehigh Valley Hospital Network, +2015 U.S. App. LEXIS 10444 (3d Cir. June 22, 2015), requires that an employer strictly adhere to the FMLA regulations and give the employee time to cure the certification. In Hansler, the employee's certification specified the duration for her intermittent leave, but at least on its face, the information about her health condition did not support granting FMLA leave. The court held that the employer should have afforded the employee an opportunity to cure the certification on the grounds that it was ambiguous.

Employers are reminded that a certification that is not submitted to the employer is not considered an incomplete or insufficient certification, but rather considered a failure to provide certification. +29 C.F.R. § 825.305 (d).

Time to Cure

An employer must provide an employee with at least seven calendar days to cure any incomplete or insufficient certifications unless, under the particular circumstances of a specific case, it is not practicable despite diligent good faith efforts by the employee. +29 C.F.R. § 825.305 (c). The DOL's Designation Notice form (Form WH-382) includes a section that an employer can mark if additional information is needed to determine whether an FMLA request can be approved. The form specifically provides a category for certifications that are not complete and sufficient. In that category, the employer must provide the date by which the complete and sufficient certification must be delivered to the employer. The form also includes a space for the employer to detail the specific information that is needed to make a certification complete and sufficient. +29 C.F.R. § 825.305 (c).

In some cases, an employee may provide an incomplete certification (i.e., one or more entries on the certification form are not completed). Once the employer provides notice of what information is needed to complete the certification, the employee may potentially return a complete certification, but it still may be insufficient (i.e., vague, ambiguous or non-responsive information in the completed entries). In such a case, the employer should again provide the employee with written notice of what must be done to cure the incomplete certification and provide seven calendar days to cure the deficiencies. +29 C.F.R. § 825.305 (c). Thereafter, once the employer receives a complete and sufficient certification, the employer may contact the health care provider to authenticate or clarify the certification. +29 C.F.R. § 825.307 (a). See Authentication/Clarification of Certification.

Practical Example

Hank, an employee of Acme Music Co., is scheduled to have foot surgery. His doctor returns the completed certification to Acme on October 1, but the HR manager notices that it is missing some vital information about Hank's need for FMLA leave. The manager immediately prepares and gives Hank a written notice telling him what information is still needed and requesting that he return the needed information by October 8. If Hank fails to return the updated, complete certification by that date, Acme will have the right to delay Hank's leave or deny his leave request.

Failure to Cure

The employer can deny or delay the taking of FMLA leave if the employee:

  • Fails to cure the certification's specified deficiencies;
  • Does not produce the certification at all; or
  • Does not timely produce a complete and sufficient certification.

+29 C.F.R. § 825.313 . An employee's failure to cure a certification's deficiencies may be excused (or the employee may be permitted more time to cure) if the employee provides information demonstrating the employee has engaged in diligent, good-faith efforts to cure the certification's deficiencies.

Employees have an alternative means for providing a complete and sufficient certification. An employee can provide authorization to the health care provider who is providing the certification to release a complete and sufficient certification directly to the employer. +29 C.F.R. § 825.305 (d). An employer cannot require an employee to provide an authorization, release or waiver allowing the employer to communicate directly with a health care provider to satisfy the certification requirements. +29 C.F.R. § 825.306 (e).

Authentication/Clarification of Certification

An employer is not allowed to make contact with a health care provider to obtain additional information regarding a complete and sufficient medical certification. However, an employer may contact a health care provider to authenticate or clarify a medical certification after the employee has been afforded the opportunity to correct an incomplete or insufficient medical certification. +29 C.F.R. § 825.307 (a). The authentication or clarification process limits:

Authentication - Defined

Certification form authentication occurs when the employer provides the health care provider a copy of the certification form and seeks verification that the health care provider who signed the certification form actually completed or authorized the information contained on the form. When authenticating a certification form, the employer may not seek additional medical information. +29 C.F.R. § 825.307 (a).

Clarification - Defined

Certification form clarification occurs when an employer contacts the health care provider:

  • In an attempt to understand the handwriting on a medical certification form; or
  • To understand the meaning of a response included on the form.

When contacting the health care provider for clarification, an employer cannot seek additional medical information beyond that required by the certification form. +29 C.F.R. § 825.307 (a).

Contact With Health Care Provider to Authenticate or Clarify

An employer may contact the health care provider to authenticate or clarify a certification; however, in making contact with the health care provider, the employee's direct supervisor cannot be the individual to contact the health care provider. Instead, an employer must use one of the following individuals to contact the health care provider:

  • An official in management;
  • A leave administrator;
  • An individual from the HR department; or
  • A third-party health care provider.

+29 C.F.R. § 825.307 (a). See Communicating With Health Care Provider.

Contacting a health care provider to authenticate or clarify a medical certification is not a substitute for allowing an employee notice and the opportunity to cure a certification that is incomplete or insufficient. +29 C.F.R. § 825.305 . In addition, once an employer contacts a health care provider, it cannot require additional information than what is necessary to clarify or authenticate, as specified in the DOL's Certification of Health Care Provider Forms (WH-380-E or WH-380-F). If an employer has created its own certification form(s), such form(s) cannot go beyond the scope of the DOL's form(s).

Practical Example

Stephanie provides her employer, Acme Pharmaceuticals, with a certification form supporting her need for FMLA leave that is unsigned by her health care provider. The form also contains a vague reference to Stephanie's need for "potential intermittent leave," but provides no information on the estimated frequency or duration of absences. Acme deems the certification form incomplete because one of the required areas of the form has not been completed. Acme also finds the form insufficient because of the vague reference to "potential intermittent leave" without more information. As a result, Acme provides Stephanie with written notice of what it finds incomplete or insufficient on the certification form. Acme provides Stephanie with seven calendar days to cure the certification.

Two days later, Stephanie provides a signed certification with illegible entries related to the duration and frequency of her "potential intermittent leave." With Stephanie's permission, Acme's HR department contacts her health care provider to authenticate and clarify the certification. In doing so, Acme asks the health care provider if the provider completed and signed the certification to authenticate the information provided. In addition, Acme asks the health care provider to decipher the illegible handwriting regarding the frequency and duration of the potential intermittent leave to clarify the certification.

Failure to Authorize Authentication or Clarification

Any time an employer wishes to contact an individual's health care provider, employers must follow HIPAA's privacy rules, if applicable to the provider. See Employee Benefits > Health Information and Privacy (HIPAA). The FMLA regulations recognize that a HIPAA-covered health care provider will only be able to provide medical information about an employee or the employee's family member if the individual has authorized the treating health care provider to provide the information requested.

In the event an employee (or the employee's family member) elects not to provide the authorization that would allow the employer to clarify the certification or the employee fails to clarify the certification, an employer can deny a request for FMLA leave based on a determination that the certification is unclear. +29 C.F.R. § 825.305 (d); +29 C.F.R. § 825.307 . See also HIPAA Authorization for Release of Information to [Employer] For Family Medical Leave Act (FMLA) Purposes Only.

An employer does not need permission to clarify a health care provider's handwriting.

Validity of Certification

If an employer has reason to doubt the validity of a medical certification, an employer can require an employee to obtain a second opinion. +29 C.F.R. § 825.307 (b). The regulations do not define reason to doubt or validity. However, the employer should have more than just a suspicion and should rely on objective, reliable information, rather than on gossip or speculation. +29 C.F.R. § 825.308 (c)(3). See Role of Social Media.

Practical Example

John provides his employer, Acme Real Estate, with a certification for his own serious health condition. John has had a history of calling out sick on Mondays and Fridays. His co-workers have informed his supervisor that John is never actually sick, rather, he is frequently seen golfing during this time. When Acme Real Estate closely looks at John's certification they notice that the certification is signed by a health care provider with the same last name as John. At this time, Acme Real Estate may have reason to doubt John's medical certification and can seek a second opinion.

Process for Seeking Second and Third Opinions

If the opinion from the first health care provider differs from the second opinion, the employer can then require a third opinion which will be the final and binding opinion. An employer bears the costs associated with obtaining a second and third opinion. +29 C.F.R. § 825.307 .

An employer must provide the employee copies of the second and third medical opinions if the employee so requests. Unless extenuating circumstances exist, an employer should provide any requested copies of a second or third opinion within five business days. +29 C.F.R. § 825.307 (d).

An employer must also pay any reasonable travel expenses incurred by the employee or the employee's family member in obtaining the second or third opinion(s). An employee or an employee's family member may not be required to travel outside the normal commuting distance to obtain a second or third opinion in most cases. +29 C.F.R. § 825.307 (e).

The FMLA regulations also contain a specific provision regarding medical certifications covering a serious health condition that arises in a foreign country. In such situations, an employer must accept a second or third opinion from a health care provider who practices in a foreign country. However, if the medical certification is in a language other than English, the employee must provide a translation of the medical certification if the employer requests one. +29 C.F.R. § 825.307 (f).

Selection of Health Care Provider for Second/Third Opinions

The employer may designate the health care provider to provide the second opinion; however, the employer may not use a health care provider whom the employer employs or contracts with on a regular basis (i.e., a staff doctor). The only exception is for areas where access to health care is limited and there are only a few select doctors in the relevant specialty in that area. +29 C.F.R. § 825.307 (b)(2).

For third opinions, the employer and the employee must agree upon and jointly approve the health care provider who will be providing that opinion. Both the employer and the employee are expected to act in good faith to select the third health care provider. If the employer fails to act in good faith to work with the employee to find a health care provider for the third opinion, the employer will be bound by the first certification. Likewise, if the employee does not act in good faith to find an acceptable health care provider to provide the third opinion, the employee will be bound by the second opinion. +29 C.F.R. § 825.307 (c).

Practical Example

Eddie provides certification to his employer, Acme Co., that he is in renal failure and needs intermittent FMLA leave four times per week for dialysis. This certification comes from a general practitioner. Given the nature of the claimed serious health condition, Acme Co. decides it would be best to seek a second opinion from a nephrologist (a kidney specialist). The health care provider who provides the second opinion comes up with a different result from the first doctor. Thus, Eddie and Acme Co. must work together to identify an acceptable doctor to provide a third opinion. Eddie refuses to agree to a third opinion by a nephrologist. Eddie's refusal to agree to use a specialist to provide a third opinion would likely be viewed as his failure to cooperate in the process and would likely bind him to the second opinion sought by Acme Co.

Third Opinion Is Binding

The third opinion is the final and binding opinion as to whether or not the employee is ultimately entitled to FMLA leave. +29 C.F.R. § 825.307 (c).

Provisional FMLA Benefits

The employee is entitled to FMLA benefits (i.e., leave and maintenance of health benefits) while the employer is waiting for receipt of the second or third opinion. If the certification ends up not supporting FMLA, an employer may treat the time off as paid or unpaid leave pursuant to its customary practices or policy. +29 C.F.R. § 825.307 (b)(1).

Second or Third Opinion Exclusions

An employer may not seek a second or third opinion of a military caregiver leave certification that is completed by a United States DOD health care provider, a United States VA health care provider, a DOD TRICARE network authorized private health care provider or a DOD non-network TRICARE authorized private health care provider, nor may it do so when the employee submits an Invitational Travel Order or Invitational Travel Invitation in lieu of a certification. +29 C.F.R. § 825.310 (e)(2). An employer is permitted to seek a second or third opinion of military caregiver leave certifications completed by other authorized health care providers. See +29 C.F.R. § 825.310 (d).

Second and third opinions are also not allowed for medical recertifications. +29 C.F.R. § 825.308 (f). See New Certifications and Medical Recertification During FMLA Leave. An employer should also remember that some states place greater limits on requests for second and third opinions than those under the FMLA.

When Employee Fails to Cooperate With Process

An employee or the employee's family member must authorize the health care provider who provided the initial medical certification to release the medical information pertaining to the serious health condition at issue to the health care provider conducting the second or third opinion examination. Providing this information enables the health care provider engaged to provide the second or third opinion to form a sufficient and complete opinion. If the employee or employee's family member refuses to cooperate in the process by releasing the information, the employer may deny the taking of FMLA leave. +29 C.F.R. § 825.307 (c).

Role of Social Media

Employers sometimes become aware of, or are provided with, information from social media resources that lead an employer to question the validity of an employee's certification. An employer must proceed carefully in this area as there are legal implications for monitoring employees on FMLA leave. See Curbing FMLA Fraud and Abuse. In addition, there is a variety of legal concerns that are beyond the scope of these materials that might affect an employer's ability to monitor employees through social media resources. See Employee Management > Employee Privacy.

However, even where the employer does not itself utilize social media resources, it may receive complaints from an employee's co-workers about how an employee on FMLA leave is using FMLA leave. Often co-workers learn of the employee's activities while on FMLA leave from an employee's social media or social networking site. Even then, an employer must be cautious about how it utilizes the information received from co-workers. The information received from social media sites can often be misleading, so it needs to be carefully analyzed. An employer should investigate such situations (consistent with the employer's investigations of other non-FMLA related concerns) and discuss with an employee the activities that appear to be inconsistent with the need for FMLA leave before taking negative action against the employee or challenging the validity of an employee's medical certification. Investigations should be thorough and complete.See also Internal Investigations: Federal; Terminate an Employee on FMLA Leave.

Practical Example

Kendra's co-worker at Acme Hotel reports that Kendra, who is on FMLA leave, placed pictures on a popular social networking site showing her riding a roller coaster with her daughter at an amusement park. Kendra took leave because her daughter was receiving a bone marrow transplant and was thereafter to be placed in isolation. Acme Hotel has grounds to investigate Kendra's use of leave by gathering more facts about the situation. Upon such investigation, Acme Hotel learns the doctor informed Kendra that the transplant was not effective, but that the child still needs psychological comfort and care in the short amount of time the child has left to live.

Practical Example

Christian is on leave for severe neck and back injuries. While on leave, he posts pictures of himself riding a roller coaster at a local amusement park and identifies them as pictures from a trip that occurred last weekend. His employer, Acme Restaurant, has grounds to conduct an investigation into whether Christian's activities were inconsistent with the reason he was taking FMLA leave. Unless Christian provides a very good excuse for why he was able to ride a roller coaster, when he was supposedly taking leave for serious back and neck injuries Acme Restaurant likely will be able to challenge the validity of the certification and also may be able to impose disciplinary action based on his fraudulently obtaining FMLA leave.

New Certifications and Medical Recertification During FMLA Leave

If an employee's need for leave for the employee's own serious health condition or the serious health condition of a family member extends beyond the employer's leave year, the employer may require that the employee submit a new medical certification. A new medical certification is subject to the provisions for second and third opinions and the rules on authentication and clarification. +29 C.F.R. § 825.305 (e).

In addition to seeking a new certification after the expiration of a leave year, an employer is permitted to request that an employee provide a medical recertification during the employee's FMLA leave. The employer may request this recertification when the employee is on leave for the employee's own serious health condition or for the serious health condition of the employee's spouse, child or parent. +29 C.F.R. § 825.308 .

The information an employer may request in the recertification is the same information the employer could request in the original certification. The employee is obligated to participate and cooperate in the recertification process just as the employee is expected to do in the initial certification process. +29 C.F.R. § 825.308 (e); +29 C.F.R. § 825.305 (d); +29 C.F.R. § 825.306 .

How Often Can Employer Request Recertification

In most circumstances, an employer may request medical recertification:

  • No more than once every 30 days; or
  • Upon expiration of the length of time the certification form states the employee needs leave; or
  • Every six months, regardless of how long the certification form states the employee needs leave.

+29 C.F.R. § 825.308 (a)-(b).

Practical Example

Paul submits a medical certification to his employer Acme TV Station stating that he must be absent intermittently from work due to his serious health condition for the next 45 days. After that 45 day period passes, Paul needs to continue FMLA leave for the same condition. Acme TV Station may seek recertification from Paul because the FMLA period covered by his original certification has expired.

Practical Example

Janet submits a medical certification to her employer Acme Wind Tunnel stating that she must be absent due to a serious health condition for the next 10 months. Once six months have passed, Acme Wind Tunnel can require Janet to recertify her health condition, even though nothing has necessarily changed.

Exceptions to the General Timing Rule

There are also several instances in which an employer may request recertification more frequently than once every 30 days:

  • The employee requests an extension of leave;
  • Circumstances described by the previous certification have changed significantly; or
  • The employer receives information which casts doubt on the truthfulness of the employee's stated reason for the absence, or on the continuing validity of the previous certification.

+29 C.F.R. § 825.308 (c).

Circumstances previously described in a certification will have changed significantly if:

  • The duration of the employee's absence changes;
  • The frequency of the employee's absences change;
  • The nature of the illness changes;
  • The severity of the illness changes: or
  • Complications associated with the illness arise.

+29 C.F.R. § 825.308 (c)(2).

Practical Example

Jim suffers from sciatica. He provides his employer, Acme Sports Arena, with a medical certification that he needs FMLA leave for one to two days, two times per month to receive treatment for his condition and to recover from treatment. Jim' has begun taking leave more frequently than one to two days twice per month. The increased frequency of Jim's absences could constitute a significant change in circumstances, allowing Acme Sports Arena to request a recertification.

An employer should be cautious when receiving information that casts doubt on the truthfulness of an employee's reason for his or her absence or when questioning the validity of a certification. An employer should only rely upon objective, clear information and avoid making any assumptions or relying upon gossip or rumors that could turn out to be untrue.

Practical Example

Jennifer, an employee of Acme Corp., requests FMLA leave to undergo knee surgery. Her medical certification states that she will be unable to return to work for 40 days. Two weeks after Jennifer begins her leave, an Acme Corp. employee videotapes Jennifer playing in a softball game. The employee shows the video to Acme Corp.'s HR person. This information may be sufficient to cast doubt on the truthfulness of the reason for Jennifer's absence, or on the continuing validity of her certification. Acme Corp. may seek recertification immediately even though 30 days have not passed.

Time Frame for Employee to Provide Recertification

An employee must provide a completed recertification within the time frame requested by the employer. The employer must allow the employee a minimum of 15 calendar days to provide recertification. +29 C.F.R. § 825.308 (d). The 15 calendar day period begins to run from the date the employer makes the request of the employee. An employee may be excused from timely complying with the employer's request if, despite the employee's diligent, good-faith efforts, it is not practicable. +29 C.F.R. § 825.308 (d).

Failure to Provide a Recertification

If an employee fails to provide a recertification within a reasonable time depending on the applicable facts and circumstances, the employer may deny any continuation of FMLA leave until the employee submits the recertification. As with the initial certification, an employer must allow an employee at least 15 calendar days from the request for recertification to submit the recertification. If the employee fails to provide the recertification, the leave is no longer considered FMLA leave. Employers are reminded that the recertification requirement is not applicable in situations where FMLA leave is for a qualifying exigency or to care for a covered servicemember. See +29 C.F.R. § 825.313 (c).

Who Pays for Recertification

Unless the employer provides otherwise, the employee must pay for the cost of recertification, even when recertification is requested by the employer. +29 C.F.R. § 825.308 (f).

Second and Third Opinions on Recertification

An employer may not require second or third opinions on recertification. +29 C.F.R. § 825.308 (f). An employer can, however, provide a health care provider with a record of the employee's absences and ask the health care provider to opine on whether the employee's absences and the need for leave are consistent with the employee's asserted/certified serious health condition. See What to Provide a Health Care Provider When Seeking Recertification.

What to Provide a Health Care Provider When Seeking Recertification

Recertification is often requested because an employee's absence pattern is inconsistent with the previous certification. Likewise, recertification might also be requested if the pattern of absences is otherwise suspicious. For example, the employee has a pattern of using intermittent leave on days before or after scheduled days off. When this happens, as part of the recertification process, the employer has the right to ask for the same information as was requested in the certification process. +29 C.F.R. § 825.308 (e). See Requesting Certification of the Need for Leave. The employer may also give the health care provider certain information, such as a record of the employee's absence pattern. Moreover, the employer may ask the health care provider if the serious health condition and need for leave is consistent with that pattern. +29 C.F.R. § 825.308 (e).

Practical Example

Alexis is on intermittent leave from her employer, Acme Advertising Agency, for migraines. Alexis works a Monday through Friday work week, but Acme Advertising Agency has noticed that Alexis has begun using her intermittent leave every Friday, and on the occasional Monday. Because Alexis' leave pattern casts doubt on her need for intermittent leave, Acme Advertising Agency decides to request recertification. As part of the recertification process, Acme Advertising Agency may choose to send Alexis' attendance record to her health care provider, Dr. Smith, and request that Dr. Smith confirm whether Alexis' migraines are consistent with her attendance record.

Exclusions for Recertification of Military Leaves

An employer may not request recertification, or a second or third opinion, when an employee is on leave for a military exigency. See +29 U.S.C. § 2613 (c); +29 U.S.C. § 2612 (a)(1)(C), (D); +29 C.F.R. 825.309 ; +29 C.F.R. 825.310 (d). See Military Leaves.

Communicating With Health Care Provider

When an employer is permitted by the FMLA to seek individually-identifiable health information created or held by a HIPAA-covered entity (i.e., health care provider), such as when an employer seeks clarification of a certification or recertification, the employer first must ensure that the requirements of the Health Insurance Portability and Accountability Act (HIPAA) are satisfied. See Employer Challenges to Certifications.

This may be done by obtaining a HIPAA-compliant authorization from the employee (or the employee's family member where the employee is seeking leave to care for the family member). +29 C.F.R. § 825.307 (a). See also HIPAA Authorization for Release of Information to [Employer] For Family Medical Leave Act (FMLA) Purposes Only.

Generally, HIPAA requires that the authorization must be in writing and include, among other things:

  • A description of the information to be disclosed, written in a specific and meaningful fashion (e.g., "Information necessary to clarify a FMLA Certification submitted in connection with [employee's] request for leave");
  • The name or other specific identification of the person(s), or class of persons, authorized to make the requested use or disclosure (i.e., the health care provider);
  • The name or other specific identification of the person(s), or class of persons, to whom the health care provider may make the requested use or disclosure;
  • An expiration date or an expiration event that relates to the individual or the purpose of the use or disclosure;
  • Statements regarding the ability to revoke the authorization; and
  • The signature of the individual making the authorization or a personal representative with authority to sign the authorization on the individual's behalf.

+45 C.F.R. § 164.508 (c). See Employee Benefits > Health Information and Privacy (HIPAA).

An employer cannot require an employee (or the employee's family member, if applicable) to sign the HIPAA-compliant release; however, if the individual refuses to sign the release and the certification that the employer is seeking to clarify is in fact insufficient (i.e., incomplete and/or unclear), the employer can deny the requested leave unless the employee otherwise provides a complete and sufficient certification. +29 C.F.R. § 825.305 (c); +29 C.F.R. § 825.307 (a). See Employer Challenges to Certifications.

Who Can Contact the Health Care Provider?

When an employer is permitted by the FMLA to contact a health care provider to authenticate or clarify a certification or recertification, it must use one of the following individuals to make the contact:

  • A health care provider;
  • A member of the HR department;
  • A leave administrator; or
  • A management official.

+29 C.F.R. § 825.307 (a). The employer is prohibited, however, from having the employee's direct supervisor contact the employee's health care provider.

What Can Be Discussed With the Health Care Provider?

If the employer is seeking to authenticate a certification, it is only permitted to provide the health care provider with a copy of the certification and ask the health care provider to verify that he or she completed and/or authorized the information on the form. The employer may not request any additional medical information when seeking authentication. +29 C.F.R. § 825.307 (a).

If the employer is seeking to clarify a certification, it is only permitted to ask the health care provider for information necessary to understand the handwriting on the certification or the meaning of an unclear response. The employer may not seek information beyond that required by the certification form. +29 C.F.R. § 825.307 (a).

What to Provide a Health Care Provider?

When an employer provides a health care provider with a medical certification form, it may be helpful to provide the health care provider with a list of the essential functions of the employee's job (i.e., a job description) so that the health care provider has enough information to assist him or her in assessing what functions of the employee's job the employee is unable to perform (due to a serious health condition). This can be especially helpful in intermittent or reduced-schedule leave situations, to the extent that it may assist the provider in assessing the medical necessity of the leave.

If an employer chooses to include an employee's job description with the certification, the employer should check the box on Form WH-380-E, which indicates that there is information attached to the certification. This will ensure that the health care provider is on notice of the additional documentation and it will protect against the documentation becoming separated from the certification. +29 C.F.R. § 825.306 .

In order to ensure that certification forms are accurate, employers should regularly update and audit their job descriptions. See Recruiting and Hiring > Job Analysis and Documentation.

When an employer seeks recertification, it may not seek medical information beyond that requested on the Certification of Health Care Provider for Employee's Serious Health Condition form (WH-380-E). However, it may also give the health care provider a copy of a record of an employee's absence pattern and ask, "Is the serious health condition and need for leave consistent with this absence pattern?"

Of course, the employer may only submit a recertification request and absence record directly to a health care provider if it has the employee's express permission to communicate with the health care provider about matters other than "authentication" of a certification. It can, however, require an employee to take a cover letter containing the additional request and information about the absence pattern to the employee's health care provider along with the certification form. An employer should require that any recertification be complete and sufficient just like the initial certification.

GINA's Safe Harbor Statement

Title II of the Genetic Information Nondiscrimination Act (GINA), which applies to the same covered entities as does Title VII of the Civil Rights Act of 1964, prohibits the use of genetic information in making employment decisions, restricts acquisition of genetic information by employers and other entities covered by Title II, and strictly limits the disclosure of genetic information. +42 U.S.C.S. § 2000ff; +29 C.F.R. § 1635.1

GINA broadly defines genetic information to include information about:

  • An individual's genetic tests;
  • The genetic tests of that individual's family members;
  • The manifestation of disease or disorder in family members of the individual (family medical history);
  • An individual's request for, or receipt of, genetic services;
  • An individual's participation in clinical research that includes genetic services by the individual or family member of the individual; or
  • Genetic information of a fetus carried by an individual or by a pregnant woman who is a family member of the individual and the genetic information of any embryo legally held by the individual using an assisted reproductive technology.

+29 C.F.R. § 1635.3 . See Employee Management > EEO - Discrimination > Genetic Information - Genetic Information Nondiscrimination Act.

GINA includes a limited exception to the prohibition on obtaining genetic information with regard to requests for certification of a family member's serious health condition under the FMLA. In that context, an employer is explicitly permitted to obtain family medical history, but remains restricted from obtaining all other types of genetic information listed above. +29 C.F.R. § 1635.8 (b)(1)(iv).

GINA's general prohibition against requesting or requiring genetic information does not apply where an employer inadvertently requests or acquires genetic information of the individual or family member of the individual in connection with a lawful request for medical information (such as a request for an FMLA certification of an employee's - or employee's family member's - serious health condition). +29 C.F.R. § 1635.8 .

An employer's otherwise improper receipt of genetic information from a health care provider in this context will be deemed inadvertent (and therefore excused) only if the employer includes a GINA safe harbor provision with the request for medical information that led to the disclosure. +29 C.F.R. § 1635.8 (b)(1)(i)(B).

As of May 2015, the DOL's forms for certification and designation - Forms WH-380-E, WH-380-F, WH-385 and WH-385-V - include the safe harbor language required under GINA. The updated forms indicate an expiration date of May 31, 2018. In light of GINA's provisions discussed above, an employer that does not use the DOL's forms for certification and designation should include safe harbor language in the following FMLA-related documents, or should attach the safe harbor language to such documents when they are provided to employees. Note that the language has been customized for each notice.

Certification of Health Care Provider for Employee's Serious Health Condition

Important Notice to Health Care Provider

The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. Genetic information as defined by GINA, includes an individual's family medical history, the results of an individual's or family member's genetic tests, the fact that an individual or an individual's family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual's family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.

This same safe harbor language should be included in any HIPAA authorization that an employer provides to an employee for purposes of communicating with the employee's health care provider regarding an FMLA certification or recertification relating to the employee's own serious health condition.

Certification of Health Care Provider for Family Member's Serious Health Condition

Important Notice to Health Care Provider

The Genetic Information Nondiscrimination Act of 2008 (GINA) generally prohibits employers and other entities covered by GINA Title II from requesting genetic information of an individual or family member of the individual, except as specifically permitted by this law. GINA permits employers to request an employee's family medical history, which is one form of genetic information, when an employee requests leave to care for the serious health condition of a family member. Family medical history includes information about the manifestation of disease or disorder in the family member who is the subject of this certification. Accordingly, you may provide us with such information to the extent necessary for you to complete this certification. However, you should not provide any other type of genetic information as defined by GINA, which would include the results of an individual's or family member's genetic tests, the fact that an individual or an individual's family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual's family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.

This same safe harbor language should be included in any HIPAA authorization that an employer provides to an employee for purposes of communicating with the employee's family member's health care provider regarding an FMLA certification or recertification relating to the family member's serious health condition.

Designation Notice: (The safe harbor language is only recommended if the employer informs the employee on the Designation Notice that a fitness-for-duty certification will be required before the employee will be returned to work.)

Important Notice to Employee

The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to any request for a fitness-for-duty certification referenced in this Designation Notice. Genetic information, as defined by GINA, includes an individual's family medical history, the results of an individual's or family member's genetic tests, the fact that an individual or an individual's family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual's family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.

Maintaining Certifications

Similar to the recordkeeping requirements applicable to other employee medical information, an employer must keep medical certifications, recertifications and the return-to-work certifications in a separate file from the employee's personnel file and limit access to such file. For more information on recordkeeping requirements, please see FMLA Recordkeeping Requirements.

Designating, Calculating and Tracking Leave Requests

When an employee requests leave for family care, medical, parenting or military emergencies, the first thing the employer must do is to decide if the leave qualifies as time off under the FMLA. If the time off requested does fall under the FMLA, the employer must provide the employee with four specific types of notice. These notices are:

  1. General notice to all employees regarding what FMLA leave is and what it covers (See General Notice Posting Requirements);
  2. More specific notice about the particular employee's eligibility for FMLA leave;
  3. Notice of the employee's and the employer's rights and responsibilities under FMLA; and
  4. Notice designating the leave as covered by FMLA, if applicable.

The regulations contain detailed provisions explaining the methods by which an employer can calculate and track an employee's leave entitlement and leave use. See Calculating and Tracking Leave. This information must be contained in the notices so that the employee is provided with as much information as possible related to the employee's leave.

The failure to provide the required notices and to designate the time off as protected under the FMLA can cause harm to an employee. If harm to the employee occurs, the employer may be held legally responsible for the damage to the employee. In such a case, the employer may be required to:

  • Pay the employee's lost compensation;
  • Pay for value of the employee's lost benefits; and/or
  • Reinstate the employee.

Eligibility Notice to Employee

When an employee requests time off that qualifies, or may qualify, as FMLA leave, the employer must notify the employee whether the employee is eligible for FMLA leave within five business days of the employee's request. All FMLA absences for the same qualifying reason are considered a single leave and employee eligibility as to that reason for leave does not change during the applicable 12-month period. +29 C.F.R. § 825.300 (b)(1).

Practical Example

On January 1, John requests eight weeks of FMLA leave (to begin immediately) to care for his spouse who has a serious health condition. His employer, Acme Construction, has selected the calendar year as the 12-month period by which employees' leave entitlement is measured. John has worked 1,300 hours during the 12 months immediately preceding the requested start of his leave. John has met all other FMLA eligibility requirements and he submits a valid certification in support of his eight-week requested leave. Acme grants John's leave request.

John takes his eight weeks of leave and returns to work in late February. In late March, he requests additional FMLA leave to care for his spouse for the same serious health condition. However, John has not worked 1,250 hours during the 12 months immediately preceding the date on which he wants to restart his leave. Nonetheless, if John provides a valid recertification of his need for additional leave, he remains eligible for the leave based on his eligibility at the time he first took leave for the same reason during the applicable "leave year" (in this case, at the beginning of calendar year).

By contrast, if John requested leave for a different FMLA-qualifying reason (e.g., his own serious health condition) in March and he did not have the requisite 1,250 hours of service during the preceding 12 months, he would not be eligible for additional leave.

Content of Eligibility Notice

An eligibility notice must include the following information:

  • Whether the employee meets the eligibility requirements for FMLA leave (See Determining Employee Eligibility for FMLA Leave); and
  • If applicable, one or more reasons why the employee is not eligible for leave. This may include the fact that the employee has not been employed for the required 12 months, has not met the FMLA's hours of service requirement during the 12 months preceding the requested leave or is not employed at a worksite where 50 or more employees are employed within 75 miles.

+29 C.F.R. § 825.300 (b)(2). The employer must notify the employee of the eligibility determination in writing or orally. +29 C.F.R. § 825.300 (b)(1). The DOL's Notice of Eligibility can be used to fulfill this requirement. See Optional DOL Form (WH-381, Part A).

Optional DOL Form (WH-381, Part A)

An employer may satisfy its notice obligation regarding an employee's eligibility for FMLA leave by either developing its own form containing the FMLA's required eligibility information or, alternatively, an employer may use the DOL's model form, WHD Publication 381, entitled "Notice of Eligibility and Rights and Responsibilities." Part A of this form satisfies an employer's eligibility notice obligation. (Part B of the form can be adapted to satisfy an employer's "rights and responsibilities" notice obligation, discussed below.) +29 C.F.R. § 825.300 (b)(2).

If an employer uses WHD Publication 381, it should be aware that the form does not include exhaustion of the 12- or 26-week FMLA entitlement as a reason for finding an employee ineligible for FMLA leave.

Method of Delivering Eligibility Notice

An employer may deliver the eligibility notice orally or in writing. +29 C.F.R. § 825.300 (b)(2). It is advisable, however, to provide the notice in writing even if the information is first provided orally, in case the employee later contends that the employer failed to provide the required notice. When provided in writing, an employer may also wish to consider whether the eligibility notice should be delivered electronically (e.g., by email) to an employee. Electronic delivery can help establish that proper notice was provided to the employee. A best practice is to use a delivery method that provides proof of receipt (e.g., registered or certified mail, requesting a read receipt for emails).

Notice of the potential availability of FMLA can be provided in an employee handbook through an FMLA policy. However, notice of an employee's actual eligibility for the leave cannot be accomplished through a handbook as the employee's eligibility depends on:

  • Length of service;
  • Hours of service;
  • Number of employees within a specific geographic area; and
  • An employee's exhaustion of leave in the applicable 12-month period.

Language Requirements for Eligibility Notice

If a significant portion of the employer's workforce is not literate in English, the employer must provide the eligibility notice to the employee in the language in which the employee is literate. +29 C.F.R. § 825.300 (a)(4); +29 C.F.R. § 825.300 (b)(2). The FMLA regulations do not define what constitutes a "significant portion" of the workforce, nor does case law or the DOL provide any guidance on what percentage of the workforce would be significant enough to require the eligibility notice to be translated. The DOL has not translated WHD Publication 381 into any language other than English.

Timing of Eligibility Notice (Five Business Day Rule)

Absent extenuating circumstances, an employer must provide the eligibility notice to an employee within five business days of:

  • An employee's request for FMLA leave; or
  • The employer acquiring knowledge that an employee's leave may be for an FMLA-qualifying reason.

+29 C.F.R. § 825.300 (b)(1).

Change in Eligibility Status

If an employee who already has taken FMLA in the applicable 12-month period notifies the employer of the need to take additional leave during the same 12-month period for a different FMLA-qualifying reason, the following eligibility notice rules apply:

  • If the employee's eligibility status has not changed since the earlier FMLA leave request, the employer has no obligation to provide an additional eligibility notice; and
  • If the employee's eligibility status has changed (for example, the employer no longer has 50 employees working within 75 miles of the employee's worksite), the employer must notify the employee of the change in eligibility status within five business days, unless there are extenuating circumstances.

+29 C.F.R. § 825.300 (b)(3).

Recordkeeping Requirements Relating to Eligibility Notices

A covered employer that has eligible employees must maintain, for at least three years, copies of eligibility notices given to employees. Such copies may be maintained in employee personnel files. +29 C.F.R. § 825.500 (b); +29 C.F.R. § 825.500 (c)(4). See FMLA Recordkeeping Requirements.

Rights and Responsibilities Notice

Each time an employer must provide the eligibility notice to an employee, it must also provide a rights and responsibilities notice explaining:

  • The employee's rights relating to FMLA leave;
  • The employee's obligations regarding the request for FMLA leave; and
  • The consequences of failing to meet the employee's obligations.

Content of Rights and Responsibilities Notice

A rights and responsibilities notice must include the following information:

  • That the leave may be counted against the employee's annual FMLA leave entitlement if it is for an FMLA-qualifying reason;
  • Identification of the 12-month period by which an employee's use of FMLA leave is measured (e.g., calendar year, rolling 12-month period);
  • If applicable, the obligation of the employee to furnish a certification of a serious health condition, serious injury or illness, qualifying exigency or call to covered active duty status, and the consequences of failing to do so;
  • The employee's right to substitute paid leave, whether the employer will require the employee to use paid leave concurrently with FMLA leave, and the employee's entitlement to take unpaid FMLA leave if the employee does not meet the criteria for using paid leave;
  • If applicable, the requirement for the employee to make health benefit premium payments and the procedures for making such payments, as well as the possible consequences of failure to make such payments on a timely basis;
  • The employee's right to maintain benefits during the FMLA leave and be restored to the same or an equivalent position upon return from FMLA leave;
  • If applicable, the employee's status as a key employee under the FMLA and the fact that the employee may be denied restoration to the same or an equivalent position following FMLA leave, as well as an explanation of the situations in which restoration may be denied; and
  • The employee's potential obligation to reimburse the employer for health insurance premiums paid by the employer during the employee's unpaid FMLA leave if the employee fails to return to work after taking FMLA leave.

The employer must notify the employee of these rights and responsibilities in writing. +29 C.F.R. § 825.300 (c)(1). The DOL's Rights and Responsibilities notice can be utilized to fulfill this requirement. See Optional DOL Form (WH-381, Part B).

A rights and responsibilities notice may also include additional, optional information, such as whether the employee will be required to provide periodic status reports while on leave regarding the employee's intent to return to work and anticipated return-to-work date. However, such information is not required to be contained in the notice.

Optional DOL Form (WH-381, Part B)

An employer may satisfy its notice obligation regarding FMLA rights and responsibilities of employees and the employer by developing its own form containing the FMLA's required rights and responsibilities information. +29 C.F.R. § 825.300 (c)(6). Alternatively, an employer may use the DOL prototype form, WHD Publication 381, entitled "Notice of Eligibility and Rights and Responsibilities." Part B of this form may be used by an employer to satisfy its obligation to provide notice of employees' rights and responsibilities. Part A of the form can be used to satisfy the employer's eligibility notice obligation.

Method of Delivering Rights and Responsibilities Notice

An employer must provide the rights and responsibilities notice to employees in writing. +29 C.F.R. § 825.300 (c)(1). As a practical matter, the eligibility notice, rights and responsibilities notice, and any requested certification form are often delivered together. If the employee is still working, an employer can deliver the notice (and any additional forms or other information) in person. If the employee's leave has already begun, the notice and any additional forms or information should be mailed to the employee's address of record.

The employer may opt to distribute the notice and other documents electronically. +29 C.F.R. § 825.300 (c)(6). However, if such documents are delivered electronically, the employer should take into account whether the employee has access to electronic resources to view the notice(s) and other documents and/or to print those. If the employee may not have access to such electronic resources, the employer may opt to deliver the notice(s) and other documents through multiple means.

To ensure an employee receives FMLA notices, it is best to use a delivery method that provides proof of receipt (e.g., registered or certified mail, requesting a read receipt for email).

Language Requirements for Rights and Responsibilities Notice

If a significant portion of the employer's workforce is not literate in English, the employer must provide the rights and responsibility notice to the employee in the language in which the employee is literate. +29 C.F.R. § 825.300 (a)(4); +29 C.F.R. § 825.300(c)(1). The FMLA regulations do not define what constitutes a "significant portion" of the workforce, nor does case law or the DOL provide any guidance on what percentage of the workforce would be significant enough to require the notice to be translated. The DOL has not translated WHD Publication 381 into any language other than English.

Timing of Rights and Responsibilities Notice

Absent extenuating circumstances, an employer must provide the rights and responsibilities notice to an employee within five business days of:

  • An employee's request for FMLA leave; or
  • The employer acquiring knowledge that an employee's leave may be for an FMLA-qualifying reason.

+29 C.F.R. § 825.300 (c)(1); +29 C.F.R. § 825.300 (b)(1).

Notice of Changes to Information in Rights and Responsibilities Notice

If any of the information set forth in the rights and responsibilities notice given to an employee changes, the employer is required to give the employee written notice referencing the prior rights and responsibilities notice and detailing the information that has changed. This notice must be provided within five business days of an employee's first request for leave, which occurs after any change to information in the prior rights and responsibilities notice. +29 C.F.R. § 825.300 (c)(4).

Practical Example

Jane, a senior accountant for Acme Hospital, took two weeks of FMLA leave for a minor surgical procedure and related recovery time in September. Acme Hospital provided her with a rights and responsibilities notice stating (consistent with hospital policy) that she would be required to use her accrued but unused Paid Time Off (PTO) concurrently with her FMLA leave. At the start of her leave, Jane had two weeks of accrued but unused PTO left to use for the rest of the calendar year.

Shortly after she returns from her two-week leave, the hospital promotes Jane to CFO, a salaried position that places her among the highest paid 10 percent of the hospital's employees (therefore, she is now a key employee under the FMLA).

In November, Jane requests additional FMLA leave to address complications from her prior surgery. Because Jane is now a key employee, Acme Hospital must provide her with a new rights and responsibilities notice that informs her of the new status as well as the potential impact of her status on Acme's obligation to restore her to her position at the conclusion of FMLA leave.

In addition, if the initial designation notice did not include a reference to the procedure for paying health insurance premiums (since deductions would have been made from Jane's PTO bank to cover the premiums during the prior leave), the new rights and responsibilities notice must include it.

Obligation to Respond to Employee's Questions

The employer has an obligation to provide responsive answers to employees' questions regarding their rights and responsibilities under the FMLA. +29 C.F.R. § 825.300 (c)(5).

Inclusion of Other Documents With Rights and Responsibilities Notice

One of the items that must be covered in the rights and responsibilities notice is the obligation of the employee to provide a certification in support of his or her request for FMLA leave. If such an obligation is referenced in the notice, the employer may attach the appropriate certification form to the notice. +29 C.F.R. § 825.300 (c)(3).

Recordkeeping Requirements Relating to Rights and Responsibilities Notices

A covered employer that has eligible employees must maintain, for at least three years, copies of rights and responsibilities notices given to employees. Copies of the notices may be maintained in employee personnel files. +29 C.F.R. § 825.500 (b); +29 C.F.R. § 825.500 (c)(4). See also FMLA Recordkeeping Requirements.

Employer Notices Relating to Key Employee Status

Initial Notice to Key Employee

If applicable, the employer must include in the rights and responsibilities notice information about the employee's status as a key employee under the FMLA and the fact that the employee may be denied restoration to the same or an equivalent position following FMLA leave, as well as an explanation of the situations in which restoration may be denied. See Content of Rights and Responsibilities Notice.

Notice of Determination of Substantial and Grievous Economic Injury

If an employer plans to deny reinstatement to a key employee who takes FMLA leave, the employer has additional notice obligations. Before providing such additional notice, however, the employer must first determine if its business operation will suffer a substantial and grievous economic injury from the reinstatement of the key employee. While the FMLA does not provide clear guidance on what constitutes substantial and grievous economic injury, it is clear that an employer must show more than a minor inconvenience or an undue hardship, as defined under the ADA. See Employee Management > Disabilities (ADA) > Undue Hardship.

If an employer determines that its business operations will sustain a substantial and grievous economic injury from the reinstatement of a key employee, the employer must notify the key employee in writing of the following:

  • The employer's substantial and grievous economic injury determination;
  • The reasons for the employer's substantial and grievous economic injury determination;
  • That (despite the substantial and grievous economic injury determination) the employer cannot deny the employee FMLA leave;
  • That the employer intends to deny the employee restoration to employment upon completion of the FMLA leave; and
  • If the employee either goes on FMLA leave despite receiving the employer notice or if the employee is already on leave when the employer provides the notice, the deadline for the employee to return to work to avoid being denied reinstatement (a reasonable amount of time must be provided).

See Key Employee Distinctions.

Method and Timing of Initial Key Employee Notice Regarding Reinstatement

The initial notice must be provided to the key employee as soon as the employer makes a good-faith determination, based on the facts available, that substantial and grievous economic injury to its operations will result if the employee is reinstated at the end of FMLA leave. See Initial Notice to Key Employee.The notice must be in writing and delivered either in person or by certified mail. The DOL anticipates that an employer will ordinarily be able to give such notice prior to the employee starting leave, but in some cases an employer may not be able to make the "substantial and grievous economic injury" determination until after the employee has begun leave, in which case this notice must be provided as soon as the determination is made.

Even though an employer may determine that a key employee's reinstatement will cause substantial and grievous harm, the employer must still provide the employee with leave and continued health care benefits.

Method and Timing of Final Key Employee Notice Regarding Reinstatement

The second notice must be provided to the key employee once the employee seeks reinstatement and the employer again determines that the employee's reinstatement would cause substantial and grievous economic injury. The notice must be in writing and delivered either in person or by certified mail.

Responding to Key Employee's Request for Reinstatement

If an employer notifies a key employee that the employee will be denied reinstatement, the employee still has a right to request reinstatement after taking FMLA leave. If an employee requests reinstatement at the conclusion of his or her leave, the employer must review the facts available at the time of the request to determine if the reinstatement would still cause substantial and grievous economic injury. If so, the employer must notify the employee in writing. See Notice of Determination of Substantial and Grievous Economic Injury. If reinstatement will not cause substantial and grievous economic injury, the employer must reinstate the employee.

Designation Notice

An employer is responsible for either designating an employee's leave as FMLA-qualifying or refusing to designate it as such. The employer must inform the employee of this designation in writing. Employees are generally not required to designate leave as FMLA-qualifying. Rather, employees need only provide verbal notice sufficient to inform the employer of the need for FMLA-qualifying leave, the anticipated timing of the leave and the duration of the leave. Method of Delivering Designation Notice.

An employer should not designate leave until the employer has:

  • Provided an employee with notice of his or her potential eligibility for FMLA leave;
  • Provided an employee with a notice of his or her rights and responsibilities in connection with FMLA leave; and
  • Received enough information from the employee to determine whether an employee's need for time off qualifies as FMLA leave, including a certification, if applicable.

See Employer's Designation Decision. Only one designation notice is required for each FMLA-qualifying reason per applicable 12-month leave year period, regardless of whether the leave taken due to the qualifying reason will be a continuous block of leave or intermittent or reduced schedule leave. +29 C.F.R. § 825.300 (d)(1).

Employer's Designation Decision

An employee requesting leave has an obligation to provide enough information to the employer so that the employer can determine whether the reason for time off from work may qualify as FMLA leave. The employee need not expressly ask for "FMLA leave" or state that the employee wishes to exercise FMLA rights, but the employee must at least explain the reason that leave is needed (e.g., the employee has a medical condition, the employee has an ill family member).

An employer's decision whether to designate an employee's leave as FMLA leave must be based only on information received from the employee or the spokesperson who notified the employer of the employee's need for FMLA leave. +29 C.F.R. § 825.301 (a). When the employer is permitted to require a certification (i.e., when the requested or anticipated reason for leave is an employee's serious health condition, an employee's family member's serious health condition, a covered servicemember's serious injury or illness, or a military exigency), a completed certification normally will include enough information to allow the employer to make a designation decision. If the employer does not have sufficient information about the reason for an employee's leave, the employer should ask the employee or the spokesperson for the necessary information. See Requesting Certification of the Need for Leave. If a dispute exists as to whether leave qualifies as FMLA, the employer and employee should discuss this and attempt to resolve the dispute. Any discussions and decision regarding the dispute must be documented. +29 C.F.R. § 825.301 (c). See Disputed Designations.

Content of Designation Notice

A designation notice normally must include the following information (see certain exceptions, below):

  • Whether or not the employee's leave will be counted as FMLA leave. If the employer decides not to designate the leave as FMLA because it is not FMLA-qualifying, the notice may be in the form of a simple written statement to that effect;
  • If applicable, that the employee will be required to substitute paid leave for unpaid FMLA leave;
  • If applicable, that paid leave taken under an existing employer leave plan will be counted as FMLA leave;
  • If applicable, that the employer will require the employee to present a fitness-for-duty (FFD) certification in order to be restored to employment at the conclusion of FMLA leave;
  • If applicable, that the employer will require the FFD certification to address the employee's ability to perform the essential functions of the employee's position. (In this circumstance, a list of essential functions, usually in the form of a job description, must be attached to the designation notice); and
  • If known at the time the leave is designated as FMLA-qualifying, the amount of leave (in number of hours, days or weeks) that is being - or will be - counted against the employee's FMLA leave entitlement.

+29 C.F.R. § 825.300 (d).

There are limited exceptions to this list of required content, as follows:

  • If the employer maintains a written policy that FFD certifications are required in specific circumstances, the employer need not include written notice of the requirement in the designation notice, but instead may provide oral notice of the requirement. (For example, this exception would apply if the employee took FMLA leave for a back injury and the employer had a policy requiring all employees in the employee's position who sustain back injuries to obtain a FFD certification before returning to work.) +29 C.F.R. § 825.300 (d)(3); and
  • If it is not possible to provide the hours, days or weeks that will be counted against the employee's FMLA leave entitlement at the time the designation notice is provided (for example, as in the case of unforeseeable intermittent leave), the employer must notify the employee (orally or in writing) of the amount of leave counted when requested by the employee, but the employer is not required to do so more often than once in a 30-day period and only if leave was taken in that period. If this notice is provided orally, the employer must later provide the employee with written notice (in any form) of the amount of leave counted.

The DOL's Designation Notice can be used to fulfill this requirement. See Optional DOL Form (WH-382).

Optional DOL Form (WH-382)

The DOL has created a prototype form, Form WH-382, entitled "Designation Notice," which an employer may adapt to satisfy its notice obligations relating to the designation of FMLA leave. +29 C.F.R. § 825.300 (d)(4). An employer may satisfy the notice obligation by including the applicable information referenced above in another document.

The DOL's prototype designation notice also includes a section that can be used to inform an employee that additional information is needed before the employer can make a designation decision. Specifically, it includes language by which the employer can notify the employee of the following:

  • That the certification the employee provided is not complete and sufficient to allow the employer to determine whether the requested leave is FMLA-qualifying. The form also includes a space where the employer can specify the information needed to make the certification complete and sufficient. See Requesting Certification of the Need for Leave; and
  • That the employer is requiring the employee to obtain a second or third opinion medical certification. See Process for Seeking Second and Third Opinions.

See Form WH-382.

If an employer requests complete or clarifying information or a second or third opinion using the DOL prototype form or otherwise, the employer still is required to timely designate the leave once it receives the information necessary to determine whether or not the requested time off is FMLA-qualifying. See Timing of Designation Notice. Thus, an employer may need to send out more than one Designation Notice before the employer will be considered as having actually "designated" leave as either FMLA-qualifying or non-FMLA-qualifying.

Special Circumstances - Unscheduled Intermittent Leave Designations

If an employee will be taking FMLA leave on an unscheduled intermittent basis, the employer will not be able to include in the designation notice the actual amount of time off that ultimately will be designated as FMLA leave. The DOL's prototype form, Form WH-382, includes language that an employer can select to notify such an employee that he or she has a right to request information about how much of his or her time off actually taken will be counted against the employee's FMLA entitlement. If the employee later requests such information, the employer must provide notice of the amount of leave counted against the employee's FMLA leave entitlement no more often than once in a 30-day period and only if leave was taken in that period.

The employer's notice may be delivered orally or in writing. However, if such notice is oral, it must be confirmed in writing, no later than the following payday (unless the payday is less than one week after the oral notice, in which case the notice must be provided no later than the subsequent payday). The written notice may be in any form, including a notation on the employee's pay stub.

Special Circumstances - Designations for Care of a Covered Servicemember Leave

In some situations, an employee's FMLA leave may qualify as both leave to care for a covered servicemember and leave to care for a family member with a serious health condition. Because leave to care for a covered servicemember may be taken during a single 12-month period, which may differ from the employer's chosen leave year for other types of FMLA leave, there is a special rule for designating such leave when it could also qualify as family care FMLA leave: the employer must designate such leave as leave to care for a covered servicemember in the first instance, and it may not be counted at the same time as leave taken to care for a family member's serious health condition.

Practical Example

Acme Electric Co. has chosen the calendar year for its FMLA leave year applicable to all FMLA leaves other than leave to care for a covered servicemember. Mary, an employee of Acme Electric, takes 11 consecutive weeks of FMLA leave for her own serious health condition at the beginning of the calendar year. In June of the same year, Mary learns that her mother, a covered servicemember under the FMLA, was seriously injured in the line of duty. Mary provides Acme Electric with an Invitational Travel Order authorizing her to join her mother at her bedside.

Although Mary's leave could otherwise be classified under the FMLA as leave to care for a family member with a serious health condition (for which Mary would have only one more workweek of FMLA leave remaining in the applicable leave year), Acme Electric is required to treat the leave as leave to care for a covered servicemember, permitting Mary to take 26 workweeks off, if needed, during a single 12-month period beginning on the first day she takes leave to care for her mother.

Method of Delivering Designation Notice

The designation notice must be provided in writing to an employee. +29 C.F.R. § 825.300 (d)(4). Neither the FMLA nor its regulations indicate that the designation notice may be provided to employees electronically.

When an employer, in response to an employee's request, orally notifies the employee of the amount of leave counted against the employee's FMLA leave entitlement during the applicable 12-month period, the employer must follow the oral notice with written notice of some kind, setting forth the same information. +29 C.F.R. § 825.300 (d)(6).

To defend against a potential claim that an employee did not receive the notice, an employer should use a delivery method that provides proof of receipt (e.g., registered or certified mail, requesting a read receipt for emails).

Timing of Designation Notice

Absent extenuating circumstances, the employer must provide a designation notice to the employee within five business days of receiving the information necessary to determine whether or not the requested leave is FMLA-qualifying. +29 C.F.R. § 825.300 (d)(1). This notice will normally be provided after the employee submits the documents necessary to certify his or her need for FMLA leave, such as a certification of the employee's serious health condition. However, if the employer has enough information to designate the leave immediately after learning of the employee's need for leave, the employer may provide the designation notice at that time. +29 C.F.R. § 825.300 (d)(2).

To the extent that the employer has not yet made a decision on whether the employee's leave is FMLA-qualifying, neither the FMLA nor its regulations set forth a time frame for the employer to provide the designation notice to the employee for one of the following reasons:

  • Notifying the employee that the certification submitted by the employee is not complete and/or sufficient; or
  • Notifying the employee that the employer is seeking a second or third opinion medical certification.

+29 C.F.R. § 825.300 (d)(1). However, the employer should aim to provide such notice to the employee as soon as possible after learning of the need for more information or deciding to seek a second or third opinion. Assuming the employee provides the requested information and/or submits to a second and/or third opinion, the five-business-day time frame for providing a designation notice setting forth the employer's designation decision would apply once the employer receives the information and/or final opinion.

Changes in Designation Status

To the extent that the information set forth in the designation notice changes (for example, the employee exhausts his or her FMLA leave entitlement) and the employee subsequently gives notice of the need for leave, the employer must provide the employee with written notice of the change within five business days. +29 C.F.R. § 825.300 (d)(5).

Disputed Designations

Disputes may arise between an employer and an employee as to whether a particular leave is FMLA-qualifying. The FMLA regulations state that such a dispute should be resolved through a documented discussion between the parties. +29 C.F.R. § 825.301 (c). This discussion and documentation should cover:

  • Both the employee's and the employer's reasoning for contending that the leave is - or is not - FMLA-qualifying;
  • Any documentation relating to the leave reason (e.g., medical certifications), including any differing interpretations between the parties;
  • Any other facts relating to the reason for the disagreement; and
  • The employer's conclusion regarding the dispute, including the basis for its final decision.

+29 C.F.R. § 825.500 (c)(7).

In some circumstances, an employee may request that his or her leave not be counted as FMLA leave because he or she would prefer to save his or her FMLA leave entitlement to use after exhausting other leaves that may be available. However, if an FMLA-eligible employee takes leave for an FMLA-qualifying reason, the employee cannot choose to "opt out" of having the leave counted against his or her FMLA entitlement.

At all times, the employer is responsible for making the designation decision. +29 C.F.R. § 825.300 (d)(4); +29 C.F.R. § 825.127 (e)(4). This includes the right to make an "involuntary" designation, against the employee's wishes, after following the "discuss and document" procedure referenced above in relation to designation disputes. The DOL has issued opinion letters on this topic. See Wage and Hour Op. Letter, FMLA-68 (July 21, 1995); Wage and Hour Op. Letter, FMLA-83 (Aug. 7, 1996).

Therefore, when an eligible employee asks to forgo the designation of FMLA leave, the employer still should base its designation decision on whether or not the information provided by the employee or the employee's representatives indicates that the leave is FMLA-qualifying. Of course, the employer's decision to make an "involuntary" designation should be made with caution, since the employee may challenge the decision by filing a complaint with the DOL and/or a court.

Practical Example

Victor, an employee of Acme Candy Co., tells his supervisor, Susan, that he wants to take one or two weeks of PTO time because his elderly mother has pneumonia and he needs to care for her while she is restricted to bed rest. Susan provides this information to HR, which provides Victor with an FMLA Notice of Eligibility and Rights and Responsibilities notifying him of (among other things) his obligation to submit a certification from his mother's medical provider in support of his request for leave.

Victor then tells Susan that he will not be submitting the requested paperwork because he does not want the time off to count as FMLA leave. After being informed of Victor's position, HR discusses the matter with him and determines that the leave is FMLA-qualifying (based on the information that Victor previously provided to Susan regarding his need to care for his mother), since that information indicated that his mother has a serious health condition (pneumonia) that is causing her to be incapacitated and in need of care.

HR concludes that Victor's objection to using FMLA leave is based on his desire to save his FMLA leave for an "emergency," which is not a valid basis for avoiding an FMLA designation. Therefore, HR provides Victor with a designation notice informing him that the PTO time that he requested will be counted against his FMLA entitlement.

Recordkeeping Requirements Relating to Designation Notices

A covered employer that has eligible employees must maintain, for at least three years, copies of designation notices given to employees. Such copies may be maintained in employee personnel files. +29 C.F.R. § 825.500 (b); +29 C.F.R. § 825.500 (c)(4). See FMLA Recordkeeping Requirements.

Failure to Designate FMLA Leave

Absent extenuating circumstances, the FMLA regulations require that designation notices be provided to an employee within five business days of receiving the information necessary to determine whether or not the requested leave is FMLA-qualifying. See Timing of Designation Notice. However, the regulations also make clear that an employer's failure to meet this deadline, if harmless to the employee, will not constitute interference with an employee's FMLA rights nor lead to liability. +29 C.F.R. § 825.301 (e). See Consequences of Employer's Failure to Provide Proper Notices; Permissible Retroactive Designations.

Permissible Retroactive Designations

It is not uncommon to discover information after an employee's absence from work that leads the employer to understand that the employee's time off falls within the FMLA's protections. For example, a supervisor may not realize that an employee's illness qualifies as a serious health condition, and therefore the time off may not be designated as FMLA right away. Even if an employer fails to provide an employee with a designation notice in accordance with the five-business-day time frame, it still may retroactively designate leave as FMLA leave, as long as the employer's failure to provide timely notice does not cause harm or injury to the employee. +29 C.F.R. § 825.301 (d). Harm or injury to the employee is not specifically defined by the regulations. Rather, it must be evaluated on a case-by-case basis. However, when determining whether an employee suffered harm or injury, an employer should consider whether retroactive designation would affect the employee's:

  • Pay;
  • Benefits; or
  • Right to reinstatement.

See The DOL's Non-Military FAQS.

In any situation in which leave would qualify for FMLA protections, an employer and an employee can mutually agree that leave be retroactively designated as FMLA leave. +29 C.F.R. § 825.127 (e)(4). In 2002, the Supreme Court struck down regulations that prohibited employers from retroactively designating leave as FMLA leave. The effect of that decision is that employees will not always be entitled to FMLA leave in addition to the 12 weeks of non-FMLA time, if an employer fails to timely designate leave as FMLA-qualifying.

Practical Example

Joe, a maintenance employee at Acme Telemarketing, has emergency heart surgery. The day after his surgery, Joe's wife contacts his supervisor at Acme and informs her of the surgery and that Joe will be bedridden and unable to work for at least 12 weeks. Acme, while permitting Joe the time off without requiring a medical certification, fails to send Joe a designation notice informing him that the time off is being considered FMLA leave. When Joe contacts HR after being out six weeks to report that he will remain bedridden for an additional two weeks, Acme's HR department realizes its oversight. Despite having failed to designate Joe's time off as FMLA leave within five business days of learning the information necessary to make the designation decision, it is a low risk for Acme to retroactively designate the six weeks as FMLA leave. This is because Joe will not be able to establish that he was harmed by the delay in notice, since he was bedridden during the applicable time frame and could not have altered his situation to avoid exhausting his FMLA leave entitlement.

Impermissible Retroactive Designations

If an employer's failure to designate leave in a timely manner results in harm to the employee, then a retroactive designation of leave would not be permissible. +29 C.F.R. § 825.301 (e). A failure to designate may result in harm to the employee if:

  • The employer later refuses to grant FMLA leave to the employee based on its conclusion that the employee has exhausted his or her FMLA entitlement in the applicable leave year; and
  • The employer's conclusion that the employee has exhausted his or her FMLA entitlement is based at least in part on the previously undesignated FMLA leave.

In such situations, if the employee can establish that a timely designation notice would have permitted him or her to alter his or her leave schedule in such a way as to avoid exhausting his or her FMLA entitlement during the applicable leave year, the retroactive designation will be deemed impermissible.

Before an employer retroactively designates leave, it should carefully review the employee's entire circumstance to determine if retroactive designation will harm the employee.

Practical Example

Sally, a call center representative at Acme, takes eight weeks off work to bond with her newly adopted infant, using her accrued PTO and vacation time. Due to an oversight, Acme fails to designate this time off as FMLA leave. Three months after returning to work, Sally decides to have elective surgery to help relieve some foot pain that has been bothering her, and complications arise, causing her to need six weeks off of work. It will be risky for Acme to retroactively designate Sally's eight weeks off for baby bonding as FMLA leave, because Sally could argue that, had she received timely notice that the eight weeks would be counted as FMLA leave, she could have delayed the foot surgery until she had entered a new FMLA leave year and had a full complement of leave entitlement upon which she could rely in the event of surgery complications. In this way, Sally could establish that Acme's failure to designate in a timely manner caused her actual harm, interfering with her right to FMLA leave.

Consequences of Employer's Failure to Provide Proper Notices

If an employer fails to provide an employee with an FMLA eligibility notice, rights and responsibilities notice and/or designation notice, and it causes an employee harm, the employer's inaction can be considered interference with, restraint or denial of the exercise of the employee's FMLA rights. +29 C.F.R. § 825.300 (e); +29 C.F.R. § 825.301 (e). See Actions Prohibited by the FMLA. If an employer has interfered with an employee's leave rights, the employer may be required to:

  • Pay the employee's actual money losses that result from the violation, which may include (but not be limited to) wages, employment benefits or other compensation denied to or lost by the employee;
  • Pay additional money damages in an amount equal to the employee's actual money losses;
  • Provide nonmonetary relief that would put the employee in the position he or she would have been in if not for the violation, which may include (but not be limited to) reinstatement or promotion; and
  • Pay the employee's attorney fees and other costs related to legal action taken to address the violation.

+29 C.F.R. § § 825.400 (c); +29 C.F.R. § 825.301 (e).

Calculating and Tracking Leave

The FMLA includes various rules about how an employer may calculate and track an employee's use of the 12- or 26-week FMLA entitlement.

Calculating the Leave Year

The amount of FMLA leave to which an eligible employee is entitled at any point in time is determined by reference to the applicable 12-month period (also referred to as the applicable leave year). During this 12-month period, which the employer chooses, the employee may use his or her 12- or 26-week FMLA entitlement (depending on the reason(s) for the leave). +29 C.F.R. § 825.200 (b), +29 C.F.R. § 825.200 (g).

Measuring the 12-Month Period

For all types of FMLA leave except leave to care for a covered servicemember, an employer may select any of the following methods for determining the particular 12-month period in which employees' may take up to 12 workweeks of leave:

  • 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 an employee's anniversary date;
  • The 12-month period measured forward from the beginning date of any employee's first use of FMLA leave for qualifying reasons other than caring for a covered servicemember; or
  • A rolling 12-month period measured backward from the date an employee uses any FMLA leave for qualifying reasons other than caring for a covered servicemember.

+29 C.F.R. § 825.200 (b)(1)-(4). An employer can implement any of these methods, provided that the method chosen is applied consistently and employees are provided with written notice. See also Fact Sheet #28H: 12-month period under the Family and Medical Leave Act (FMLA).

Calendar Year Method

Under the calendar year method, an employee can use his or her leave entitlement any time during the fixed 12-month period selected. +29 C.F.R. § 825.200 (d). Once the 12-month period ends, the employee (assuming the employee remains otherwise eligible for FMLA leave) becomes eligible for a new FMLA entitlement. Some employers prefer using the calendar year method because it takes the "guess work" out of when a new 12-month period begins for calculating how much leave each employee may or may not have available. Other employers do not like to use the calendar year method because it allows an employee to stack leave at year's end and year's beginning to be absent for one extended period of time. See Stacking of FMLA Leave Time.

Practical Example

Acme University has chosen a calendar year method for calculating employees' FMLA usage. On October 1, Marcy tells the University that starting next week she needs to take FMLA leave to care for her mother, who has a serious health condition. She expects this leave to last through year's end, given her mother's health. As of December 31, Marcy will have used all 12 weeks of her FMLA entitlement for the calendar year. When the new calendar year starts (January 1), Marcy will be eligible for another 12 weeks of FMLA leave for which Marcy can take FMLA to care for her mother or for any other FMLA covered purpose because her leave entitlement is replenished with the start of each calendar year.

Other Fixed Year Method

Under the other fixed year method, an employer selects the 12-month period it wishes to use. For example, some employers use their fiscal year (e.g., February 1 to January 31 or July 1 to June 30). Other employers may use an employee's anniversary date with the employer. The other fixed year method is like the calendar year method. An employee can use the employee's leave entitlement any time during the fixed 12-month period selected. +29 C.F.R. § 825.200 (d).

Once the 12-month period ends, the employee (assuming the employee remains otherwise eligible for FMLA leave) becomes eligible for a new FMLA entitlement. Some employers prefer using the fixed year method because it takes the "guess work" out of when a new 12-month period begins for calculating how much leave each employee may or may not have available. Other employers do not like to use the fixed year method because it allows an employee to stack leave at year's end and year's beginning to be absent for one extended period of time. See Stacking of FMLA Leave Time.

Practical Example

Acme University has chosen a fixed leave year method for calculating employees' FMLA usage that is based on each employee's anniversary of employment. Amber is hired on May 1 of a given year. In July of the following year, Amber seeks FMLA leave to care for her daughter who has a serious health condition. Assuming Amber is eligible for leave, she will be able to use her FMLA leave entitlement (12 workweeks of leave) across the applicable leave year, which for Amber is May 1 of each year to April 30 of the following year. Regardless of whether or not Amber uses her full FMLA leave entitlement during a given leave year, on May 1 of each year her FMLA entitlement is replenished to its yearly maximum.

Rolling Forward Method

Under the rolling forward method, an employee can use the employee's leave entitlement in the 12-month period following the first day the employee took FMLA leave. After that particular 12-month period passes, the employee is entitled to a new 12 weeks of leave time. However, this new 12 week leave entitlement only begins after the first 12-month period has passed. Once the employee starts the new 12 week leave entitlement, a new 12-month period begins on the first day the employee takes the new FMLA leave. +29 C.F.R. § 825.200 (d). Over time, employers have moved from the calendar year and fixed year methods due to the risk of leave stacking and extended period of time away from work. However, the rolling forward method also permits some stacking of leave if employee's need for leave can be controlled by the employee, so that leave is saved up until the end of 12 months and then used again as soon as the first 12-month period passes. See Stacking of FMLA Leave Time.

Practical Example

Acme University has chosen a rolling forward leave year method for calculating employees' FMLA usage. Kate, an Admissions Department employee who has not used FMLA leave in the past, requests FMLA leave due to her own serious health condition beginning on October 1. If Kate's leave request is approved and she begins taking leave on October 1, the leave year during which Kate may use her applicable FMLA entitlement will begin on October 1 and end on September 30 of the following year. Regardless of whether or not Kate uses her full FMLA leave entitlement during that initial 12-month period (October 1 through September 30), after the initial 12-month period ends (on September 30) her FMLA entitlement is replenished to its maximum. The subsequent leave year (if any) will begin on the first day Kate again uses FMLA leave. For example, if Kate works her regular schedule from October 1 through November 30, but then takes FMLA leave beginning on December 1, her subsequent leave year begins on that date and ends on November 30 of the following year.

Rolling Backward Method

Under the rolling backward method, each time an employee takes FMLA leave, the remaining leave entitlement is any balance of the leave entitlement which has not been used during the immediately preceding 12 months. +29 C.F.R. § 825.200 (d). In other words, the rolling backward method is a snapshot of the applicable 12-month period that changes on a daily basis. As each new day is added to a 12-month period, one day from 12 months ago is eliminated. Stated another way: each time an employee takes FMLA leave, the remaining leave entitlement would be any balance of the 12 weeks which has not been used during the immediately preceding 12-month period.

Many employers use this method because it is the only one that prohibits leave stacking. However, a number of employers also find this calculating method confusing - particularly in the abstract before an employee has ever used FMLA leave. In addition, because military caregiver leave requires that leave for that purpose can only be calculated using a single 12-month period, administering military caregiver leave with other leaves that rely on the rolling backward method can be very confusing and difficult to administer.

Practical Example

Acme University has chosen a rolling backward leave year method for calculating employees' FMLA usage. John, a payroll administrator, took his entire yearly FMLA leave entitlement (12 workweeks) to care for a sick parent during consecutive weeks beginning on January 1 of the current year. This was his first ever use of FMLA leave. Later in the year, he falls ill with his own serious health condition and requests additional FMLA leave beginning on July 1. John's current entitlement to FMLA leave is based on how many workweeks of FMLA leave he used during the 12 months preceding July 1 (i.e., from July 1 of the prior year through June 30 of the current year). Because John already used his entire yearly entitlement of FMLA leave within that 12-month period, John currently has no FMLA entitlement upon which he can draw. He will not become eligible for FMLA leave again until he reaches January 1 of the next year, at which point he will recoup (and be entitled to use) one additional day of FMLA leave each day for the next 12 weeks.

Required Uniformity of Leave Year Method

An employer's ability to select a particular leave year for tracking employees' use of FMLA leave exists only if the chosen method is applied consistently and uniformly to all of the employer's employees, with one exception, as follows: if a multistate employer has FMLA-eligible employees in a state with a family and medical leave law that requires a single method for tracking the use of employees' leave entitlement, the employer is permitted to comply with the state tracking method with regard to all employees employed within that state and uniformly use a different tracking method for all other employees. +29 C.F.R. § 825.200 (d)(1). See HR Strategy, Management and the Law > Multistate Employer.

Employer Notice Requirements Regarding Leave Year Method

In order to use a particular leave year method for tracking employees' use of FMLA leave for reasons other than to care for a covered servicemember, an employer must notify all of its employees of the method it has selected. +29 C.F.R. § 825.200 (d)(1), +29 C.F.R. § 825.200 (e). Usually, this will be accomplished by a reference to the chosen method in an employer's written FMLA policy. Moreover, the employer must provide an employee with notice of which leave year method it uses to calculate FMLA entitlement in the rights and responsibilities notice provided when an employee is determined as eligible for FMLA leave. See Rights and Responsibilities Notice. If an employer fails to designate a particular "leave year" method and fails to notify its employees of that method, the method that provides the most beneficial outcome for the particular employee will be used. +29 C.F.R. § 825.200 (e).

Designating or Changing Leave Year Method

In order to designate a particular leave year method for tracking employees' use of FMLA leave, or to change from one method to another, an employer must give at least 60 days' notice of the designation to all employees. +29 C.F.R. § 825.200 (d)(1); +29 C.F.R. § 825.200 (e). Notification of a companywide policy change may be effected by updating the employer's written FMLA policy and disseminating the new policy to all employees. Notification to specific employees in connection with their leave requests must be accomplished using the FMLA eligibility notification form. See Designating, Calculating and Tracking Leave Requests; Creating an FMLA Policy and/or Other Written Guidance.

During the running of the 60-day period in a situation where the employer has not previously selected a method, any employee who seeks FMLA leave may use the method providing the most beneficial outcome to that employee, and at the conclusion of the 60-day period the employer may implement the selected option. +29 C.F.R. § 825.200 (e). During the running of the 60-day period in a situation where the employer haspreviously selected a method, the transition must take place in such a way that employees retain the full benefit of 12 weeks of leave under whichever of the two methods is more beneficial to the employee. +29 C.F.R. § 825.200 (d)(1).

Practical Example

Acme Excavators has not notified its employees of the method by which the company will track use of FMLA leave entitlements. One of Acme's employees, Fred, requests FMLA leave to care for a child who has been placed with him for foster care. This is the first time Fred has requested FMLA leave and the first time any of Acme's employees have requested FMLA leave. Acme grants the leave request, beginning on October 1, and Fred uses all of his applicable 12-workweek FMLA entitlement over the next 12 weeks. Toward the end of his 12 weeks of leave, Fred asks for additional FMLA leave due to his own serious health condition. Fred's eligibility for additional leave will depend upon which leave year method is most beneficial to him. Under either the rolling forward or rolling backward methods, Fred would not be eligible for additional leave until October 1 of the following year. However, under the calendar year method, Fred would again become eligible for his full 12-workweek FMLA entitlement beginning January 1st of the following year. Because this method would be the most beneficial to Fred, Acme must use this method.

Fred's situation prompts Acme to select a leave year method to be applied to all of its employees. The company selects the rolling backward method, and distributes a notice to employees informing them of the selection and the fact that it will take effect in 60 days. Fred will retain the ability to have his leave tracked using the calendar year method until he exhausts his leave entitlement for the particular calendar year. Any other Acme employees who request leave during the 60-day notice period will have the most beneficial tracking method applied to them, but after 60 days pass, the "rolling backward" method will be applied to them.

FMLA Leave to Care for a Covered Servicemember - Single 12-Month Period

For FMLA to care for a covered servicemember, an employer does not have the option of selecting one method from a set of different methods to measure employees' leave entitlements. Instead, an employee's entitlement to such leave (generally 26 workweeks per applicable leave year, assuming all other eligibility criteria are met) is always tracked over a single 12-month period.

Calculating the Single 12-Month Period

The single 12-month period is the 12-month period measured forward from the date an employee first uses FMLA leave to care for a covered servicemember, regardless of the method used by the employer to determine the employee's entitlement to FMLA leave for other FMLA-qualifying reasons. +29 C.F.R. § 825.200 (f); +29 C.F.R. § 825.127 (e)(1). If an eligible employee does not use his or her full leave entitlement to care for the covered servicemember during the single 12-month period, the remainder of his/her leave entitlement to care for the applicable covered servicemember is forfeited. Under this method, the next single 12-month period would begin the first time FMLA leave is taken to care for a covered servicemember after completion of any previous 12-month period, providing that the employee meets eligibility requirements relating to subsequent single 12-month periods.

Practical Example

Acme University has chosen a rolling backward leave year method for calculating employees' usage of FMLA for reasons other than caring for a covered servicemember. Jane, an employee at Acme University who used 12 workweeks of FMLA during the six months preceding November 1 of the current year, requests 20 workweeks of FMLA leave to care for her son, who is a covered servicemember with a serious health condition, beginning on November 1. The single 12-month period that must be used to track Jane's exhaustion of her covered servicemember leave entitlement begins on November 1st and ends on October 31 of the following year, despite the fact that Acme uses the rolling backward method to track employees' use of other types of FMLA leave.

Per Service Member, Per Injury or Illness

An employee's 26-workweek entitlement to FMLA leave over a single 12-month period to care for a covered servicemember is applied on a per-covered-servicemember, per-injury/illness basis. +29 C.F.R. § 825.127 (e)(1)-(2). As such, an eligible employee may be entitled to more than one 26-workweek period of leave if one of the following situations apply:

  • The leave is to care for different covered servicemembers; or
  • The leave is to care for the same covered servicemember with a subsequent (and different) serious injury or illness.

+29 C.F.R. § 825.127 (e)(1)-(2). In no case may an employee take more than 26 workweeks of leave within any single 12-month period. +29 C.F.R. § 825.127 (e)(2).

Determining Leave Entitlement

FMLA Leave Generally - 12 Workweeks

For all types of FMLA leave (except leave to care for a covered servicemember), an eligible employee is entitled to 12 workweeks of leave during the applicable 12-month period (the leave year), with two limited exceptions: spousal sharing of leave and leave for airline flight crew employees. See Exception to 12 Workweeks of Leave - Spouses Working for Same Covered Employer; Exception to 12 Workweeks of Leave - Airline Flight Crews. Thus, the 12-workweek entitlement generally applies to leaves for the following reasons:

  • The birth of the employee's son or daughter, and to care for the newborn child;
  • The placement with the employee of a son or daughter for adoption or foster care and to care for the newly placed child;
  • To care for the employee's spouse, son, daughter or parent with a serious health condition;
  • Because of a serious health condition that makes the employee unable to perform one or more of the essential functions of his or her job; and
  • Because of any military exigency.

+29 C.F.R. § 825.200 (a).

Exception to 12 Workweeks of Leave - Spouses Working for Same Covered Employer

An employer may limit spouses who are eligible for FMLA leave and are both employed by the same employer to a combined total of 12 workweeks of leave during any 12-month period if the leave is taken for any of the following reasons:

  • To care for the employee's parent with a serious health condition;
  • For the birth of the employee's child or to care for the child after placement; or
  • For the placement of a son or daughter with the employee for adoption or foster care or to care for the child after placement.

+29 C.F.R. § 825.201 (b); +29 C.F.R. § 825.219 (a)(3); +29 C.F.R. § 825.121 (a)(3). This rule applies even if the spouses are employed by the same employer at different worksites located more than 75 miles from each other, or by two different operating divisions of the same company. However, if one spouse is not eligible for FMLA leave, the other spouse would be able to use the full 12-workweek leave entitlement. Same-sex spouses are required to aggregate FMLA leave for these purposes as opposite-sex spouses do. See Revisions/Changes to the FMLA.

Each spouse would be permitted to use the balance of his or her 12-workweek FMLA leave entitlement on reasons other than those listed above. +29 C.F.R. § 825.201 (b); +29 C.F.R. § 825.219 (a)(3); +29 C.F.R. § 825.121 (a)(3).

This limit on spousal use of FMLA leave does not apply to FMLA leave taken for one of the following reasons:

  • To care for the employee's spouse, son or daughter with a serious health condition;
  • Because of a serious health condition that makes the employee unable to perform one or more of the essential functions of his or her job; or
  • Because of any military exigency.

Practical Example

Ben and Lucy Jones, who both work for Acme Medical Supplies, adopt a child and request bonding leave under the FMLA. Because Ben and Lucy are spouses, Acme can limit the cumulative leave Ben and Lucy take between each other for bonding leave to 12 workweeks. Ben and Lucy take five workweeks of bonding leave at the same time (a total of 10 workweeks). They also would have had the option of staggering their use of bonding leave by having one of them take such leave first, after which the other one could have been able to take bonding leave for the balance of 12 workweeks. Shortly after Ben and Lucy return from bonding leave (and during the same leave year), their adopted child develops a serious health condition. Ben and Lucy each have seven weeks of FMLA remaining, and each of them can take the full seven weeks, if needed, to care for their child, because the 12-workweek cap for spouses does not apply to leave taken to care for child with a serious health condition.

Exception to 12 Workweeks of Leave - Airline Flight Crew Employees

An eligible airline flight crew employee is entitled to 72 days of FMLA leave during any 12-month period for all types of FMLA leave (except leave to care for a covered servicemember). This entitlement is based on a uniform, six-day workweek for all airline flight crew employees, regardless of the time actually worked or paid, multiplied by the statutory 12-week entitlement for FMLA leave. Unlike employees in other industries whose 12-week leave entitlement is based upon their actual work schedule, FMLA leave for flight crew employees is based on a standard six-day workweek. +29 C.F.R. § 825.802(a)(1).

Practical Example

Ben is a pilot for ACME Airlines. When Ben takes six weeks of leave a qualifying serious health condition, Ben will use 36 days for 72-day leave entitlement (6 days x 6 weeks = 36 days).

Exception to 12 Workweeks of Leave - State Law Requirements

If an employer has eligible employees in a state with a family and medical leave statute that permits more than 12 workweeks of leave for one of the reasons referenced above, then the employee may be eligible for additional time off under such state law. See State Requirements.

In states that recognize civil unions or domestic partnerships and provide family and medical leave under state law, employees in civil unions or domestic partnerships may be entitled to more leave than the 12 workweeks allowed under the FMLA.

Leave to Care for a Covered Servicemember - 26 Workweeks

An employee is entitled to 26 workweeks of FMLA leave to care for a covered servicemember with a serious injury or illness during a "single 12-month period" with two limited exception related to spousal sharing of leave and leave for airline flight crew employees. +29 C.F.R. § 825.127 (e); +29 C.F.R. § 825.802 (a)(2).

Exception to 26 Workweeks of Leave - Spouses Working for Same Covered Employer

An employer may limit spouses (including same-sex spouses) who are eligible for FMLA leave and are employed by the same employer to a combined total of 26 workweeks of leave during a single 12-month period if at least part of the leave is taken to care for a covered servicemember and leave for an additional reason(s) is taken for any of the following reasons:

  • To care for the employee's parent with a serious health condition;
  • For the birth of the employee's child or to care for the child after placement; or
  • For the placement of a son or daughter with the employee for adoption or foster care or to care for the child after placement.

+29 C.F.R. § 825.127 (f). This rule applies even if the spouses are employed by the same employer at different worksites located more than 75 miles from each other, or by two different operating divisions of the same company. However, if one spouse is not eligible for FMLA leave, the other spouse would be able to use the full 26-workweek leave entitlement.

Each spouse would be permitted to use the balance of his or her 26-workweek FMLA entitlement on leave reasons other than those listed above. +29 C.F.R. § 825.127 (f). See Qualifying Reasons for Leave.

This limit on spousal use of FMLA leave does not apply to FMLA leave taken for one of the following reasons:

  • To care for the employee's spouse, son or daughter with a serious health condition;
  • Because of a serious health condition that makes the employee unable to perform one or more of the essential functions of his or her job; or
  • Because of any military exigency.

Practical Example

Acme Retail Stores has selected the calendar year as its method for determining when employees have exhausted their FMLA entitlement for leaves other than those to care for a covered servicemember. Ken and Maria Smith, who both work for Acme, have a daughter who is a covered servicemember and sustains serious injuries in the line of duty. Ken and Maria request extended FMLA leave to care for their daughter, beginning on January 5. Because Ken and Maria are spouses, Acme can limit the cumulative leave Ken and Maria take between each other to care for a servicemember to 26 workweeks in the single 12-month period beginning on January 5. Ken and Maria take 10 workweeks of covered servicemember leave at the same time (a total of 20 workweeks). In March, shortly after Ken and Maria return from leave to care for their daughter, Ken's father has a stroke and is in need of care. Ken requests a block of FMLA leave to care for his father. Acme can limit Ken's FMLA leave for this reason to six workweeks through the remainder of the 12-month period that began on January 5, because Ken and Maria already have used 20 of the 26 combined workweeks of leave they are permitted to care for a covered servicemember and a parent with a serious health condition during a single 12-month period.

Exception to 26 Workweeks of Leave - Airline Flight Crew Employees

An eligible airline flight crew employee is entitled to 156 days of FMLA leave during a single 12-month period to care for a covered servicemember with a serious injury or illness. This entitlement is based on a uniform, six-day workweek for all airline flight crew employees, regardless of the time actually worked or paid, multiplied by the statutory 26-week entitlement for FMLA leave. Unlike employees in other industries whose 26-week leave entitlement is based upon their actual work schedule, FMLA leave for flight crew employees is based on a standard six-day workweek. +29 C.F.R. § 825.802(a)(2).

Combination of Leave to Care for a Covered Servicemember and Other FMLA Leaves

To the extent that an employee uses some FMLA leave to care for a covered servicemember but does not use his or her entire 26-workweek entitlement for that reason, the employee is entitled to a combined total of 26 workweeks of leave for any FMLA-qualifying reason during the applicable single 12-month period, with the following caveats:

  • A maximum of 12 of the 26 workweeks may be taken for reasons other than caring for a covered servicemember; and
  • The employee's ability to take the 12 workweeks of leave for reasons other than caring for a covered servicemember is also dependent on whether or not the employee has exhausted his/her entitlement to such leave during the leave year (chosen by the employer) that is applicable exclusively to such leaves.

+29 C.F.R. § 825.200 (g); +29 C.F.R. § 825.127 (e)(3). As a result of these requirements, when an employee attempts to take FMLA leave to care for a covered servicemember combined with FMLA leave for any other reason, the employer must consider the different leave year methods that are applicable to the respective types of leave in order to determine the employee's FMLA entitlement.

Practical Example

Acme Pharmaceuticals has adopted a rolling backward method for its FMLA leave year applicable to leave reasons other than caring for a covered servicemember. Patty, a district sales manager for Acme who had not taken FMLA leave for several years, took 10 consecutive weeks of FMLA leave beginning on January 1st to care for her mother who had a serious health condition. Shortly after returning, she learned that her son, a covered service member, contracted a serious illness while in the line of duty and she took 14 consecutive weeks of FMLA leave, beginning April 1st, in order to care for him.

After returning from that leave, her mother's health again took a turn for the worse and Patty requested additional leave to care for her. Even though she would otherwise be entitled to a cumulative total of 26 workweeks of leave during the single 12-month period beginning on April 1 and ending on March 31 of the following year, Patty's FMLA leave entitlement for reasons other than covered servicemember leave (including leave to care for a parent) is limited to two additional weeks until she begins recouping additional days of such leave beginning January 1 of the following year (pursuant to the "rolling backward" method).

Stacking of FMLA Leave Time

All but one of the methods for tracking employees' use of FMLA leave entitlements permit employees to "stack" leave time at the end of one leave year and the beginning of the next leave year, as follows:

  • If an employer selects the calendar year method of tracking FMLA leave, an otherwise eligible employee can stack up to 12 workweeks of leave taken at the end of one calendar year with an additional 12 workweeks of leave taken at the beginning of the following calendar year. +29 C.F.R. § 825.200 (c).
  • If an employer selects a particular fixed leave year for tracking FMLA leave (such as an anniversary year or a fiscal year), an otherwise eligible employee can stack up to 12 workweeks of leave taken at the end of the particular fixed year with an additional 12 workweeks of leave taken at the beginning of the following fixed year. +29 C.F.R. § 825.200 (c).
  • If an employer selects a rolling forward leave year for tracking FMLA leave, an otherwise eligible employee can similarly stack leave entitlements, although it is less likely to happen with this method than with the calendar and fixed year method. Stacking can happen under the rolling forward method when the employee initially uses an increment of leave that is less than his or her full 12-workweek leave entitlement. This makes it possible for the employee to use the remainder of his/her entitlement toward the end of the 12-month period that began when the employee used the initial increment of leave. After the 12-month period ends, a new 12-month period can begin immediately, which can result in stacking of leave at the end of one leave year and the beginning of the next. +29 C.F.R. § 825.200 (e).
  • An employee taking FMLA leave to care for a covered servicemember (which is always calculated on a rolling forward method) can feasibly stack leave entitlements, although it is unlikely to happen. Stacking can happen in this situation if the employee initially uses an increment of leave that is less than his/her full 26-workweek leave entitlement. This makes it possible for the employee to use the remainder of his or her entitlement toward the end of the 12-month period that began when the employee used the initial increment of leave. After the 12-month period ends, a new 12-month period can begin immediately (provided the employee is needed to care for a new servicemember or the same servicemember with a new injury or illness), which can result in stacking of leave at the end of one leave year and the beginning of the next. +29 C.F.R. § 825.127 (e).

The only method for calculating the use of FMLA leave that does not allow the stacking of leave at the end of one leave year and the beginning of the next is the "rolling backward" method that employers may use for tracking FMLA leave for reasons other than caring for a covered servicemember. +29 C.F.R. § 825.200 (c).

Practical Example

Paul's employer, Acme Soup Co., uses a calendar year (January 1 through December 31) to calculate FMLA leave entitlement. Beginning in mid-October through the end of the year, Paul takes his full 12 weeks of FMLA leave. At January 1, Paul's 12 week entitlement replenishes. Thus, Paul will be able to take 12 more weeks of leave beginning on January 1.

Practical Example

Lori's employer, Acme Bank, uses a fixed year method, based on its fiscal year (July 1 through June 30) to calculate FMLA leave entitlement. Lori takes her full 12 weeks of FMLA leave between April and June. Starting July 1, Lori will have another 12 weeks of FMLA available to her.

Practical Example

Allen's employer, Acme Consulting, uses a rolling forward method to calculate FMLA leave entitlement. Allen first uses FMLA leave on November 1. At that time, he uses two weeks. Near the end of August, Allen again wishes to use FMLA leave and learns that he has 10 weeks left in his applicable 12-month period. Once he has exhausted all 12 weeks, Allen will not be eligible for another 12 weeks of FMLA until November 1. At that time, he will have another 12 weeks of leave available to him over a 12-month period.

Holidays and Temporary Cessations of Business

Holidays that occur within a full workweek taken as FMLA leave have no bearing on the calculation of the amount of leave used by an employee during that week; the week should be counted as a full workweek of leave. However, when the employee uses FMLA leave in increments of less than one week, a holiday falling within a particular week cannot be counted against the employee's FMLA entitlement, unless the employee was otherwise scheduled and expected to work during the holiday. +29 C.F.R. § 825.200 (h).

Practical Example

Casey, Michelle and Diane all work for Acme Computer Co. Each of them is taking FMLA leave intermittently for his or her own serious health condition. Casey takes his leave in full week increments. This year Christmas falls on a Wednesday. Because Casey is taking the whole week of Christmas off for FMLA reasons, the fact that Christmas is on Wednesday does not matter. He is still charged with one week of FMLA leave.

Practical Example

Michelle takes FMLA leave in day long increments. She is not scheduled to work on Christmas day. However, Michelle takes the day before Christmas (Tuesday) and the day after Christmas (Thursday) off for FMLA purposes. Because she was not scheduled to work on Christmas day, Christmas day will not be counted toward her FMLA leave entitlement.

Practical Example

Diane also takes FMLA in day long increments. However, she is scheduled to work on Christmas day and takes it off for FMLA purposes. Because Diane was scheduled to work on the holiday, the day will be counted toward Diane's FMLA leave entitlement.

If an employer's business activity temporarily ceases and employees in general are not expected to report for work for one or more weeks (for example, a school closes for the summer or an employer closes a plant for repairs), the days the employer's activities have ceased do not count against any employee's FMLA leave entitlement. +29 C.F.R. § 825.200 (h).

Practical Example

Chris works for Acme Bakery. Historically, the last two weeks of July is a very slow period for the Bakery. Therefore, every year Acme Bakery closes down operations at that time. Chris started an FMLA leave on July 1 and is scheduled to return to work on August 1. Chris' time off in the last two weeks of July will not be charged to his FMLA entitlement because Acme Bakery was not operating and Chris would have been given the time off from work anyway.

Administering and Processing Intermittent and Reduced Schedule Leave Requests

One of the most challenging aspects of FMLA administration for employers is dealing with employees' requests for intermittent and reduced schedule leave.

Intermittent Leave and Reduced Schedule Leave - Defined

Intermittent leave is leave taken in separate blocks of time due to a single FMLA-qualifying reason rather than in one long block of time. For example, if a pregnant woman takes separate blocks of time to attend her prenatal visits, rather than one long block of time, this would be intermittent leave. +29 C.F.R. § 825.202 (a).

Reduced schedule leave is a scheduled leave that reduces the usual number of working hours that an employee works in a workday or workweek. For example, an employee diagnosed with cancer requests to work a part-time schedule while undergoing chemo treatments. This change in the employee's schedule for a set period of time would be considered a reduced schedule leave. Reduced schedule leave requests often result in the employee moving from a full-time to a part-time schedule. +29 C.F.R. § 825.202 (a).

Employee Notice of Intermittent or Reduced Schedule Leave

As with other types of FMLA leave, an employee must put the employer on notice that he or she is requesting intermittent or reduced schedule FMLA leave (as opposed to blocks of time). An employer may require an employee to use the employer's customary and usual notice and other procedural requirements to request leave. The employee's failure to follow the employer's procedures may be viewed as an employee's failure to provide the necessary notice of the need for FMLA leave.

Notice of Foreseeable Intermittent or Reduced Schedule Leave

When the need for intermittent leave is foreseeable (e.g., planned doctor visits for a serious health condition or planned medical treatments for a covered servicemember), an employer may require that an employee provide 30 days' advance notice before the leave is needed. If an employee fails to provide at least 30 days' notice when leave is foreseeable, the employer may request information regarding why 30 days' notice was not provided. The employee must explain the reasons why advance notice was not practicable, such as a lack of knowledge of approximately when the leave must begin or a medical emergency. If the employee fails to comply with the 30-day notice requirement, the employer may delay or deny leave.

In foreseeable intermittent or reduced schedule leave situations, an employee should:

  • Advise the employer of the reasons why intermittent and or reduced schedule leave is medically necessary;
  • Provide a schedule of medical treatment; and
  • Consult with the employer and make a reasonable effort to schedule the leave to not unduly disrupt the employer's business operations.

Notice of Unforeseeable Intermittent or Reduced Schedule Leave

The need for FMLA intermittent leave can often arise unexpectedly, which will require the employee to take unscheduled leave. When the need for leave cannot be predicted or unexpectedly changes, the leave is considered unforeseeableFMLA leave. In these situations, an employee must provide notice to the employer as soon as practicable under the situation's circumstances. Notice is usually practicable within the time frames established by the employer's customary and usual notice requirements.

However, if an employer's customary and usual notice requirement includes requiring an advance written request for leave, the employee will be excused from that requirement until a later time. An employee will also be excused from immediately complying with an employer's call-in procedures when the need for intermittent leave is unforeseeable (i.e., an emergency medical situation). +29 C.F.R. § 825.303 (c).

Practical Example

Acme Hospital maintains an absence-reporting policy that requires employees to notify their supervisors two hours in advance of the start of their shifts, so that the hospital can arrange for alternative coverage. Acme has granted one of its nurses, Amy, intermittent FMLA leave to care for her daughter who has asthma. One day, when Amy is preparing to go to work, her daughter has an asthma attack one hour before her scheduled shift and Amy has to take her to the hospital emergency room. Amy calls her supervisor as soon as her daughter is stabilized to report that she needs to be off from work, but she is too late to comply with Acme's policy. In this circumstance, Acme cannot discipline Amy for missing the call-in deadline, because there were extenuating circumstances related to her FMLA leave that prevented her from complying, and she called in as soon as it was feasible for her to do so.

Required Intermittent and Reduced Schedule Leave

An employer must grant an employee intermittent or reduced schedule leave when:

  • The employee has a serious health condition;
  • The employee is needed to care for a spouse, parent or child with a serious health condition;
  • It is medically necessary for the employee to care for a servicemember with a serious injury or illness; or
  • The employee needs to take a military exigency leave to deal with events that arise out of a military member's covered active duty or call to covered active duty, such as making childcare arrangements.

+29 U.S.C. § 2612 (b)(1); +29 C.F.R. § 825.202 (b).

Generally, in order to take intermittent or reduced schedule leave for an employee's own serious health condition, there must be a medical need for the leave (as opposed to a voluntary treatment) that can be best accommodated through such a schedule. An employer usually will obtain this information through the certification process. See Requesting Certification of the Need for Leave. Examples of medical need for intermittent leave would be:

  • Medical appointments;
  • Prenatal appointments;
  • Chemotherapy appointments; or
  • To provide psychological comfort to a covered servicemember suffering from post-traumatic stress disorder (PTSD).

Intermittent or reduced schedule leaves may be taken for both planned 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 appointments or receive chemotherapy treatments. +29 C.F.R. § 825.202 (b).

An employer should be aware that due to an apparent oversight by the DOL, the current FMLA regulations do not reference the fact that an employee is eligible for intermittent leave if it is medically necessary to care for a spouse with a serious medical condition. However, the FMLA statute is clear that intermittent leave is available in this circumstance. +29 U.S.C. § 2612 (b)(1). Further, the DOL applies the medical necessity requirement to intermittent and reduced leave schedules to leave to care for a spouse's serious health condition, as well. More information is available on the DOL's website.

Military exigency leaves do not have to be medically necessary in order to be taken on an intermittent or reduced schedule leave basis.

Practical Example

Ken is a delivery driver for Acme Bakery, working 40 hours per week. He has a chronic back problem that prompts him to request FMLA leave. He submits a medical certification indicating that he cannot work in his driver position for more than 30 hours per week due to his back ailment. Assuming he is otherwise eligible for FMLA leave and Acme does not obtain a contrary certification through the second or third opinion certification process, Ken is entitled to FMLA reduced schedule leave, and he cannot be required to work more than 30 hours per week. Ken will use one fourth of a workweek of his 12-workweek FMLA entitlement during each week he is scheduled to work.

See Qualifying Reasons for Leave.

Optional Intermittent and Reduced Schedule Leave

Child Bonding

If employees want to take intermittent leave or leave on a reduced schedule after the birth of a healthy child or the placement of a healthy child for adoption or foster care, they may only do so if the employer agrees to provide leave on this basis. Many employers agree to intermittent leave in order to retain valuable employees. If an employer agrees to provide intermittent leave for child bonding, it should clearly document the terms of the intermittent leave in writing and have it signed by the employee.

If the employer does not agree to provide bonding leave on an intermittent or reduced schedule basis, the employee can still take leave for these reasons in a single block of time. +29 C.F.R. § 825.202 (c). While an employer can require employees to take leave to care for a newborn or adopted baby in a single block of time, the employer cannot require the employee to take his or her leave immediately after the child is born or adopted.

If a mother has a serious health condition as a result of the birth of her child or if the newborn child has a serious health condition, the employee will be eligible to take intermittent or reduced schedule leave without the agreement of the employer because the leave is for those serious health conditions, not just for bonding with the child.

Certification for Intermittent or Reduced Schedule Leave

The medical certification form is an important tool for managing intermittent and reduced schedule leave. The certification requirements for intermittent leave and reduced schedule leave are the same as requirements for other types of FMLA leave (i.e., providing employee with written notice of the certification requirement and consequences of failure to provide certification). See Requesting Certification of the Need for Leave.

However, in the case of intermittent and reduced schedule leave, the certification form can be used to determine if intermittent or reduced schedule leave is medically necessary and can be used to curb abuse. See Curbing FMLA Fraud and Abuse. An employer should scrutinize certifications submitted in support of an employee's requests for intermittent or reduced schedule leave to make sure the health care provider:

  • Provided the predicted frequency and duration of the employee's need for intermittent leave in terms of times per week or month, and hours or days per episode (meaning, the certification does not just say unknown or indeterminate);
  • Stated that intermittent and/or reduced leave schedule is medically necessary; and
  • Provided the likelihood of unforeseeable episodes of incapacity or flare ups, and the frequency and duration of such episodes or flare ups.

The DOL's certification forms have a subsection focused on intermittent or reduced schedule leave for ongoing treatment or medical conditions. A copy of the certification forms is available on the DOL website. The health care provider is given detailed questions that the provider must answer before the employee is entitled to intermittent or reduced schedule FMLA leave. An employer must also follow the process for seeking complete and clear certifications if the health care provider leaves out any information or the provider's answers require clarification. See Requesting Certification of the Need for Leave.

An employer dealing with an employee on intermittent or reduced schedule leave has the right to require recertification of an employee's need for leave for certain types of FMLA leave during a leave year. See New Certifications and Medical Recertification During FMLA Leave. In addition, when the employee's need for leave due to the employee's own serious health condition or the serious health condition of the employee's covered family member lasts beyond a single leave year, an employer may require the employee to provide a "new" certification with each subsequent leave year. +29 C.F.R. § 825.304 (e).

Practical Example

Molly's father falls and breaks his hip. Molly and her siblings take turns transporting him to his doctor's appointments and staying with him in his home to help him cook and care for himself until his hip heals. Molly, a research scientist at Acme Chemical Co., takes FMLA leave on an intermittent basis to help care for her father. After getting the required certification, she works with her manager to adjust her department's schedule so that the project she is working on will still be fully functioning when she is gone.

Recertification of Intermittent or Reduced Schedule Leave

Many of the same rules that apply to recertifications for other FMLA leaves apply to FMLA leaves involving intermittent or reduced schedule leaves. See New Certifications and Medical Recertification During FMLA Leave. Importantly, recertification of an employee's own serious health condition or a family member's serious health condition may be obtained:

  • After six months have passed since the original certification; and
  • The employee needs leave for that reason after that six-month period has passed.

+29 C.F.R. § 825.308 (b).

Further, as with other leaves, an employer may request recertification if:

  • The employee requests an extension of leave;
  • The circumstances described by the previous certification have changed significantly (e.g., with regard to frequency or duration of absences, the severity of the illness, or complications); or
  • The employer receives information that casts doubt upon an employee's stated reason for the absence, such as suspect timing of the use of intermittent or reduced schedule leave (e.g., every Monday and Friday) or a co-worker's report that the employee fabricated the need for FMLA leave.

+29 C.F.R. § 825.308 (c)(1)-(3). See New Certifications and Medical Recertification During FMLA Leave.

There is no recertification provision for leave to care for a covered servicemember or to address a military exigency. +29 C.F.R. § 825.309 ; +29 C.F.R. § 825.310 (d).

Designating Intermittent or Reduced Schedule Leave

An employer is required to provide a written designation notice to an employee advising the employee if his or her intermittent leave request has been approved and designated as FMLA leave or denied. See Designation Notice. If an employee will be taking FMLA leave on an unscheduled intermittent basis, the employer will not be able to include in the designation notice the actual amount of time off that ultimately will be designated as FMLA leave.

The DOL's prototype form, WHD Publication 382, includes language that an employer can select to notify such an employee that he or she has a right to request information about how much of his or her time off actually taken will be counted against the employee's FMLA entitlement. If the employee later requests such information, the employer must provide notice of the amount of leave counted against the employee's FMLA leave entitlement no more often than once in a 30-day period and only if leave was taken in that period.

The employer's notice may be delivered orally or in writing. However, if such notice is oral, it must be confirmed in writing, no later than the following payday (unless the payday is less than one week after the oral notice, in which case the notice must be provided no later than the subsequent payday). The written notice may be in any form, including a notation on the employee's pay stub.

Once an employer has received enough information from the employee to designate the original request for intermittent leave time as FMLA-protected leave, the employee has an obligation to reference either that qualifying reason or the need for "FMLA leave" when providing notice of his or her need for time off in order to receive FMLA protection. +29 C.F.R. § 825.302 (c); +29 C.F.R. § 825.303 (b). Simply calling in sick without providing additional information will not be considered to be sufficient notice to trigger FMLA-protected leave. See Designation Notice.

Increments of Intermittent Leave

The Minimum Increment Rule and Test

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, as long as:

  • The time increment is not greater than one hour; and
  • The employee's FMLA leave entitlement is not reduced by more than the amount of leave actually taken.

+29 C.F.R. § 825.205 (a)(1). An employer also is permitted to use an increment less than the shortest period used to account for other forms of employee leave. Special rules apply to employers of flight crew employees, however. +29 C.F.R. § 825.802 (b).

Practical Example

Acme Drug Store provides employees with three types of leave other than FMLA leave, which employees can take in the indicated increments: sick time (30-minute increments); personal time off (one-hour increments); and vacation time (full-day increments). The greatest increment of time Acme Drug can use to account for FMLA leave is 30 minutes, which is the smallest increment of leave it uses to account for any other form of leave.

If an employer has a system where it permits employees to use leave in different increments at different times of the day, the employer may count FMLA leave using the shortest increment that applies to other leaves during the same period. +29 C.F.R. § 825.205 (a)(1).

Practical Example

Acme Marketing has a payroll system that measures all leaves in one hour increments. Therefore, Acme Marketing can require employees to take FMLA leave in minimum increments of one hour or less. Thus, if Joe wants to take 50 minutes of FMLA to attend a doctor's appointment, Acme Marketing can require Joe to take at least one hour. This system helps simplify intermittent FMLA tracking. If Joe returns to work after only 50 minutes, Acme can tell him he has to wait an additional 10 minutes before performing any compensable work.

However, if Joe returns to work after only 50 minutes and immediately begins performing compensable work, Acme Marketing can only deduct 50 minutes from his FMLA leave allotment. However, Acme would be able to discipline Joe for violating its minimum increment requirement.

Practical Example

Acme Drug Store provides employees with three types of leave other than FMLA leave, which employees generally can take in the indicated increments: sick time (30-minute increments); personal time off (one-hour increments); and vacation time (full-day increments). However, Acme Drug adopts a rule providing that sick time can only be taken in one-hour increments at the start of an employee's shift. In light of that change, Acme Drug can also begin requiring that employees using FMLA leave at the start of their shifts must do so in one-hour increments. However, in order to do so, Acme Drug must not permit the employee who is tardy due to an FMLA-qualifying reason to perform any work until the one-hour increment has passed; otherwise, Acme Drug would be impermissibly requiring the employee to exhaust more FMLA time than the employee actually used.

Special Rule for Airline Flight Employees

When an airline flight crew employee takes leave on an intermittent or reduced schedule basis, an employer must account for the leave using an increment no greater than one day. +29 C.F.R. § 825.802 (b).

Practical Example

Ben works as a flight attendant for Acme Airlines and needs to take two hours of FMLA leave for a physical therapy appointment. Acme Airlines may require Ben to use a full day of FMLA leave for the appointment.

The Physical Impossibility Exception

As noted above, generally an employee cannot be charged for taking more FMLA leave than the FMLA-qualifying reason for leave requires his or her to use. However, the DOL recognizes that in some situations it will be impossible for an employee using intermittent leave or working a reduced schedule to begin or stop working mid-way through a shift, such as when a flight attendant is scheduled to work aboard an airplane or an employee works in a sealed "clean room" and cannot enter or leave the room during a certain period of time and no equivalent position is available.

In such a case, the employer can designate as FMLA leave the entire time that the employee is forced to be absent as a result of his or her inability to begin or end his or her workday at the time required by the FMLA-qualifying reason for leave. +29 C.F.R. § 825.205 (a)(2). The DOL has stressed that this provision is intended to deal only with situations in which it is impossible for someone to start mid-shift, not situations where it is inconvenient or even burdensome for them to do so. See Fact Sheet #28I: Calculation of Leave under the Family and Medical Leave Act.

Practical Example

Sally is a flight attendant for Acme Airlines. She submits a certification that would support reduced-schedule FMLA leave due to a chronic neck pain issue. The certification states that it is medically necessary for Sally to work a maximum of eight hours in a workday. However, on some days her job requires her to be in flight for periods exceeding eight hours. In light of her restrictions, Sally cannot work at all on such days. The physical impossibility provision of the FMLA regulations would permit Acme Airlines to treat such days of as full-day - rather than partial-day - usages of FMLA.

Tracking Intermittent and Reduced Schedule Leave

An employer must remember when it calculates the leave an employee takes on an intermittent or reduced leave schedule that the basis for the leave entitlement is the actual workweek, not a set number of hours that may be used for all employees unless the employee is a flight crew employee. +29 C.F.R. § 825.205 (b)(1); +29 C.F.R. § 825.802 (c).

Only the amount of leave actually taken will count toward the employee's leave entitlement. For example, if an employee who would otherwise work 40 hours a week takes off eight hours that week, the employee would use one-fifth of a week of FMLA leave. Similarly, a part-time employee who is on a reduced schedule leave and works 20 hours instead of 30 hours per week is using one-third of an FMLA leave week. As set forth below, special rules apply to instructional employees in elementary and secondary schools. An employer may convert these fractions of workweeks to its hourly equivalents as long as the conversion is accurately based on the employee's total normally scheduled hours. +29 C.F.R. § 825.205 (b)(1).

If an employee's schedule varies from week to week to such a degree that an employer is unable to determine with certainty how many hours the employee otherwise would have worked, an employer is required to use the average of the hours that the employee was scheduled over the prior 12 months in order to determine the employee's typical workweek. When doing this calculation, an employer is required to include any hours for which the employee took any type of leave. +29 C.F.R. § 825.205 (b)(3).

Practical Example

Jack is a warehouse employee at Acme Manufacturing, working 40 regular hours and 10 mandatory overtime hours per week. Jack sustains an arm injury that prompts him to request FMLA leave. His medical certification indicates that he cannot work in for more than 40 hours per week due to his arm injury. Assuming he is otherwise eligible for FMLA leave and Acme does not obtain a contrary certification through the second/third opinion certification process, Jack is entitled to FMLA reduced schedule leave, and he cannot be required to work the 10 hours of weekly overtime that is part of his normal schedule. Jack will use one fifth of a workweek of his 12-workweek FMLA entitlement during each week he is scheduled to work. Jack's FMLA entitlement can be converted to an hourly equivalent of 600 hours (12 workweeks times 50 hours equals 600 total hours).

Special Rules for Elementary and Secondary Schools

Because of the nature of elementary and secondary schools, there are special regulations on the use of intermittent or reduced schedule leave that apply to instructional employees. Instructional employees include those employees whose principal function is to teach and instruct students in class or in individual settings. It therefore includes not only teachers, but also special education assistants, athletic coaches, and driving instructors. It does not, however, apply to teachers' assistants or aides, or to auxiliary personnel such as school counselors. +29 C.F.R. § 825.600 .

If instructional employees take leave for a period that ends with the school year and begins the following semester, the employee is deemed to have taken consecutive leave, not intermittent leave. +29 C.F.R. § 825.601 (a). Since the employees would not have been required to report to work during their summer vacation, this time cannot be counted against their FMLA leave entitlement. They must be provided with any benefits that they normally would receive had they been working at the end of the school year, however. +29 C.F.R. § 825.601 (a).

If an instructional employee needs intermittent leave or reduced schedule leave for his or her own serious health condition, to care for a family member with a serious health condition, or to care for a servicemember, and the leave is foreseeable based on planned medical treatment and would put the employee on leave for more than 20 percent of the total number of working days over which the leave period would extend, the school may require the instructional employee to either:

  • Take leave for a period or periods of a particular duration, not to exceed the duration of the planned treatment; or
  • Transfer temporarily to an alternative position for which the employee is qualified that better accommodates recurring periods of leave than does the employee's regular position and has equivalent pay and benefits. +29 C.F.R. § 825.601 (a)(1).

Leave for a period of particular duration refers to leave in a single, uninterrupted period of time beginning on the first day on which leave is needed and ending on the last day the leave is needed. If an instructional employee takes leave in this fashion, all of the days will count toward the employee's FMLA entitlement. +29 C.F.R. § 825.601 (a)(2).

If an instructional employee does not give the required notice of foreseeable leave that needs to be taken intermittently or on a reduced leave schedule, the employer also may require the employee to take leave for a particular duration or may transfer the employee temporarily to an alternative position. As with other FMLA leaves, the employer alternatively may delay granting the leave until the notice requirement has been met. +29 C.F.R. § 825.601 (b).

Importantly, these special rules regarding leave for a period of a particular duration and transfer to alternate positions only apply when the leave involves more than 20 percent of the working days in the period over which the leave will be taken. +29 C.F.R. § 825.601 (a)(2).

There are additional special rules that apply to instructional employees who will begin leave more than five weeks before the end of a term, fewer than five weeks before the end of the term and fewer than three weeks before the end of the term, as follows:

  • When an instructional employee begins leave more than five weeks before the end of the term, the leave will last at least three weeks, and the employee would return to work during the three-week period before the end of the term, the employer may require the employee to continue taking leave until the end of the term. +29 C.F.R. § 825.602 (a)(1).
  • When an employee begins leave during the five-week period before the end of the term because of the birth of a child, the placement of a child for adoption or foster care, to care for a spouse, child or parent with a serious health condition or to care for a servicemember, the employer also may require the employee to continue taking leave until the end of the term if the leave will last more than two weeks and the employee would return to work during the two-week period before the end of the term. +29 C.F.R. § 825.602 (a)(2).
  • When an employee begins leave during the three-week period before the end of the term because of the birth of a child, the placement of a child for adoption or foster care, to care for a spouse, child or parent with a serious health condition, or to care for a servicemember, the employer may require the employee to continue taking leave until the end of the term if that leave will last more than five working days. +29 C.F.R. § 825.602 (a)(3).

If an employer requires an employee to take leave until the end of the term in the three situations detailed above and the employee is able to return to work before the end of the term, the employer may only count the time until the employee was released to return to work as FMLA leave. It may not count the entire time period. +29 C.F.R. § 825.603 (b).

Fair Labor Standards Act (FLSA) - Considerations for Intermittent Leave

Overtime

If an employee normally is required to work overtime but is unable to do so because an FMLA-qualifying reason limits the employee's ability to work overtime, the hours that the employee would have been required to work may be counted toward the employee's FMLA entitlement as either intermittent or a reduced schedule leave. For example, if employees typically are required to work 48 hours a week, and an employee only works 40 hours due to an FMLA-qualifying reason, the employee has taken one-sixth of a week of FMLA leave during that workweek. An employer must remember, however, that an employee who does not volunteer for overtime that is offered, but not required, is not using FMLA leave by choosing not to work the overtime. +29 C.F.R. § 825.205(c). See also The Bermuda Triangle Has Expanded: The FMLA's Intersection with the ADA, Workers' Compensation and More.

Pay Docking for Intermittent Leave

An employee who is exempt from both the minimum wage and overtime requirements of the FLSA as a salaried executive, administrative, professional, or computer employee may have deductions taken from his or her pay for any hours the employee takes on intermittent leave or reduced schedule leave without affecting exempt status. +29 C.F.R. § 825.206(a).

Fluctuating Workweek Method for Paying Overtime

Another special rule applies to employees who are paid in accordance with the fluctuating workweek method of paying overtime. See Overtime: Federal. The fluctuating workweek is based upon the concept that certain employees may work more in some weeks and less in others on a fairly regular basis. +29 C.F.R. § 778.114. To account for this fluctuation, the employer and employee agree upon a guaranteed weekly salary designed to adequately compensate the employee for all time worked - whether straight time hours or overtime hours.

Under the FMLA, during the period in which employees who work on a fluctuating workweek basis take intermittent or reduced schedule leave, an employer may pay these employees on an hourly basis and pay them only for the hours worked. When an employee's compensation is changed in this way, the employee must be paid time and one-half the employee's regular rate of pay for the overtime hours. +29 C.F.R. § 825.206(b). Importantly, this change in the pay methodology must cover the entire period during which the employee is taking intermittent leave, including weeks in which no leave is being taken.

In order to determine the hourly rate of pay for these employees, the employee's weekly salary is divided by the employee's normal or average schedule of hours worked during the weeks in which FMLA is not being taken. An employer that wishes to make such a change in pay for an employee paid on a fluctuating workweek basis must do so with respect to all of the employees who are paid on a fluctuating workweek basis who take intermittent or reduced schedule FMLA leave.

An employer that does not convert these employees to hourly pay for intermittent or reduced schedule leave for FMLA purposes may not make any deductions from the previously agreed upon salary. Doing so would violate the rules governing the fluctuating workweek method of pay. +29 C.F.R. § 825.206(b). The concept of the fluctuating workweek, as well as how such a concept is administered under the FMLA, is very complicated. An employer should consult legal counsel when dealing with these issues.

Compensability of Break Time Taken as Intermittent Leave

An employer may permit employees to use small increments of FMLA intermittent leave, such as short breaks during the workday that are certified by the employee's health care provider. The Department of Labor (DOL) issued an Opinion Letter addressing the question of whether the FLSA requires a nonexempt employee to receive pay during hourly 15-minute rest breaks certified by a health care provider for a serious health condition. Although the FLSA requires employees to be paid for rest breaks that are 20 minutes or shorter, the DOL reasoned that short breaks taken as FMLA intermittent leave predominantly benefit the employee and therefore do not count as compensable work time. The Opinion Letter goes on to state that employees taking unpaid FMLA-protected breaks must still receive as many paid regular rest breaks as other employees. Note that Opinion Letters do not carry the weight of the law, and a court need not defer to them; however, an employer that has an identical fact pattern may be shielded from liability if it follows an Opinion Letter.

Holidays and Temporary Cessations of Business

If an employee is taking FMLA leave in increments of less than one week, any holiday that falls during that week will not be counted toward the employee's FMLA entitlement unless the employee was scheduled or otherwise expected to work during the holiday. Similarly, if the employer shuts down its operations temporarily, such as during the end-of-the-year holidays, the days that the employer ceases its operations do not count against employees' FMLA entitlement. +29 C.F.R. § 825.200(h).

Temporary Transfer of an Employee on Intermittent or Reduced Schedule Leave

Under certain limited circumstances, an employer is permitted to transfer an employee taking intermittent or reduced schedule leave. Specifically, an employer may require the employee to transfer temporarily to an alternative position for which the employee is qualified and which better accommodates recurring periods of leave if the employee's need for intermittent or reduced schedule leave is foreseeable and is based on planned medical treatment for the following FMLA-qualifying reasons:

  • The employee's serious health condition;
  • To care for a covered family member with a serious health condition; and
  • To care for a covered servicemember with a serious injury or illness.

+29 C.F.R. § 825.204 (a). An employer must remember that temporary transfers for the reasons above are limited to foreseeable leave based on planned medical treatment or the recovery from it, not for unplanned medical treatment.

An employer also may require a temporary transfer where the employer and employee have agreed to permit intermittent or reduced schedule leave for purposes of child bonding. +29 C.F.R. § 825.204 (a). In this situation, planned medical treatment does not have to be involved in order for the transfer to be permitted.

A transfer may involve altering an existing position to better accommodate the employee's need for leave. +29 C.F.R. § 825.204 (b).

If an employee is transferred to an alternative position, the alternative position:

  • Must have an equivalent pay and benefits (not duties);
  • Cannot be used to discourage the employee from taking leave by, for example changing the employee's shift from daylight to nighttime or transferring the employee to work out of a distant location;
  • Must end once the employee no longer needs the leave, or it is no longer foreseeable (in which case the employee should be reinstated to same or equivalent position as prior to leave); and
  • Must comply with any applicable collective bargaining agreement, federal law (such as the Americans with Disabilities Act) and state law.

+29 C.F.R. § 825.204 (b)-(d).

See Employee Management > Disabilities (ADA) > Duty to Accommodate and the Interactive Process; Labor Relations > Collective Bargaining Process; See State Requirements.

Practical Example

John works as a sales executive for Acme Travel. As part of his job, John has to conduct trainings in Acme Travel's various locations three days per week. Unfortunately, John's son was diagnosed with cancer, and John's doctor certified that John will need to take his son to his cancer treatments for four hours per day during the next 15 weeks. Since John can no longer travel three days per week, Acme Travel can transfer him to a different position with equivalent benefits and pay. However, it cannot transfer him to an administrative position that would discourage him from taking the leave.

Returning from Intermittent Leave

When an employee returns from intermittent or reduced schedule leave, he or she must be reinstated to his or her job prior to leave or an equivalent position. See Reinstating Employees Returning From FMLA Leave. An employer may require that employees provide notice of their intent to return to work; however, the employer may not require that employees take more leave than necessary just so the employer can locate a job to place the employee in. An employer is also allowed to require a fitness-for-duty certification for intermittent leave if the employer has a reasonable safety concern, which is a reasonable belief of a significant risk of harm to the employee's safety or others, considering the nature and severity of the potential harm and the probability of occurrence. Fitness-for-duty certifications cannot be required more than once every 30 days.

Practical Example

Barbara is a pilot for Acme Airlines. She has a serious health condition related to periodic or intermittent blackouts and every two to three weeks takes intermittent leave to receive care for and recover from those blackouts. Every 30 days, Acme Airlines asks Barbara to submit a fitness-for-duty certification certifying she can perform the essential functions of her job as they relate to her serious health condition. The performance of Barbara's job as a pilot implicates safety concerns. Moreover, the likelihood or severity of potential harm that could be suffered if Barbara was not certified as fit for duty, it seems reasonable for Acme Airlines to have safety concerns and to request the fitness-for-duty certifications from Barbara each time she returns from intermittent leave.

Challenges of Intermittent or Reduced Schedule Leave

Some of the more common challenges with intermittent and reduced schedule leave involve:

  • Identifying and accurately tracking intermittent and reduced schedule leave;
  • Scheduling around an employee's intermittent and reduced schedule leave;
  • Employees that abuse intermittent leave and try and spread it out over years, without exhausting it;
  • Seemingly limitless use of intermittent leave for qualifying exigencies; and
  • Dealing with a reduced workforce at the last minute.

Methods to Prevent Abuse

Intermittent and reduced schedule leave are frequently abused by employees. In order to prevent abuse, an employer can do the following things:

  • Scrutinize the employee's medical certification;
  • Require a new certification if the employee's reason for leave changes, which will assist an employer in clearly identifying what the employee needs and why;
  • Provide a copy of the employee's absences to the health care provider at the time the employer requests a recertification of a serious health condition and request that the provider confirm that the employee's need for leave is consistent with the employee's pattern of absences;
  • Require employees to adhere to scheduled foreseeable intermittent leave;
  • Require employees speak with their managers prior to foreseeable intermittent leave. This is an interactive process wherein the employee advises the employer why he or she is taking time off and both parties attempt to schedule the leave so as to not disrupt business operations (unless impossible due to emergency);
  • Create a tracking system in order to track intermittent leave and notify the employer when the employee's FMLA entitlement is nearing exhaustion;
  • Obtain documentation from an employee of the need for intermittent leave for military exigency; and
  • Require employees provide periodic reports on their status and intent to return work.

See Curbing FMLA Fraud and Abuse.

Employer Obligations When Employee Is Out on Leave

An employer's obligation is not merely to provide an eligible employee FMLA leave. Rather, even when the employee is on leave, the employer has several obligations to its employee. These obligations range from:

  • Maintaining an employee's health benefits coverage;
  • Maintaining certain terms and conditions related to other employee benefits;
  • Following rules related to any compensation available to an employee on FMLA leave; and
  • Reinstating the employee upon return from an FMLA leave.

Maintenance of Employee Health Benefits

While an employee is out on FMLA leave, the employer must continue the employee's health benefits under the same terms as when the employee was working. In addition, the employer must also follow its established policies in determining how to apply other employee benefits to an employee taking FMLA leave.

An employer must maintain group health insurance coverage for an employee on FMLA leave if the employer provided such coverage before the employee went on leave, and it must be on the same terms as if the employee were continuously working.

Group Health Plans

A group health plan is any plan of, or contributed to by, an employer to provide health care (directly or otherwise) to:

  • The employer's employees;
  • Former employees; or
  • The families of employees or former employees.

A group health plan may include a self-insured plan. +29 C.F.R § 825.102 . It also includes:

  • A supplement to a group health plan;
  • A flexible spending account; or
  • Another component of a cafeteria plan.

+29 C.F.R. § 825.209 (b).

For FMLA purposes, the term group health plan does not include an insurance program providing health coverage under which employees purchase individual policies from insurers, as long as:

  • No contributions are made by the employer;
  • Participation in the program is completely voluntary for employees;
  • The sole functions of the employer with respect to the program are (without endorsing the program), to permit the insurer to publicize the program to employees, to collect premiums through payroll deductions and to remit them to the insurer;
  • The employer receives no consideration in the form of cash or otherwise in connection with the program, other than reasonable compensation, excluding any profit, for administrative services actually rendered in connection with payroll deduction; and
  • The premium charged with respect to such coverage does not increase in the event the employment relationship terminates.

+29 C.F.R. § 825.209 (a); +29 C.F.R. § 825.102 . Thus, if an employer has a plan that is entirely voluntary for employees and to which the employer makes no contribution, the employer will not need to continue coverage for an employee while he or she is on leave. In this scenario, the employee and the insurer should make arrangements for the employee to pay any premiums during the employee's leave. +29 C.F.R. § 825.210 (a).

Practical Example

Acme Pharmacy pays $100 per month towards employee's group health insurance premiums during the time period in which an employee performs work. Amy goes out on FMLA. During the time Amy is on leave, Acme must continue to pay that $100 contribution. If Amy pays the remaining $100 per month for group health premiums while she was working, Amy must continue to pay that portion during her FMLA leave.

Maintenance of Coverage

During any FMLA leave, an employer must maintain its employee's coverage under any group health plan on the same conditions as coverage would have been provided if the employee had been continuously employed during the entire leave period. Every employer covered by FMLA, including public agencies, is required to maintain employee medical coverage while the employee is on FMLA leave. +29 C.F.R. § 825.209 (a). Such maintenance of group health benefits includes maintaining whatever family member coverage was provided to the employee before the employee went on FMLA leave. +29 C.F.R. § 825.209 (b).

Likewise, during FMLA leave, benefit coverage for various procedures or types of care must be maintained during leave if these procedures or care are provided under the group health plan, a supplement to the plan, a flexible spending account, or a cafeteria plan. The procedures or types of care include:

  • Medical care;
  • Surgical care;
  • Hospital care;
  • Dental care;
  • Eye care;
  • Mental health counseling; and
  • Substance abuse treatment.

+29 C.F.R. § 825.209 (b).

An employee may choose not to retain group health plan coverage during FMLA leave. However, when an employee returns from leave, he or she is entitled to be reinstated on the same terms as prior to taking the leave, including restoring family or dependent coverage. +29 C.F.R. § 825.209 (e). The employer cannot require the employee to meet any qualification requirements imposed by the plan, including:

  • Any new preexisting condition waiting period;
  • Waiting for an open season; or
  • Passing a medical examination to obtain reinstatement of coverage.

+29 C.F.R. § 825.209 (e); +29 C.F.R. § 825.212 (c).

Payment of Health Care Premiums While on FMLA Leave

During an FMLA leave, an employee must continue to pay any share of group health plan premiums which the employee paid prior to leave. If premiums are raised or lowered, the employee must pay the new premium rates. +29 C.F.R. § 825.210 (a).

Payment Options

If the employee uses paid time off benefits during an FMLA leave, the employee's share of premiums must be paid by the method normally used during any paid leave. Presumably, an employee taking any other type of paid leave pays the employee's premium through a payroll deduction. If this is the case, the employee's premium payment(s) while utilizing paid time off benefits during FMLA leave will also be paid by payroll deductions. +29 C.F.R. § 825.210 (b).

If FMLA leave is unpaid, an employer has a number of options for obtaining payment for premiums from its employee. For example, an employer may require employees to pay their share of premium payments in any of the following ways:

  • Payment is due at the same time as it would be if payment was made by payroll deduction;
  • Payment is due on the same schedule as payments made under COBRA;
  • Payment is prepaid pursuant to a cafeteria plan at the employee's option;
  • The employer's existing rules for payment by employees on leave without pay are followed, provided that those rules do not require payment of the premiums that will become due during an unpaid FMLA leave prior to the leave's start and provided that payment of higher premiums than if the employee had continued to work instead of taking leave are not charged;
  • Another system voluntarily agreed to between the employer and the employee, which may include prepayment of premiums, such as through increased payroll deductions when the need for the FMLA leave is foreseeable; or
  • The employer can pay the premiums for the employee who can be required to reimburse the employer.

+29 C.F.R. § 825.210 (c)(1)-(5). An employer should work out a payment arrangement in advance of leave that will best accommodate the employer, both administratively and financially.

An employer may not require more of an employee using unpaid FMLA leave than the employer requires of an employee on other leaves without pay. +29 C.F.R. § 825.210 (e). No additional charge may be added to the employee's premium payment for administrative expenses. +29 C.F.R. § 825.210 (c).

Further, an employee who receives payments as a result of a workers' compensation injury must make arrangements with the employer for payment of group health plan benefits when simultaneously taking FMLA leave. +29 C.F.R. § 825.207 (e); +29 C.F.R. § 825.210 (f).

Notice Requirements Regarding Payment of Health Care Premiums

An employer must provide an employee with advance written notice of the terms and conditions under which premium payments must be made while on FMLA leave. This notice must be given at the time the employer gives its employee a Notice of Eligibility for FMLA leave, which must be given to the employee within five business days of the employee's request for leave. +29 C.F.R. § 825.210 (d); +29 C.F.R. § 825.300 (b)-(c). See Designating, Calculating and Tracking Leave Requests.

Failure to Pay Health Plan Premiums

An employee's failure to pay health plan premiums while he or she is on FMLA leave can eliminate the employer's obligation to maintain the employee's health insurance coverage. Unless the employer has a policy providing a longer grace period, an employer's responsibility to maintain an employee's health benefits ceases if the employee's premium payment is more than 30 days late. +29 C.F.R. § 825.212 (a).

If an employee has failed to make the required premium payment, the employer must give written notice to the employee that the payment has not been received. This notice must be mailed to the employee at least 15 days before coverage is to cease for non-payment. The notice must advise the employee that the coverage will be dropped on a specified date at least 15 days after the date of the letter, unless payment has been received by that date. +29 C.F.R. § 825.212 (a).

The employer may drop the employee's coverage retroactively:

  • If the employer has an established policy for other forms of unpaid leave that allows the employer to cease coverage retroactively to the date the unpaid premium payment was due;
  • If the employer acts in accordance with that policy; and
  • If the employer gave the required 15-day notice.

+29 C.F.R. § 825.212 (a). If the employer does not have a retroactivity policy, the employee's coverage may be terminated at the end of the 30-day grace period, as long as the 15-day notice was given. +29 C.F.R. § 825.212 (a).

If an employee's coverage lapses because the employee has not made the required premium payments during FMLA leave, the employer must still restore the employee's coverage/benefits when the employee returns to work. The coverage/benefits that are restored must be equivalent to those the employee would have had if the employee had not taken leave and the premium payment had not been missed. This obligation includes family and/or dependent coverage. +29 C.F.R. § 825.212 (c); +29 C.F.R. § 825.215 (d)(1). When the employee's coverage/benefits are reinstated, the employer cannot require the employee to meet any qualification requirements imposed by the plan. This includes prohibiting the employer from requiring the employee:

  • To meet any new preexisting condition waiting period;
  • To wait for an open season; or
  • To pass a medical examination to obtain reinstatement of coverage.

+29 C.F.R. § 825.212 (c).

If an employer terminates an employee's insurance while the employee is on leave and fails to restore the employee's health insurance upon the employee's return, the employer may be obligated to pay for:

  • The cost of benefits lost by the employee;
  • The out-of-pocket expenses incurred by the employee in obtaining other health care coverage;
  • The out-of-pocket expenses incurred by the employee in paying for medical procedures; and/or
  • Any other money the employee lost that directly stemmed from the employer's failure to restore the health insurance.

+29 C.F.R. § 825.212 (c).

Rather than drop the employee's coverage, the employer could also choose to pay the employee's share of the missed premium payments. If the employer does so, the employer may recover that amount from the employee. +29 C.F.R. § 825.212 (b).

Failure to Return from Leave - Effects on Health Care Coverage

An employee who fails to return from FMLA leave or intends not to return from leave is no longer eligible to have benefits continue under FMLA. When this happens, the employee experiences a qualifying event and becomes eligible for COBRA. +29 C.F.R. § 825.209 (f). See Employee Benefits > Health Care Continuation (COBRA). The day of the qualifying event depends on a few factors. If an employee simply does not return from leave, the employee becomes COBRA-eligible on the last day of the employee's leave period. If the employee notifies the employer during the leave period that the employee will not be returning to work, the employee becomes COBRA-eligible on the date of that notification. However, if an employer's health plan voluntarily extends coverage beyond either of those two dates, COBRA coverage does not begin until the group health coverage is actually lost.

An employer must meet its responsibilities for health coverage even if the employee does not return to work. For example, an employer must pay any claims incurred during an employee's FMLA leave. Most state wage and hour laws prohibit an employer from collecting this money by withholding an employee's final paycheck and/or vacation pay. See Payroll > Payment of Wages > State Requirements. Some states do permit an employer to withhold or deduct pay if the employee agrees, in advance, in writing. Without such voluntary agreement, an employer must file a complaint in court and sue the employee for its share of premium payments. See Recovering Premiums.

Costs of COBRA

An employee may be required to pay the entire premium for coverage, though the premium cannot exceed 102 percent of the plan's cost for similarly-situated people who have not incurred a qualifying event. Premiums reflect the total cost of group health coverage, including both the portion paid by an employee and any portion paid by the employer before the qualifying event, plus two percent for administrative costs.

Premiums due may be increased if the costs to the plan increase, but generally must be fixed in advance of each 12-month premium cycle. The plan must allow the employee to elect to pay premiums on a monthly basis if the employee asks to do so.

The employee's initial premium payment must be made within 45 days after the date of the employee's COBRA election. Payment generally must cover the coverage period from the date of COBRA election retroactive to the date of the qualifying event. Premiums for successive coverage periods are due on the date stated in the plan with a minimum 30-day payment grace period.

The due date may not be prior to the first day of the coverage period. For example, the due date for January cannot be prior to January 1 and coverage for January cannot be canceled if payment is made by January 31.

Premiums for the rest of the COBRA period must be made within 30 days after the due date of each premium or a longer period, if provided by the group health plan. COBRA beneficiaries remain subject to the plan rules and therefore must satisfy all costs related to deductibles, catastrophic and other benefit limits.See Employee Benefits > Health Care Continuation (COBRA).

Recovering Premiums

An employer's ability to recover health plan premiums paid during an employee's FMLA leave depends on whether the leave was paid or unpaid, and whether the employer is self-insured. +29 C.F.R. § 825.213 (a), (d), (e).

When an employee elects or an employer requires paid leave to be substituted for FMLA leave, the employer may not recover its share of health insurance or other non-health benefit premiums for any period of FMLA leave covered by paid leave. For example, because paid leave provided under a plan covering temporary disabilities (including workers' compensation) is not unpaid, an employer could not recover its share of the health insurance premiums paid while an employee was on this type of leave. +29 C.F.R. § 825.213 (d).

A self-insured employer may recover only the employer's share of allowable "premiums" as would be calculated under COBRA, excluding the 2 percent fee for administrative costs. +29 C.F.R. § 825.213 (e).

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. +29 C.F.R. § 825.213 (a).

The employer may not recover its share of health plan premiums paid during the employee's FMLA leave if the reason the employee does not return is due to:

  • The continuation, recurrence, or onset of either a serious health condition of the employee or the employee's family member, or a serious injury or illness of a covered servicemember, which would otherwise entitle the employee to leave under FMLA; or
  • Other circumstances beyond the employee's control.

    +29 C.F.R. § 825.213 (a)(1)-(2).

Circumstances that may be beyond an employee's control include:

  • Where a parent chooses to stay home with a newborn child who has a serious health condition;
  • An employee's spouse is unexpectedly transferred to a job location more than 75 miles from the employee's worksite;
  • A relative or individual other than a covered family member has a serious health condition and the employee is needed to provide care;
  • The employee is laid off while on leave; or
  • The employee is a key employee who decides not to return to work upon being notified of the employer's intention to deny restoration because of substantial and grievous economic injury to the employer's operations and is not reinstated by the employer.

+29 C.F.R. § 825.213 (a)(2). Circumstances beyond the employee's control would not include a situation where an employee desires to remain with a parent in a distant city even though the parent no longer requires the employee's care, or a parent chooses not to return to work to stay home with a well, newborn child. +29 C.F.R. § 825.213 (a)(2).

When an employee fails to return to work because of the continuation, recurrence or onset of the particular health condition at issue, an employer may require medical certification of the employee's or the family member's serious health condition or the covered servicemember's serious injury or illness. +29 C.F.R. § 825.213 (a)(3). The employee must pay for the cost of this certification and must provide the medical certification within 30 days from the employer's request. Moreover, the employee is not entitled to be paid for the time or travel costs spent in acquiring the certification.

If the employer requests medical certification and the employee does not provide it within 30 days, or the reason for not returning to work does not meet the test of other circumstances beyond the employee's control, the employer may recover 100 percent of the health benefit premiums it paid during the employee's period of unpaid FMLA leave. +29 C.F.R. § 825.213 (a)(3). The employer may use the same optional DOL medical certification forms developed for FMLA leave. See Requesting Certification of the Need for Leave.

An employee who returns to work for at least 30 calendar days is considered to have "returned" to work, and the employer will not be entitled to seek recovery of premium costs from the employee. Similarly, an employee who transfers directly from taking FMLA leave to retirement, or who retires during the first 30 days after the employee returns to work, is also deemed to have returned to work. Thus, the employer is also prohibited from seeking recovery of premium costs from the employee in these circumstances. +29 C.F.R. § 825.213 (c).

When an employee fails to return to work, any health and non-health benefit premiums an employer may recover are a debt owed by the non-returning employee to the employer. +29 C.F.R. § 825.213 (f). However, this debt does not change the employer's responsibilities for health benefit coverage and, under a self-insurance plan, payment of claims incurred during the FMLA leave period. An employer may recover the premium costs by deducting them from any sums due to the employee, provided such deductions do not otherwise violate applicable federal or state wage payment or other laws. Sums due an employee may include, but are not limited to:

  • Unpaid wages;
  • Vacation pay;
  • Profit sharing; or
  • Bonuses.

The employer may also initiate legal action against the employee to recover the costs. +29 C.F.R. § 825.213 (f).

Changes in Employer's Health Plans or Benefits

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. +29 C.F.R. § 825.209 (c).

Practical Example

Heather is on FMLA leave for her own serious health condition. While she is on leave, her employer, Acme Museum, changes its group health plan so that dental care is now covered under the plan. At the same time, Acme Museum increases the premiums of its group health plan by 20 percent. Heather is entitled to receive the dental care coverage even though she is on leave. In addition, Heather is also required to pay the increased premium.

An employer must give an employee on FMLA leave notice of any opportunity to change plans or benefits. For example, if the employer's group health plan permits an employee to change from single to family coverage upon the birth of a child or otherwise add new family members, this change in benefits must be made available while the employee is on FMLA leave. If the employee requests the changed coverage, the employer must provide it. +29 C.F.R. § 825.209 (d).

Termination of Health Care Coverage

An employer's obligation to continue benefits coverage for an employee on FMLA leave ceases when:

  • The employment relationship would have ended if the employee had not taken leave;
  • The employee informs the employer of the intent to not return from leave (even if the intention is communicated before leave is taken);
  • The employee fails to return from leave or continues on leave after exhausting FMLA coverage;
  • A key employee advises the employer that the employee does not wish to be reinstated; or
  • The employer denies a key employee reinstatement (and after appropriately providing the key employee notice of the employee's key employee status).

+29 C.F.R. § 825.209 (f); +29 C.F.R. § 825.209 (g).

COBRA establishes required periods of coverage for continuation of health benefits, though a plan is permitted to provide longer periods of coverage beyond those required by COBRA. COBRA beneficiaries generally are eligible to pay for group coverage during a maximum of 18 months for qualifying events due to employment termination or a reduction of work hours. Certain qualifying events, or a second qualifying event during the initial period of coverage, may permit a beneficiary to receive a maximum of 36 months of coverage. See Employee Benefits > Health Care Continuation (COBRA).

Coverage begins on the date that coverage would otherwise have been lost by reason of a qualifying event and can end when:

  • The last day of maximum coverage is reached; or
  • Premiums are not paid on a timely basis; or
  • The employer ceases to maintain any group health plan; or
  • Coverage is obtained with another employer group health plan that does not contain any exclusion or limitation with respect to any pre-existing condition of such beneficiary; or
  • A beneficiary is entitled to Medicare benefits; or
  • Special rules for individuals with disabilities extends the maximum periods of coverage.

Maintenance of Multi-Employer Health Plan Benefits

A multi-employer health plan is one to which multiple employers contribute under the terms of one or more collective bargaining agreements. +29 C.F.R. § 825.211 (a). An employer must continue to contribute to a multi-employer plan on behalf of the employee who is on FMLA leave just as if the employee had continued to work. This rule applies unless the multi-employer plan contains an explicit FMLA provision maintaining coverage through pooled contributions by all the plan's employer members. +29 C.F.R. § 825.211 (b). An employee on FMLA leave cannot be required to use banked hours or to pay a greater premium than the employee would have paid if the employee had not taken leave. +29 C.F.R. § 825.211 (d).

Just as benefits under other plans must be maintained while an employee is on FMLA leave, benefits under a multi-employer plan must also be maintained at the same level. +29 C.F.R. § 825.211 (c). Such coverage must be maintained while the employee is on FMLA leave until:

  • The employee's FMLA leave entitlement is exhausted;
  • The employer can show that the employee would have been laid off and the employment relationship would have ended; or
  • The employee provides clear notice that the employee does not intend to return to work.

+29 C.F.R. § 825.211 (e); +29 C.F.R. § 825.209 (f).

Non-Health Benefits During FMLA 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. +29 U.S.C. § 2614 (a)(2). However, 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. +29 U.S.C. § 2614 (a)(3)(A)-(B); +29 C.F.R. § 825.209 (h).

Non-health benefits include the following:

  • Pension/retirement benefits;
  • Seniority benefits;
  • Accrual of vacation/sick days;
  • Holiday pay;
  • Life insurance/disability insurance;
  • Stock options/vesting rights; and
  • Bonuses.

Equivalent Leave Status

An employer may not discriminate against an employee on FMLA leave in granting non-health benefits. The employer must treat employees on FMLA leave the same as it would treat employees on an equivalent leave status for reasons that do not qualify as FMLA leave. For example, an employee on FMLA who was concurrently using PTO would be entitled to the same non-health benefits as an employee who was using PTO for a reason that did not qualify for FMLA. Similarly, an employee on unpaid FMLA would be entitled to the same non-health benefits as an employee who was on unpaid leave for a reason that did not qualify for FMLA. +29 U.S.C. § 2614 (a)(3)(A),(B); +29 C.F.R. § 825.209 (h). See Actions Prohibited by the FMLA.

Practical Example

Rebecca is out on FMLA leave for three weeks. She substitutes vacation time so that the entire FMLA leave is paid. Randy has taken a three week paid vacation. If Randy's vacation time does not disqualify him from receiving an attendance bonus, Rebecca's FMLA leave cannot disqualify her from receiving the bonus.

Practical Example

Cindy is out on an unpaid FMLA leave for 12 weeks. Carlos takes a 12 week unpaid sabbatical. Cindy and Carlos must be treated the same for purposes of an attendance bonus.

Practical Example

Troy's employer, Acme Law Firm, allows employees on an unpaid sabbatical leave to receive holiday pay and to accrue vacation and sick days. In contrast, Acme Law Firm does not provide holiday pay or vacation and sick day accrual to employees on unpaid FMLA leave. Acme Law Firm's policy on non-health benefits accrual is impermissible because Acme Law Firm provides better benefits to employees on unpaid leave for a non-FMLA reason than it does to those on unpaid leave for an FMLA-qualifying reason.

An employer is encouraged to develop a position or policy on the continuation of non-health benefits, and to apply it uniformly to all employees on equivalent leave status. Like all policies, it should be clearly written and communicated to all employees.

Payment of Costs to Maintain Non-Health Benefits While on FMLA Leave

How an employee on FMLA leave pays his or her share of premiums to maintain non-health benefits may depend largely on whether the employee is receiving some form of pay from the employer while on leave. If an employee is on an FMLA leave where paid time off benefits or other pay is provided by the employer, premium payments for non-health benefits (such as disability insurance or life insurance), are usually paid in the same fashion as they were before the employee went on leave. This is most often through a deduction from the employee's paycheck. This will also usually be the same method used for payment by the employee of his or her portion of health care premiums.

If the employee is on an FMLA leave where no paid time off benefits or other pay is provided by the employer, continuation of non-health benefits provided by the employer will depend on employer policy. If an employee wishes to continue non-health benefits where premium payments are required, the employee and employer should discuss payment options before the start of leave. It will often be the case that the employee will be making payments of his or her portion of health care premiums while on unpaid FMLA leave. Using the same method for the employee to pay his or her share of premiums for non-health benefits, if possible, will make it easier for the employer to administer the leave and reduce the likelihood of confusion by the employee.

In some instances, an employer may elect to pay the employee's share of premiums for non-health benefits while the employee is on unpaid leave. Often this decision is made by the employer to prevent lapses in coverage that would violate the requirement that the employer provide equivalent benefits to employees on FMLA leave as it does to employees on other similar leaves. +29 C.F.R. § 825.213 (b).

If the employer decides to maintain these benefits while the employee is on leave, the employer may recoup only the cost of the employee's share of non-health premiums, regardless of whether the employee returns from leave. +29 C.F.R. § 825.213 (b); +29 C.F.R. § 825.215 (d)(1). If the employee fails to return from leave the employer may recover the employee's share of premiums by:

  • Deducting from any final sums due to the employee in wages, vacation payout, etc., in accordance with applicable state and local laws;
  • Reaching an agreement with the employee on repayment; or
  • Initiating legal action.

Changes in Non-Health Benefits During FMLA Leave

An employer is not obligated to implement changes to non-health related benefits that are made while the employee is still on FMLA leave unless those changes are implemented for other employees on equivalent leave status for reasons that do not qualify for FMLA leave. +29 U.S.C. § 2614 (a)(3)(A)-(B); +29 C.F.R. § 825.209 (h).

Upon an employee's return from FMLA leave, all changes to benefits will apply as if no leave was taken, except for:

  • Changes in benefit levels that took place during the leave period affecting the entire workforce, unless otherwise elected by the employee; and
  • Changes in benefit levels prompted by the employee's accrual of seniority or benefits during the leave period.

+29 C.F.R. § 825.215 (d)(1); +29 C.F.R. § 825.215 (d)(4); +29 U.S.C. § 2614 (a)(3)(A)-(B); +29 C.F.R. § 825.209 (h).

Pension/Retirement Benefits

An employee's taking of FMLA leave, whether paid or unpaid, cannot be treated as a break in service for vesting or eligibility to participate in a pension or retirement plan. In addition, where a retirement benefit plan requires an employee to be employed on a particular date in order to be credited with a year of service for vesting, contributions, or participation in the plan, an employee on FMLA leave is considered to have been employed on such a date. +29 C.F.R. § 825.215 (d)(4). Upon return from leave an employer is not required to treat unpaid FMLA leave periods as service for purposes of benefit accrual, vesting or participation eligibility.

Practical Example

Acme Warehouse's benefit plan requires that employees must be employed on March 15 in order to be credited with a year of service, requires that employees work for at least 1,050 hours in a year in order to be credited with a year of service, and disqualifies employees who have breaks in service of over two consecutive months. Acme is required to consider an employee on FMLA leave on March 15 as having met the requirement that the employee be employed on March 15, and may not count an employee's breaks in service (of any length) that are due to FMLA leave as a break in service for purposes of pension eligibility. However, Acme is not required to count the time an employee would have worked had he or she not been on FMLA leave toward the 1,050 hours-of-service requirement.

Seniority Benefits/Promotion

The FMLA does not require that employees on unpaid FMLA leave accrue additional seniority while on leave, but an employer is free to maintain policies providing for such accrual if it wishes. +29 C.F.R. § 825.215 (d)(2). The employer must treat employees on FMLA leave the same as other employees on an equivalent leave status for reasons that do not qualify for FMLA leave.

An employer should be careful not to assume or suggest that employees returning from FMLA leave (for example, new mothers returning from FMLA leave or employees with a family member who has a chronic serious health condition) will not be interested in a promotion to a position that requires significant travel or working long or unusual hours. See Employee Management > Promotions.

Holiday Pay

An employer is not required to provide holiday pay to employees on FMLA leave. However, an employer must provide holiday pay to employees on FMLA leave consistent with the employer's policy for providing such pay to employees on an equivalent leave status for reasons that do not qualify for FMLA leave +29 U.S.C. § 2614 (a)(3)(A)-(B); +29 C.F.R. § 825.209 (h).

Practical Example

Hayley, who is not on FMLA leave, takes vacation during the week including the July 4th holiday. Hayley's vacation bank is charged with only four days of vacation and she is paid for one holiday. Billy, who is on FMLA leave during the same week, is using earned vacation time concurrently with his FMLA leave. Billy must also be charged with only four vacation days and be paid the one holiday.

Vacation/Sick Day Accruals

The FMLA does not mandate the accrual of vacation or sick leave while on unpaid FMLA leave. An employer may voluntarily have a policy that allows employees to accrue additional vacation or sick leave entitlement while on FMLA leave, but is not required to do so unless employees on an equivalent leave status for reasons that do not qualify for FMLA leave accrue vacation or sick leave entitlement. +29 U.S.C. § 2614 (a)(3)(A)-(B); +29 C.F.R. § 825.209 (h).

Continuation of Life Insurance, Disability Insurance, AD&D and Similar Insurance

An employer is not required to maintain insurance benefits such as life/disability, accidental death and dismemberment or disability insurance while an employee is on FMLA leave unless company policies require the maintenance of such benefits for an employee on an equivalent leave status for reasons that do not qualify for FMLA leave. +29 U.S.C. § 2614 (a)(3)(A)-(B); +29 C.F.R. § 825.215 (d).

An employer is required to return an employee to the same level of benefits at the end of the FMLA leave as he or she had when the leave began. Furthermore, the employee cannot be required to undergo a new physical to qualify for life insurance. +29 C.F.R. § 825.215 (d).

Practical Example

Lisa is covered by a life insurance policy before going on FMLA leave. During FMLA leave, she lets coverage lapse during the period of unpaid leave. When Lisa returns to work from leave, she cannot be required to take a physical to re-qualify for the insurance.

In order to prevent a loss of coverage under certain insurance plans, an employer may need to be sure that employees remain covered while on FMLA leave. +29 C.F.R. § 825.215 (d)(1). An employer is encouraged to pay the premiums for the employee while the employee is out on unpaid FMLA if necessary to prevent lapses that would violate the employee's right to the same benefits on return from leave as he or she enjoyed before the leave began. +29 C.F.R. § 825.213 (b); +29 C.F.R. § 825.215 (d)(1). If the employee fails to return from FMLA leave, those fees can be recovered by either:

  • Deducting from final pay, to the extent permitted by state or local law;
  • Reaching an agreement with the employee on repayment; or
  • Initiating legal action.

Effect on Exercising and Vesting Stock Options

Employer policies on vesting or exercising stock options control whether an employee may continue to do so while on FMLA leave. However, employees must be treated the same with regard to such rights as any other employees on equivalent leave status for reasons that do not qualify for FMLA leave. +29 C.F.R. § 825.209 (h). Thus, some employers modify vesting and other benefit policies to allow employees to be restored upon leave. +29 U.S.C. § 2614 (a)(3)(A)-(B); +29 C.F.R. § 825.215 (d)(1).

Bonus Programs

Under the FMLA, equivalent pay includes unconditional increases, like cost of living increases, paid to employees not on leave. An employee on FMLA leave must receive such unconditional pay increases either upon return from leave or earlier if employees on equivalent leave status for reasons that do not qualify for FMLA leave would receive such increases earlier.

Bonuses or other pay conditioned on factors like the employee's seniority, length of service or hours worked, must be paid to employees returning from FMLA leave if they would be paid to employees on an equivalent leave status for reasons that do not qualify for FMLA leave. +29 C.F.R. § 825.215 (c)(1).

The DOL regulations specifically state that bonuses earned by achieving a particular goal may be denied to employees who have not achieved that goal - even though they fell short of the goal because they were on FMLA leave - so long as employees on "equivalent leave status that does not qualify as FMLA leave" are treated in the same way. +29 CFR § 825.215 (c)(2). Factors that qualify as particular achievements may include hours worked, products sold, safety or perfect attendance.

Bonus plan documents should clearly state the specific productivity standard or accomplishment needed to earn the bonus. An employer should review its bonus plan documents with experienced employment counsel.

Compensation While on FMLA Leave

FMLA leave is unpaid. In order to ease wage loss, the FMLA offers two choices for using paid time off benefits during FMLA leave:

  1. Require employees to use paid time off benefits; or
  2. Permit employees to choose whether they will use paid time off benefits.

+29 C.F.R. § 825.207 (a). The 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 a leave is determined by the terms and conditions of the employer's policies, as well as state or local law. See State Requirements; Employee Leaves > Other Leaves > State Requirements. Whether the employee chooses or the employer requires use of accrued paid time off benefits during FMLA leave, the employee must meet any procedural requirements of the paid time off benefits policy to receive payment. However, the employer may not treat employees on FMLA leave differently from any other employee in the administration or application of its paid time off benefits policies.

The reason for FMLA leave controls the type of available accrued paid time off benefit that may be used. For most situations covered by the FMLA, the employee may choose, or the employer may require, the substitution of accrued vacation or paid time off benefits during FMLA leave (e.g., bonding time or the employee's serious health condition). However, if the employee is on FMLA leave to care for his or her spouse, child or parent with a serious health condition, the use of accrued sick leave may only be substituted for any part of the FMLA leave if both the employer and the employee agree to the substitution, unless the employer allows employees to take sick leave for ill spouses, children and parents. An employer is not required to provide paid sick leave under circumstances that it normally would not. In addition, an employer cannot avoid FMLA's reinstatement obligations by providing employees paid sick leave benefits instead of unpaid FMLA leave.

Required Substitution of Paid Time Off Benefits

If an employer requires employees to substitute paid time off benefits (such as vacation time, sick time or personal days) for FMLA leave, it is recommended that the two types of leave run at the same time (concurrently), lessening the total amount of paid and unpaid leave employees take in a year. This means that, by using paid time off benefits, employees receive pay during an otherwise unpaid FMLA leave. An employer may allow employees to take such leaves consecutively, but that is not recommended because it would allow an employee to use all of his or her paid time off benefits first and then use his or her FMLA leave allotment, which could cause a large disruption to an employer's business operations.

If an employer chooses to require its employees to substitute paid time off benefits for FMLA leave, the employer would need to provide notice of that requirement in the Rights and Responsibilities Notice. See Rights and Responsibilities Notice. If an employer chooses to provide an option to allow the leaves to run consecutively, this too should be included in the Rights and Responsibilities Notice. If an employer fails to provide this notice, the employee is permitted to choose whether to have the two types of leaves run at the same time or consecutively. For example, this could result in:

  • An employee using all of his or her paid time off benefits first, then using 12 weeks of unpaid FMLA leave (or 26 weeks of military leave);
  • The employee banking his or her paid time off benefits for other purposes; or
  • The employee deciding to have his or her paid time off benefits run concurrently with FMLA leave time.

If an employee does not use all his or her paid time off benefits during FMLA leave, the employee remains entitled to all accrued paid time off benefits after the expiration of FMLA leave. +29 C.F.R. § 825.207 (b).

If an employer requires a substitution of paid time off benefits for FMLA leave, it is advisable to have a written policy setting forth such requirement. The policy will protect the employer from claims that an employee was not informed of this requirement and/or that the requirement was not applied consistently to all employees. See Enforcing Paid Time Off Policy.

Option to Use Paid Time Off Benefits

If an employer wants to provide employees with the option to substitute paid time off benefits for FMLA leave, it should explain the employees' options with respect to the use of paid time off benefits in combination with FMLA leave. If the employee does not decide to use his or her paid time off benefits for FMLA leave, the employee is entitled to all paid time benefits accrued before taking FMLA leave.

Practical Example

Kevin takes FMLA leave for the placement of an adopted child in his home. Kevin's employer, Acme Grocery, has a policy requiring employees to use paid time off benefits during FMLA leaves. Acme Grocery offers vacation and sick leave. Sick leave may only be used for employee illnesses and doctor appointments. Under Acme Grocery's policies, Kevin must use all accrued vacation benefits during his FMLA leave to bond with his newly adopted child.

Practical Example

Nikki takes FMLA leave for her own serious health condition. Acme Hedge Fund, Nikki's employer, has a policy requiring its employees to use paid time off benefits during FMLA leaves. Acme Hedge Fund offers vacation and sick leave. Sick leave may be used only for the employee's own illness or a family member's illness. Under these policies, Nikki must use her accrued vacation or sick leave benefits while on leave.

Practical Example

Sheila takes FMLA leave to care for her spouse who has a serious health condition. Sheila works for Acme Hospital, which requires employees to use paid time off benefits during FMLA leave. Acme Hospital offers paid vacation and sick leave and operates in a state where an employee may choose to use up one-half of their accrued sick leave pay for an ill family member. Under Acme Hospital's policies and state law, Sheila must use all accrued vacation. Sheila is not required to use accrued sick leave. Instead, per state law, she must be given the option to use at least one-half of her accrued sick leave.

Notice to Employees. When the employer receives enough information to decide whether the employee is eligible for FMLA leave, the employer must tell the employee that the employee is entitled to FMLA leave. At that time, the employer must also tell the employee the rights and responsibilities the employee has due to FMLA leave and the consequences if the employee does not meet his or her obligations. See Eligibility Notice to Employee; Rights and Responsibilities Notice.

In the Rights and Responsibilities Notice, the employer must tell the employee:

  • Of the employee's right to use paid time off benefits;
  • Whether the employer will require use of paid time off benefits;
  • About any conditions related to using paid time off benefits; and
  • That even if the employee does not meet the conditions for using paid time off benefits, the employee will not lose the opportunity to take unpaid FMLA leave if the employee meets all other leave requirements.

Enforcing Paid Time Off Policy

An employee's ability to use his or her accrued paid time off benefits while on FMLA leave is determined by the terms and conditions of his or her employer's normal policies. While a written policy is not required, having a paid time off policy will help make certain that employees are aware about how leave is calculated and that the same process is applied consistently to all employees. The policy should:

  • Not treat the employee using FMLA leave differently in its administration of paid time off benefits than it treats other employees not using FMLA leave;
  • State that the employer may only charge the employee's FMLA entitlement with the actual amount of FMLA the employee uses and not more; and
  • Require employees to take paid time off benefits concurrently with FMLA leave. However, if the employer chooses, it can simply explain the employee's options regarding the use of paid leave benefits in combination with FMLA leave.

+29 C.F.R. § 825.205 (a).

The question arises where the paid time off benefits policies dictate that time off may only be taken in increments greater than the employee needs for FMLA leave. For example, an employer's paid time off benefits policy requires that employees take time off in increments of four hours or more, but the employee only needs two hours of FMLA leave. Following FMLA guidelines, the employer has two options.

  • Option #1: the employer tells the employee that the employee's FMLA entitlement will be charged two hours and the employee must take off, and will be paid for, four hours per the paid time off benefits policy (i.e., two hours FMLA/paid time off benefits and two hours paid time off benefits only); or
  • Option #2: the employee takes two hours off as FMLA leave and is not paid.

In both options, the employee's FMLA leave entitlement is charged only with the time needed and used for FMLA purposes and the conditions of the employer's paid time off benefits policy were followed.

Employer Tax Credits for Paid Leave

Enacted in December 2017, the federal tax reform law provides a tax credit to employers as an incentive to offer paid family and medical leave benefits to qualifying employees. The credit is available to employers that:

  • Have a written policy that offers at least two weeks of paid family and medical leave to full-time employees, and a prorated amount to part-time employees; and
  • Pay eligible employees at least 50 percent of their hourly rate during the leave.

Family and medical leave means leave taken for one of the permissible reasons for leave under the FMLA.

Qualifying employees are those who have been employed by the employer for at least one year. A qualifying employee must not have earned more than $72,000 in 2017 in order for the employer to claim a credit for wages paid to the employee in 2018.

Eligible employers may take a tax credit of 12.5 percent of the wages they pay to qualifying employees using paid family and medical leave. An employer that provides greater than 50 percent of an employee's hourly rate while the employee is on leave is eligible for an additional credit of up to 25 percent. The credit is available for every week of paid leave the employer provides, up to 12 weeks per year. An employer may elect to have this section not apply for any taxable year, however.

The credit may be used for wages paid in taxable years beginning after December 31, 2017, but is not available for wages paid after December 31, 2019.

Additionally, leave paid for or required by a state or local government is not taken into account when determining the amount of leave provided by the employer.

The IRS provides FAQs on this tax credit.

Other Paid Benefits

An employee who takes FMLA leave for the employee's own serious health condition may also qualify for non-accrued paid disability benefits (i.e., benefits or insurance plans that pay employees while they are unable to work due to an illness or injury such as short-term disability). If the employee meets all conditions required to take FMLA leave, the employer may designate the leave as FMLA leave and the employee may receive payment through the paid disability benefit plan. If this is the case, neither the employee nor the employer may require the substitution of paid time off benefits. However, if the paid disability benefits expire before an employee on FMLA returns to work, an employer can require the employee to use his or her paid time off benefits (i.e., vacation time or sick time) during the remaining FMLA leave. This is commonly called piggybacking.

In the event the paid disability benefit plan provides for less than full wage replacement, the employee and employer may agree, where state law or the plan permits, that paid time off benefits will supplement the paid disability benefit plan payments during FMLA leave. The employee will not earn more than the employee's own salary or wages during FMLA leave. +29 C.F.R. § 825.207 (d). See State Requirements.

Practical Example

Christine works for Acme Music. When she applies for eight weeks of FMLA leave for her own serious health condition, she learns that Acme Music has a paid disability benefit plan that provides her up to two-thirds of her regular wages if she is unable to work due to a serious health condition. This plan permits an employee to also supplement the paid disability benefits received with any accrued paid time off benefits available to the employee. Christine decides to use the 10 days of paid time off benefits she has accrued in conjunction with the paid disability benefits to provide her pay while on leave. If Christine earns $1,000 per week, eight weeks of leave amounts to $8,000 of wages she would lose while on leave. Acme Music's paid disability benefit plan covers two-thirds or 66 percent of her wages each week. This means that the paid disability benefit plan will pay Christine $5,280, leaving Christine $2,720 short of receiving full wages for her eight week leave. Christine's 10 paid time off benefit days equal two weeks of full pay ($2,000). Because Christine has decided to also use $2,000 of paid time off benefits available to her, she will only lose $720 of her regular wages while on leave.

Practical Example

Robert works for Acme Travel Agency and requests two weeks of FMLA leave for his own serious health condition. Acme Travel Agency provides a paid disability benefit plan that covers up to two-thirds of his regular wages if he is unable to work due to a serious health condition. The plan permits an employee to also supplement the paid disability benefits received with any accrued paid time off benefits available to the employee. Robert has 20 days of paid time off benefits he has accrued. He decides to use these in conjunction with the paid disability benefits while on leave. If Robert earns $750 per week, two weeks of leave amounts to $1,500 in wages he would lose while on leave. Acme Travel Agency's paid disability benefit plan covers two-thirds or 66 percent of his wages each week. This means that the paid disability benefit plan will pay Robert $495/week or $990 for his two week leave. This leaves Robert short $255 each week or $510 for the two week period. Robert's 20 paid time off benefit days would cover four weeks of work and equals $3,000. Because Robert has decided to also use his paid time off benefits available, he will receive full pay while on leave and will still have $2,490 (equal to 16.6 days of paid time off benefits) available to him when he returns from this leave.

Workers' Compensation Benefits

Time off from work due to a work-related injury is paid at least in part by workers' compensation benefits, i.e., paid disability benefits. See Risk Management - Health, Safety, Security > Workers' Compensation. If the employee also qualifies for FMLA leave, the employee's leave will be considered both a workers' compensation leave and an FMLA leave. In this situation, the employer can require the employee to take FMLA leave concurrently with workers' compensation, but neither the employee nor the employer may require the substitution of paid time off benefits. However, in the event workers' compensation benefits are less than full wage replacement, e.g., two-thirds of an employee's wages, the employee and employer may agree, where state law permits, that paid time off benefits will supplement the workers' compensation payments during FMLA leave. See State Requirements. The employee will not earn more than the employee's regular salary or wages during FMLA leave. +29 C.F.R. § 825.207 (e).

If the employee's health care provider for the workers' compensation injury certifies the employee is able to return to a light-duty position, but not to the employee's same or equivalent job, the employee is free to decline the employer's offer of light duty. The employee may lose workers' compensation payments as a result of declining the light-duty position, but the employee is entitled to remain on unpaid FMLA leave until the employee's FMLA entitlement runs out. On the date the workers' compensation benefits ends, the substitution rules come into play and the employee may elect or the employer may require the use of paid time off benefits, as controlled by the employer's policies. +29 C.F.R. § 825.207 (e).

Practical Example

Floyd works for Acme Fish Market. While working, he slips and falls, dislocating his shoulder and breaking his leg. Because the injury arose out of his employment, Floyd will be covered by workers' compensation. Floyd also meets FMLA eligibility requirements. Thus, he is placed on workers' compensation and FMLA leave. After being out of work for six weeks, his doctor certifies that he may return to work on light duty. Floyd rejects the light duty position offered to him. Under state law, Floyd no longer qualifies to receive workers' compensation benefits. However, because he still has time off available under FMLA, he may continue his leave and Acme Fish Market may require Floyd to use any accrued paid time off benefits available to him, in accordance with Acme Fish Market's policy.

Interplay of Other Disability Leaves and State Laws

Other federal or state laws that provide time off to employees may run concurrently with the FMLA. These other laws may impose additional requirements on the employer. For example, these other laws may require that:

  • The time off be paid in full by the employer;
  • The time off be partially paid by the employer; and/or
  • The time off be covered or partially paid by wage supplement benefits or insurance plans.

Nothing in the FMLA supersedes any state or local law that provides greater rights than those provided by the FMLA. +29 U.S.C. § 2651 (b). An employer must keep in mind that employees are not required to designate whether the leave they are taking is FMLA leave or leave under another federal or state law. +29 C.F.R. § 825.302 (c). It is the employer's responsibility to comply with the appropriate provisions of both. +29 C.F.R. § 825.702 (a). An employer covered by one law and not the other has to comply only with the law under which it is covered. Similarly, an employee eligible under only one law must receive benefits in accordance with that law. See The Bermuda Triangle Has Expanded: The FMLA's Intersection With the ADA, Workers' Compensation and More - Legal Insight; See State Requirements.

The Americans with Disabilities Act (ADA)

The ADA requires employers to accommodate qualified individuals with a disability unless the accommodation would cause undue hardship. See The Bermuda Triangle Has Expanded: The FMLA's Intersection with the ADA, Workers' Compensation and More; Employee Management > Disabilities (ADA) > Duty to Accommodate and the Interactive Process. Under the ADA, the employee may be entitled to an additional leave of absence as a reasonable accommodation after the employee's FMLA leave entitlement ends because the employee is unable to perform the essential functions of the employee's position because of a disability. +29 C.F.R. § 825.702 (b). However, nothing under the FMLA requires that an employee be provided pay for leave that is provided as a reasonable accommodation.

Treatment of Holidays and Company Closures

An employee's entitlement to holiday pay during FMLA leave depends on the employer's established policy for providing these benefits when an employee is on other types of leave. +29 C.F.R. § 825.209 (h). Similarly, whether an employee on FMLA leave will be paid during a company closure depends on the employer's policies.

Practical Example

Thanksgiving Day is observed nationally on a Thursday in November. Acme Phone Co. will only pay its employees for holiday pay on Thanksgiving if they either work the day before or the day after Thanksgiving or they use paid vacation days the day before and after Thanksgiving. Jennifer is on FMLA leave during the entire week of Thanksgiving and is using her vacation pay to cover this time off from work. Based on Acme Phone Co.'s policy, Jennifer will be paid for the Thanksgiving holiday even though she is not working that week.

Public Employers: Compensatory Time

Compensatory time off (or comp time) is paid time off accrued by public sector employees instead of receiving immediate cash payment for working overtime. The Fair Labor Standards Act (FLSA) allows an employer to cash out the employee's compensatory time or to require the employee to use it. The employee may request or the employer may require use of compensatory time off during FMLA leave. See Employee Compensation > Employee Classification.

Pay Docking

An employee who is exempt under the Fair Labor Standards Act (FLSA), and therefore not entitled to overtime, must be paid for the whole week for any workweek in which he or she is out on FMLA leave, but also performed any actual work. The employee need not be paid for any workweek during which he or she performs no work, e.g., when an employee is on leave for an entire workweek.

The FLSA does not require an employer to pay nonexempt employees (typically, hourly workers who are entitled to overtime pay for working more than 40 hours in a workweek) for time spent away from work.

Deductions for Partial Days of Absence

An employer is not required to pay an exempt employee full salary for weeks in which the employee takes partial days of unpaid leave under the FMLA. The employer may pay the employee a proportionate part of the employee's salary for the time that the employee actually worked. +29 C.F.R. § 825.206 (a).

Practical Example

Andrea is an exempt employee who normally works 40 hours every week. Andrea takes four hours of FMLA leave during the workweek. The employer may deduct 10 percent of Andrea's normal salary for that week without impacting her exempt status.

Public Employees

A public employer may reduce exempt employees' salaries for partial days of absences for personal reasons or illness regardless of whether the absence would qualify as FMLA leave.

Terminating or Taking Otherwise Negative Action Against Employees on Leave

An employer should exercise caution when terminating an employee who is on FMLA leave. The FMLA protects an employee who exercises his or her FMLA rights from discrimination or retaliation based on the employee taking a leave of absence. See Actions Prohibited by the FMLA. Other disciplinary or negative action affecting an employee, such as demotion, layoff or denial of a bonus, can also be a risky initiative. Simply put, 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. +29 U.S.C. § 2615 ; +29 C.F.R. § 825.220 ; see also How to Terminate an Employee Out on FMLA Leave.

Considerations Prior to Taking Adverse Actions

Before taking any adverse employment action against an employee on FMLA leave (or an employee who requested FMLA leave), an employer should ask:

  • Is the employment decision (e.g., discipline, demotion, termination) based in any way on the employee's attendance record and, if so, is the attendance policy in writing and nondiscriminatory;
  • Has the employee exhausted his or her leave entitlements (e.g., FMLA leave, state leave, any company provided leave, workers' compensation);
  • Is the employee protected by the ADA and, if so, has the employer considered providing leave as a reasonable accommodation;
  • Have employees in similar situations been treated the same;
  • Would the employer apply the same decision to this employee had the employee not taken or requested leave;
  • Does the application of an employer policy negatively impact the employee's FMLA rights; or
  • How will the timing of the decision be perceived and what will be the impact of that perception (e.g., if the termination is close in time to when the employee exercised his or her FMLA rights, the likelihood of a potential lawsuit is greater).

Practical Example

Samir works for Acme Shoe Co. as a production worker. Acme Shoe maintains a strict attendance policy that permits an employee to have only three absences in a six-month period. An employee that exceeds this will be suspended without pay for the first offense and terminated from employment for the second offense. Samir's daughter has juvenile diabetes and is participating in a health care provider recommended program to help decrease the ill effects she sometimes suffers from her serious health condition. This program requires Samir to attend the program with his daughter and to assist in her care. Samir must attend this program with his daughter one time per month during the workday.

Under Acme Shoe's attendance policy, Samir's attendance pattern would be considered excessive and would put him over three absences in a six-month period. Prior to taking any negative action against Samir, Acme Shoe Co. should evaluate what impact such a policy would have on Samir's exercise of his FMLA rights. Because the policy does not differentiate between "excused" and "unexcused" absences, the policy violates Samir's FMLA rights. Acme Shoe should: (1) refrain from disciplining Samir for absences that should be considered "excused" because they are protected under the FMLA; and (2) modify its attendance policy to one that does not penalize excused (protected, permissible) absences.

Employer Burden to Show Negative Action Is Not Based on Exercise of FMLA Rights

Most courts evaluate FMLA discrimination and retaliation claims under the burden-shifting analysis applied in cases brought under Title VII of the Civil Rights Act of 1964. In this analysis, the employer ultimately bears the proving that its actions were not discriminatory or retaliatory. In the case of terminations from employment or layoffs, the employer must demonstrate that the employee would have been terminated or laid off, even if the employee had not taken an FMLA-qualified leave. In other words, the employer must demonstrate that it had a legitimate, nondiscriminatory business reason for terminating the employee. Further, the reasons must be unrelated to the employee taking protected leave. See Actions Prohibited by the FMLA; Employee Management > EEO - Discrimination.

The easiest way for an employer to meet its burden is to have thorough documentation supporting its legitimate, nondiscriminatory reason for terminating or taking other negative or adverse action against the employee. An employer should consult with an experienced employment lawyer before terminating or taking an adverse action against an employee on or returning from FMLA leave.

Employers should also be wary of potential liability under the cat's paw theory, under which an employer can be held liable for employment discrimination based on the discriminatory animus of a lower-level manager or supervisor who influenced, but did not make, the final employment decision. The theory has been recognized by courts in a variety of contexts, and extended by the 1st, 6th, 8th and 11th Circuit Courts of Appeals (covering 17 states as well as Puerto Rico) to FMLA retaliation claims. See Ameen v. Amphenol Printed Circuits, Inc., +777 F.3d 63 (1st Cir. 2015); Marshall v. The Rawlings Company LLC, +854 F.3d 368 (6th Cir. 2017); Marez v. Saint-Gobain Containers, Inc., +688 F.3d 958 (8th Cir. 2012); and Hyde v. K.B. Home, Inc., +355 F. Appx. 266 (11th Cir. 2009).

These rulings acknowledge that an employer has a responsibility to adequately train supervisors and managers with respect to FMLA retaliation and assure that training and detection of discrimination occurs at every level. Thus, an employer that considers taking an adverse employment action against an employee who has exercised his or her FMLA rights should ensure that its reasoning is well documented, that there are legitimate and nondiscriminatory reasons for taking such actions and that there is no discriminatory animus on behalf of any supervisors or managers. Conducting an in-depth and independent investigation can go a long way toward defending against a cat's paw claim.

Practical Example

Frank is an accounts payable clerk at Acme Corp. and is responsible for paying Acme Corp.'s bills. He goes on FMLA leave. During his leave, his supervisor at Acme Corp. goes through papers on Frank's desk and discovers unpaid bills going back six months. Acme Corp. may lawfully terminate Frank's employment for failing to perform his job adequately, even though he is on FMLA leave. Of course in doing so, Acme Corp. should thoroughly review the situation to ensure its facts and information adequately supports any termination decision.

Practical Example

Mickey works on the production line at Acme Bottling Co. and took FMLA leave over the New Year's holiday due to his heart condition. Many other workers had taken leave over the holiday, leaving the plant short-handed. Upon his return, his supervisor, Justin, complained to him about his absence. In February, Justin issued Mickey a warning for arriving late to work. After three more tardies in March, Justin recommended to the shift manager, Allie, that Mickey be terminated. However, other workers who had not taken FMLA leave were not disciplined when they repeatedly arrived late. Allie did not know about Mickey's FMLA leave or the other workers who were not disciplined for arriving late. Allie decided to terminate Mickey based on Justin's recommendation. Under the cat's paw theory of liability, Acme Bottling Co. may be liable for FMLA retaliation, even though Allie, the decision-maker, did not know that Mickey had used any FMLA leave.

Reinstating Employees Returning From FMLA Leave

Upon return from an FMLA leave, an employee is entitled to be reinstated to the his or her 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. The main goal is to ensure that the employee returns from FMLA leave in the same position the employee would have been in had the employee not taken leave. +29 U.S.C. § 2614 (a); +29 C.F.R. § 825.214 ; +29 C.F.R. § 825.215 ; +29 C.F.R. § 825.216 . See Job Restoration Rights.

Adequately Preparing for Reinstatement

Communicating With Employees While on Leave

To adequately prepare for any challenges that may occur when an employee is expected to return to work, an employer should keep in touch with the employee while he or she is on leave. This permits the employer to stay informed of the employee's status and the employee's intent to return to work. In fact, an employer may require an employee on FMLA leave to report periodically on his or her status and intent to return to work. +29 C.F.R. § 825.311 (a).

Employee Periodic Reporting

An employer may require an employee on FMLA leave to give periodic reports about his or her FMLA status and intent to return to work. +29 C.F.R. § 825.311 (a). For example, the employee may learn during leave that he or she needs to take more leave than originally anticipated. Periodic reports enable the employer to learn of any change to the employee's FMLA status more quickly than it may without the reports. Knowing this information before the employee was originally scheduled to return from leave would allow the employer to make plans to cover the longer absence. +29 C.F.R. § 825.311 (c).

An employer's policy regarding periodic reports must not be discriminatory. The policy must take into account all of the relevant facts and circumstances related to the individual employee's leave situation. +29 C.F.R. § 825.311 (a). In some situations, an employee's leave may be shorter than anticipated. The employer may not require the employee to take more FMLA leave than necessary. However, the employer is also entitled to some sort of advance notice of the employee's intent or need to return to work when circumstances change. As a result, the employer may require reasonable advance notice from the employee of the intent to return before the employee actually returns to work. +29 C.F.R. § 825.311 (c). Reasonable notice is considered to be within at least two business days of foreseeable changed circumstances. See Employee Notice of Intent to Return.

Practical Example

Brandon is on FMLA leave for six weeks due to knee surgery. During his post-operative check-up three weeks into his leave, his doctor tells him that his knee is healing much better than anticipated, and Brandon should only need one more week of FMLA leave, not three. Brandon's employer, Acme Pharmacy Corp., has a policy requiring any employee on leave to report any foreseeable change in leave circumstances within two business days of knowing of the change. As a result of this policy, Brandon promptly informs Acme Pharmacy Corp. of his intent to return to work after only four weeks of leave, rather than six. Acme Pharmacy Corp. has sufficient notice to prepare for Brandon's early return to work, such as terminating the temporary employee Acme Pharmacy Corp. hired to fill in for Brandon.

Employee Notice of Intent to Return

In addition to requiring periodic status reports, an employer may require an employee to verify the intent to return to work. To be effective, verification must occur prior to the FMLA leave period's end. Thus, when an employee intends to return to work sooner than anticipated, the employer may require the employee to provide two business days' notice of the intent to return to work. An employer may not require an employee to take more leave than necessary to address the circumstances for which the leave was taken. Rather, the employee must reinstate the employee once the employee gives reasonable advance notice of the intent to return. +29 C.F.R. § 825.311 (c).

If an employee clearly provides notice that the employee does not intend to return to work, the employer's obligations to maintain health benefits (subject to COBRA requirements) and to restore the employee to employment end. In contrast, these obligations continue if an employee indicates that he or she may be unable to return to work, but expresses a continuing desire to return. +29 C.F.R. § 825.311 (b).

Practical Example

Ryan takes FMLA leave to bond with his new baby. Two weeks prior to his scheduled return to work, Ryan calls his employer, Acme Engineering, clearly stating he has decided to stay home to take care of the new baby. Acme Engineering asks Ryan if he intends to come back to work after the end of his FMLA leave. Ryan says he does not intend to return. Therefore, Acme Engineering terminates Ryan's employment and ends his benefits coverage.

Practical Example

Amber is on FMLA leave for 12 weeks due to a serious back injury. During her leave, she reports in weekly with her supervisor at Acme Pharmacy 123. About six weeks into the leave, Amber tells her supervisor that the recovery is not going as quickly as hoped and that she may not be able to return to work after 12 weeks. However, Amber also tells her supervisor that she is working hard on her recovery and that she still really hopes to return after the 12 weeks. Amber's supervisor believes there is no chance that Amber will really return to work and recommends that Acme Pharmacy 123 fill Amber's position and stop her benefits. Such a recommendation would violate the FMLA because Amber has indicated she still wishes to return to work and circumstances could change, permitting Amber to return to work.

Return to Work or Fitness-for-Duty Certification

Both employers and employees have documentation obligations under the FMLA. When the employee is ready to return to work, an employer may require a return to work or fitness-for-duty certification from the employee. See Requesting Certification of the Need for Leave. In order to require a fitness-for-duty certification, the employer must provide the employee with a list of the essential functions of the employee's position.

When FMLA leave is taken for an employee's own serious health condition, the employer may require that the employee submit a fitness-for-duty certification as a condition of restoring the employee to work. The employer's policy requiring a fitness-for-duty certification must apply to all similarly situated employees, i.e., those with the same occupation or the same serious health condition. It must also be uniformly applied amongst those employees, requiring those employees to obtain and submit certification from the employee's health care provider that the employee is able to return to work. +29 C.F.R. § 825.312 (a); +29 C.F.R. § 825.313 (d).

The employee has the same obligations to participate and cooperate in the fitness-for-duty certification process as in the initial certification process. +29 C.F.R. § 825.312 (a). This obligation includes providing a complete fitness-for-duty certification to the employer. It also includes the employee's obligation to provide the health care provider with sufficient authorization to provide information directly to the employer. See Requesting Certification of the Need for Leave.

There is no DOL-recommended form for fitness-for-duty certification. However, if an employer develops its down fitness-for-duty certification, it should ensure that its form follows the requirements and limits of the FMLA, as well as includes language limiting the use or consideration of GINA-related information. See Communicating With Health Care Provider; The Bermuda Triangle Has Expanded: The FMLA's Intersection with the ADA, Workers' Compensation and More.

Notice Requirement for Fitness-for-Duty Certification

An employer must notify employees in the Designation Notice of any fitness-for-duty certification requirement. +29 C.F.R. § 825.312 (b),(d). This notification must also state whether that fitness-for-duty certification must address the employee's ability to perform the essential functions of the job. +29 C.F.R. § 825.312 (d). See Designation Notice. It is good practice for an employer to give an employee a job description or list of the essential job functions when providing the employee with the Designation Notice. Doing so ensures the employee's health care provider will consider the employee's actual job duties when assessing the employee's fitness for duty.

Fitness-For-Duty Certification's Relationship to Condition Causing FMLA Leave

An employer may seek a fitness-for-duty certification only with regard to the particular health condition that caused the employee's need for FMLA leave. The purpose of the certification is to answer the question of whether the employee is ready and able to resume work, given the serious health condition that caused the employee to take leave. Thus, the certification from the employee's health care provider must certify that the employee is able to resume work. +29 C.F.R. § 825.312 (b). Additionally, an employer may require that the certification specifically address the employee's ability to perform the essential functions of his or her job.

In order to require such a certification, an employer must provide an employee with a job description or a list of the essential functions of the employee's job. The job description or list of essential job functions must be provided no later than with the Designation Notice. In addition, the employer must indicate in the Designation Notice that the fitness-for-duty certification must address the employee's ability to perform the job's essential functions. If the employer has met these requirements, the employee's health care provider must certify that the employee can perform the identified essential job functions. +29 C.F.R. § 825.312 (d). See Designation Notice.

Fitness-For-Duty Certifications for Intermittent/Reduced Leave Schedule

An employer may not require a certification of fitness-for-duty for each absence taken on an intermittent or reduced leave schedule. Rather, the employer may request a fitness-for-duty certification up to once every 30 days if the employer has reasonable safety concerns regarding the employee's ability to perform job duties, based on the serious health condition for which the employee took his or her leave. +29 C.F.R. § 825.312 (f). The employer can set a different interval to receive a fitness-for-duty certification from an employee on intermittent or reduced leave schedule so long as it is not more than once every 30 days.

The employer must advise the employee of the requirement for periodic fitness-for-duty certifications at the time the employer sends the designation of leave notice. See Designation Notice. So long as the employee has submitted a fitness-for-duty certification within the past 30 days of an intermittent or reduced schedule absence, the employee cannot be required to submit another. Reasonable safety concerns must be based on a reasonable belief that a significant risk of harm to the individual employee or others exists. In determining whether reasonable safety concerns exist, an employer should consider the nature and severity of the potential harm and the likelihood that potential harm will occur. +29 C.F.R. § 825.312 (f).

The employer may not terminate the employee's employment while awaiting such a fitness-for-duty certification for an intermittent or reduced schedule leave absence. +29 C.F.R. § 825.312 (f).

Practical Example

Catherine works on a manufacturing assembly line for Acme Corp. Catherine goes on intermittent FMLA leave after she begins experiencing blackouts and fainting spells while on the job. At the time Catherine begins her leave, Acme Corp. has reasonable safety concerns regarding Catherine's ability to work on the assembly line while suffering from blackouts and fainting spells. Acme Corp. is permitted to request a fitness-for-duty certification from Catherine's health care provider, as long as Catherine has not provided one within the past 30 days.

Cost of Fitness-For-Duty Certification

An employee must cover the costs of fitness-for-duty certification. Further, the employee is not entitled to pay from the employer for time or travel costs spent in acquiring the certification. +29 C.F.R. § 825.312 (c).

No Second or Third Opinions for Fitness-For-Duty Certification

An employer cannot require a second or third opinion on a fitness-for-duty certification and cannot require the employee see a particular health care provider. +29 C.F.R. § 825.312 (b). However, with the employee's permission, an employer may contact the employee's health care provider for purposes of clarifying and authenticating a fitness-for-duty certification submitted by an employee. Clarification may be requested only for the serious health condition for which FMLA leave was taken. The employer may not delay the employee's return to work while contact with the health care provider is being made. +29 C.F.R. §§ 825.307 (a); +29 C.F.R. § 825.312 (b). See Communicating With Health Care Provider.

An employer can delay job restoration until an employee furnishes a certification. If an employee returns a certification but the employer needs clarification or authentication, the employer can seek this information but must restore the employee to his or her original or an equivalent job pending receipt. If the employee refuses to authorize the employer to clarify the certification with the health care provider and does not otherwise clarify the certification, the employer may deny restoration (until clarified). +29 C.F.R. § 825.305 (d); +29 C.F.R. § 825.307 (a). Ultimately, it is the employee's responsibility to provide the employer with a complete and sufficient certification and to clarify the certification if necessary. +29 C.F.R. § 825.307 (a). See also Consequences of Failure to Provide Fitness-for-Duty Certification.

In addition, consistent with the ADA's requirements, an employer may require an employee to undergo a medical examination (at the employer's expense) after an employee returns from FMLA leave. See Employee Management > Disabilities (ADA).

GINA Safe Harbor Statement When Fitness-For-Duty Certification is Requested

The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits an employer from requesting or requiring genetic information of an employee or an employee's family member, with certain exceptions provided by law. Genetic information should not be requested as part of a fitness-for-duty certification. In fact, it is recommended that an employer include specific safe harbor language with any request for a fitness-for-duty certification; therefore, the following safe harbor language should be included with any FMLA Designation Notice, putting an employee on notice of an obligation to provide a fitness-for-duty certification before returning to work:

Important Notice to Employee:

The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to any request for a fitness-for-duty certificate referenced in this Designation Notice.

"Genetic information," as defined by GINA, includes an individual's family medical history, the results of an individual's or family member's genetic tests, the fact that an individual or an individual's family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual's family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.

See Employee Management > EEO - Discrimination > Genetic Information - Genetic Information Nondiscrimination Act; EEOC Regulations (Under GINA); The Bermuda Triangle Has Expanded: The FMLA's Intersection with the ADA, Workers' Compensation and More.

Consequences of Failure to Provide Fitness-For-Duty Certification

If the employer has provided the proper notice that a fitness-for-duty certification will be required, it may delay reinstating an employee until the employee submits a required fitness-for-duty certification. +29 C.F.R. § 825.312 (e). If the employer has not provided the proper notice, the employer may not delay reinstating the employee. If an employer provides the requisite notice, an employee who does not provide a fitness-for-duty certification or ask for additional FMLA leave is no longer entitled to reinstatement under the FMLA. +29 C.F.R. § 825.312 (e); +29 C.F.R. § 825.313 (d).

If an employee cannot get clearance to return to work through the fitness-for-duty certification, he or she may be eligible for additional FMLA leave so the employee can try and recover from the serious health condition. If the employee has exhausted FMLA leave, he or she may be entitled to additional protection as a qualified individual with a disability under the ADA, and the additional unpaid leave may be required as a reasonable accommodation. See The Bermuda Triangle Has Expanded: The FMLA's Intersection with the ADA, Workers' Compensation and More.

Key Employee Notice Relating to Reinstatement

Under limited circumstances, where reinstatement will cause substantial and grievous economic injury to its operations, an employer may refuse to reinstate certain highly paid, salaried key employees. +29 C.F.R. § 825.218 . See Designation Notice.

Once an employer makes a good-faith determination, based on the facts available, that its operations will suffer substantial and grievous economic injury if a key employee is reinstated, the employer must notify the employee in writing:

  • Of the employee's status as a key employee;
  • Of the basis for the employer's finding that substantial and grievous economic injury will result; and
  • If the employee's leave has already started, that the employee has a reasonable opportunity to return to work.

The employer cannot deny FMLA leave to a key employee, just reinstatement. +29 C.F.R. § 825.219 .

Generally, an employer must notify an employee that the employee qualifies as a key employee at the time the employee gives notice of the need for FMLA leave (or when FMLA leave commences, if earlier). +29 C.F.R. § 825.219 (a). At the same time, the employer must also fully inform the employee of the potential consequences with respect to reinstatement and maintenance of health benefits if the employer should determine that substantial and grievous economic injury to the employer's operations will result if the employee is reinstated from FMLA leave. See Designation Notice.

If this notice cannot be given immediately because the employer needs to determine whether the employee is a key employee, notice must be given as soon as practicable after being notified of the employee's need for leave (or the commencement of leave, if earlier). +29 C.F.R. § 825.219 (a).

An employer is not required to give the key employee notice, but if it fails to provide timely notice, it will lose its right to deny restoration even if substantial and grievous economic injury will result from reinstatement.

Job Restoration Rights

Same or Equivalent Position

At the end of an employee's FMLA leave, the employer must restore the employee to the position held when the leave began. +29 C.F.R. § 825.214 . Alternatively, the employee may be restored to an equivalent position with equivalent employment benefits, pay and other terms and conditions of employment. +29 C.F.R. § 825.215 .

An employee is entitled to reinstatement to the same or an equivalent position, even if the employee has been replaced or the position has been restructured to accommodate the leave. Although the section below focuses solely on job restoration rights under the FMLA, employees may also be independently entitled to return to their jobs (rather than an equivalent position) in accordance with the provisions of an employment agreement, collective bargaining agreement or other contract, or pursuant to laws such as USERRA, which provides expansive job restoration rights for employees returning from military leaves of absence with a service-related injury. See The Bermuda Triangle Has Expanded: The FMLA's Intersection with the ADA, Workers' Compensation and More and Employee Leaves > USERRA > USERRA Interplay.

An equivalent position is one that is "virtually identical" to the employee's former position in terms of pay, benefits and working conditions, including privileges, prerequisites and status. To be equivalent, the position must involve the same or substantially similar duties and responsibilities. The position must also entail substantially equivalent skill, effort, responsibility and authority. Reinstatement to a job that is slated for layoff when the employee's original position is not slated for layoff would not meet the requirements of restoration to an equivalent position. +29 C.F.R. § 825.215 (a).

Equivalent Pay

Pay Increases

An equivalent position must have the same pay rate as the employee's position prior to the FMLA leave. If, during the course of the employee's FMLA leave, there was a pay increase, then whether the employee is entitled to it upon return from leave depends on the nature of the increase. +29 C.F.R. § 825.215 (c). For example, the employee is entitled to any unconditional pay increases which occurred during the FMLA leave, such as cost of living increases. When it comes to conditional pay increases (such as those based on seniority, length of service or work performed), however, the employee is only entitled to the increase if the employer's policy allows employees on equivalent leave status for a reason that does not qualify as FMLA leave to receive such benefits. If so, then the conditional pay raise must be paid to the employee on FMLA leave as well.

Practical Example

Acme Pharmaceuticals maintains a policy providing that employees receive seniority wage increases every full year that they work for the company. However, Acme's policy also provides that any employee who takes unpaid leave exceeding 30 days during the applicable working year has his or her seniority wage increased for that year reduced by 25 percent. An employee's paid time off (including PTO and vacation time) does not impact the amount of the seniority wage increase. Joe takes eight workweeks (40 days) of unpaid FMLA leave during the applicable work year. Acme is permitted to reduce Joe's seniority wage increase for the work year, because employees on equivalent leave status (unpaid leave) for reasons that do not qualify as FMLA leave also would have their seniority wage increase reduced.

Practical Example

Assume that Acme maintains the same policy regarding seniority wage increases referenced in the previous example. Joe takes eight workweeks (40 days) of unpaid FMLA leave during the applicable work year, five weeks of which are paid (PTO) and three of which are unpaid. Acme may not reduce Joe's seniority wage increase for the work year based on Joe's FMLA leave, because only 15 days of the leave were unpaid. Further, employees using PTO for non-FMLA reasons would not have their seniority wage increase reduced as a result of such leave, so Joe's five weeks of FMLA for which he received PTO similarly cannot be counted against Joe under Acme's seniority wage increase policy.

Shift Differentials/Overtime

An equivalent position includes pay premiums, such as shift differentials or overtime, that the employee was receiving at the time he or she went on FMLA leave. Thus, for example, if the employee held a position averaging 10 hours of overtime each week before the FMLA leave, then upon the employee's return to work, the employee is entitled to reinstatement to a position with the same average overtime. +29 C.F.R. § 825.215 (c)(1).

Practical Example

Jimmy works as a swing shift lead at Acme Bagel Corp.'s Broadway Avenue store. In his position, he typically works seven hours of overtime each week because the swing shift is the busiest time for the store. He also gets 10 cents per hour additional in shift differential pay. While Jimmy is on FMLA leave, Acme Bagel decides it must fill the swing shift lead position with someone else to avoid jeopardizing its operations. When Jimmy is ready to return from FMLA leave, Acme Bagel decides that it does not want to displace the person who filled Jimmy's job while he was on leave. Among the various considerations Acme Bagel must take into account when returning Jimmy to the same or an equivalent job is to look into putting Jimmy back into a position that would offer the same overtime opportunities and shift differential pay.

Bonuses

Equivalent pay also includes payment of any bonuses made to employees who are on an equivalent leave status for a reason that does not qualify as FMLA leave. +29 C.F.R. § 825.215 (c)(1)-(2). When the employer has a bonus or other payment program based upon the achievement of a specified goal, the employer is not obligated to pay the bonus or other payment to an employee on FMLA leave if the employee does not meet the specified goal. Specified goals may include:

  • Working a certain number of hours;
  • Selling a certain number of products; or
  • Maintaining perfect attendance.

However, this exception will only be permitted if the employer treats employees on FMLA leave the same as employees on equivalent leave status for a reason that does not qualify as FMLA leave.

Practical Example

Tom and Billy both work at Acme Janitorial. Acme offers a perfect attendance bonus to any employee who, each quarter, does not miss a day of work. Tom takes one week off from work for a vacation and uses his vacation pay. Billy takes one week off from work for FMLA and also uses his vacation pay. At the end of the quarter, neither Tom nor Billy is eligible for Acme Janitorial's perfect attendance bonus because each took time off from work. In this situation, denying the bonus to Billy because of his FMLA related absence is permitted.

Practical Example

Sophia and Jon both work at Acme Janitorial. Acme offers a perfect attendance bonus to any employee who, each quarter, does not miss a day of work. Sophia takes one week off from work for a vacation and uses her vacation pay. Jon takes one week off from work for FMLA and also uses his vacation pay. At the end of the quarter, Jon is deemed ineligible for the perfect attendance bonus because he was absent during the quarter. Sophia, on the other hand, is deemed eligible for the bonus because her absences were related to the use of vacation time unrelated to a leave of absence of any kind. In this situation, denying the bonus to Jon is improper, because Acme treated two employees who were on an equivalent leave status (vacation) differently based only on the fact that one employee, Jon, took an FMLA leave of absence concurrent with his use of vacation.

Practical Example

Darlene and Amanda both work at Acme Janitorial. Acme offers a perfect attendance bonus to any employee who, each quarter, does not miss a day of work. Days of vacation are not considered absences under the policy, but paid time off (PTO) days are considered absences. During the quarter, Darlene takes one week off from work for FMLA and concurrently uses vacation pay. Clark takes one week off from work for FMLA and concurrently uses PTO. Amanda takes one week off from work for FMLA and does not use her vacation pay or PTO. At the end of the quarter, Darlene is eligible for Acme Janitorial's perfect attendance bonus, but neither Clark nor Amanda is eligible. Acme's policy is permissible because it treats employees on equivalent leave statuses the same regardless of whether or not they are on FMLA concurrent with the leave status.

Equivalent Benefits

An equivalent position requires the employer to provide an employee returning from FMLA leave with equivalent employment benefits. +29 C.F.R. § 825.215 (d). This includes all benefits provided or made available by an employer, including group life insurance, health insurance, disability insurance, sick leave, annual leave, educational benefits and pensions. Equivalent benefits must be provided to employees returning from FMLA leave regardless of whether those benefits are provided by an employer practice, written policy or through an ERISA benefit plan. At the conclusion of the FMLA leave, the employer is required to restore all employment benefits in the same manner and at the same levels as provided when the leave began.

Changes to Benefit Plans Made During the FMLA Leave

The employer must treat employees on FMLA leave as if they had continued to work for purposes of changes to the benefit plans. Upon return from FMLA leave, employees are entitled to changes in the benefit plans to the same extent that they would have qualified if no leave had been taken. Changes that are dependent upon seniority or accrual during the period of the FMLA leave, however, are not required to be provided to employees. For example, if the benefit plan is predicated on a pre-established number of hours worked each year and the employee does not have sufficient hours as a result of taking the FMLA leave, the benefit is lost. +29 C.F.R. § 825.215 (d)(1).

In addition, if the employer has made changes to any benefit or benefit level during the course of the employee's FMLA leave that affected the entire workforce, then the employer need only provide the returning employee with the new benefit.

Re-Qualification for Benefits Prohibited

After return from FMLA leave, an employer may not require an employee to re-qualify for any benefit that the employee enjoyed prior to the FMLA leave (including family or dependent coverage). For example, if an employee was covered by life insurance before FMLA leave but the coverage lapsed during the leave for any reason the employer cannot require the employee to meet any qualifications. This means that the employee cannot be:

  • Required to take a physical examination in order to re-qualify for life insurance upon return from FMLA leave;
  • Forced to wait the specified waiting period for new employees to qualify for benefits coverage; and/or
  • Excluded from coverage under any new pre-existing condition waiting period.

+29 C.F.R. § 825.209 (e); +29 C.F.R. § 825.212 (c); +29 C.F.R. § 825.215 (d)(1).

Compliance with this rule may require an employer to modify life insurance or other benefit programs and plans to ensure that employees returning from FMLA leave are restored to positions that have equivalent benefits. Such modification may include an employer making arrangements for continued payment of the costs to maintain the benefit during the FMLA period or for the employer to pay those costs subject to recovery of the employee on return of leave as with health insurance benefits. +29 C.F.R. § 825.215 (d)(1).

If the employer desires to continue life insurance, disability insurance or other types of benefits for which the employee typically pays, it must follow its established policies and practices for continuing such benefits for other types of unpaid leaves. If there is no established policy or practice, the employer and employee are encouraged to agree upon arrangements before the FMLA leave begins. +29 C.F.R. § 825.215 (d)(3).

Accrual of Benefits During FMLA Leave

An employee is not entitled to continue accruing any additional benefits or seniority during unpaid FMLA leave. +29 C.F.R. § 825.215 (d)(2). The employer may voluntarily agree to permit such accruals, but is not required to do so by the FMLA. At a minimum, an employer should ensure that its policies with regard to accrual of benefits and seniority are no less favorable for those on unpaid FMLA leaves as they are for employees on other types of leave. An employer should address benefit accrual in its FMLA policy to avoid employee confusion and to avoid treating employees differently each time a leave issue arises.

An employee remains entitled to use benefits accrued up to the time the FMLA commences, such as paid vacation, sick leave, personal leave and PTO. Such benefits may be used during leave, so long as use complies with the law and the employer's policy. Further, to the extent the employee has not used these benefits while on leave, the benefits must be available to the employee, as they normally would, after the employee returns from FMLA leave.

Pension/Retirement Plans - Breaks in Service and Vesting Requirements

Unpaid FMLA leave cannot be treated as or counted toward a break in service for purposes of vesting and eligibility under any retirement or pension plan. Furthermore, if the plan requires an employee to be employed on a specified date in order to be credited for a year of service for purposes of vesting, contributions or participation, an employee on FMLA leave on that date is deemed to have been employed on that date for such purposes. However, unpaid FMLA leave need not be treated as credited service for purposes of benefit accrual, vesting or eligibility to participate. +29 C.F.R. § 825.215 (d)(4).

Equivalent Terms and Conditions of Employment

An equivalent position must have substantially similar duties, conditions, responsibilities, privileges and status as the employee's original position. This includes restoration to the:

  • Same or a geographically proximate worksite;
  • Same shift;
  • Same or equivalent work schedule; and
  • Same opportunity for bonuses, profit sharing and similar payments (whether discretionary or not).

This requirement does not extend to very small, intangible aspects of the employee's job that are not easily measured. Changes to things such as requiring an employee to share office space upon return from leave have been found to be so small or minor that the changes are not considered impermissible under the FMLA. See Montgomery v. Maryland, +266 F.3d 334 (4th Cir. 2001). Similarly, assigning someone less travel in their job has also, in some circumstances, been seen as an intangible or minor change that is permissible under FMLA.

If the employee's original worksite has been closed, the employee is entitled to the same rights as if he or she had not been on FMLA leave when the worksite closed. Therefore, if an employer transfers all employees from the closed worksite to another worksite in a different city, the employee on FMLA leave is also entitled to transfer under the same conditions as if he or she had not taken leave. +29 C.F.R. § 825.215 (e)(1).

Practical Example

Marcus works for Acme Steakhouse as a bartender at its downtown location. While Marcus is on FMLA leave, Acme closes its downtown location and transfers the entire downtown staff to its new location in the shopping mall 20 miles away. When Marcus is ready to return to work from his FMLA leave, he will be entitled to also transfer to the new Acme Steakhouse shopping mall location.

Upon return from FMLA leave, if the employee requests to return to a different shift, schedule or position to better accommodate the employee's personal needs, an employer can agree to the request, but is not required to do so under the FMLA. An employer cannot, however, induce an employee returning from FMLA leave to accept a different position against the employee's wishes. +29 C.F.R. § 825.215 (e)(4).

Practical Example

Angela works for Acme Steakhouse as a server at its downtown location. While Angela is on FMLA leave, Acme closes its downtown location and transfers the entire downtown staff to its new location in the shopping mall 20 miles away. When Angela is ready to return to work from her FMLA leave, she asks that she be assigned to the location nearest the city park because it is closer to her home than the new shopping mall location. Acme Steakhouse can accommodate Angela's request if it chooses, but it is not required to do so.

Joint Employers

Job restoration is the primary responsibility of the primary employer in a joint employer relationship. See Joint Employers. The primary employer is also responsible for giving required FMLA notices to its employees, providing the FMLA leave and maintaining health benefits. The secondary employer is responsible for accepting the employee returning from FMLA leave in place of a replacement employee if:

  • That employer continues to utilize an employee from the temporary placement agency; and
  • The agency chooses to place the employee with the secondary employer.

The secondary employer is also responsible for complying with the FMLA's prohibited acts provisions regarding jointly employed employees, whether or not the secondary employer is covered by the FMLA. Prohibited acts include interfering with an employee's attempt to exercise FMLA rights and terminating or discriminating against an employee for opposing a practice that is unlawful under the FMLA. A covered secondary employer is responsible for complying with all of the provisions of the FMLA with respect to its regular, permanent workforce. Both primary and secondary employers must count jointly employed employees for FMLA coverage and eligibility determinations.

+29 C.F.R. § 825.106 (e).

Practical Example

Sven works for Acme Temporary Agency. He is placed as a temporary employee to work at ABC Accountants, a wholly separate company from Acme Temporary Agency. Sven takes FMLA leave. When he is ready to return to work, Acme Temporary Agency, as the primary employer, is responsible for returning him to work. However, ABC Accountants will be obligated to use Sven's services once he returns from FMLA leave if ABC Accountants is still using Acme Temporary Agency to staff its employment needs and if Acme Temporary Agency wishes to place Sven back with ABC Accounting.

Conditions to Qualify For Reinstatement

Some positions require conditions to be met, such as having an active license, in order for an employee to be granted reinstatement. This may include situations such as:

  • The employee must attend a necessary course to renew a license or else the employee cannot work in that job;
  • The employee must work a minimum number of hours to keep a license or else the employee cannot work in that job; or
  • The employee must perform tasks with a certain frequency to keep a license or else the employee cannot work in that job.

If an employee is no longer qualified for the position because he or she was unable to meet the licensing or other conditions necessary in order for him or her to be able to perform the job due to the FMLA leave, the employer must provide the employee a reasonable opportunity to fulfill those conditions upon returning to work. +29 C.F.R. § 825.215 (b).

Light Duty and the Right to Job Restoration

If an employee accepts an employer's offer of light-duty work while the employee is recovering from a serious health condition, that employee does not waive his or her right to job restoration to the same or equivalent pre-leave position. The time spent on light duty does not count against an employee's FMLA leave entitlement, because the employer is allowing the employee to work in an alternative position, rather than take leave. Therefore, at the conclusion of a voluntary light-duty assignment, the employee has the right to be restored to the position he or she held prior to taking FMLA leave, so long as the employee can perform the essential functions of his or her job and the applicable leave year has not expired.

Practical Example

Max works for Acme Consulting. His regular job involves an extensive amount of travel, which he cannot currently do as a result of the medical treatment he is receiving for his serious health condition. Although Max qualifies for FMLA leave because he is unable to perform the functions of his regular job until his treatment is complete, Max asks Acme whether there are any other jobs he can perform without traveling, in lieu of taking unpaid leave from work. Acme allows Max to perform sales work to develop the consulting side of the business, which he can do on-site and without traveling, until his treatment is over. The time Max spends performing this light-duty work may not be counted as leave under the FMLA, and Max retains his right to be returned to his original position until the end of the applicable leave year.

If a voluntary light-duty assignment ends but the employee is still not able to perform the essential functions of his or her job, the employee can use any FMLA leave time that is still available. Once the employee's FMLA time is exhausted, assuming he or she can perform the essential functions of his or her job, the employee must be returned to the same or equivalent position. If the employee is unable to perform the essential functions of the job once the light-duty assignment is over, and all FMLA time has been exhausted, the employer may still need to consider whether it has any obligations to accommodate requests for additional leave and/or alternative work under the Americans with Disabilities Act. As a cautionary note, an employer that offers long-term, light-duty assignments to employees for any reason may have difficulty demonstrating that such accommodations are not reasonable going forward, or that continuing to do so would pose an undue hardship on the company. See The Bermuda Triangle Has Expanded: The FMLA's Intersection With the ADA, Workers' Compensation and More - Legal Insight.

Practical Example

Bert works for Acme Upholstery. He has been diagnosed with severe asthma, and the dust in the factory has made it worse. Bert has taken a full 12 weeks of FMLA leave and his doctor has told him that he is not well enough to return to the same environment. Acme Upholstery should determine if Bert's asthma is a disability under the ADA (it probably is). If so, it should work with Bert to determine if a reasonable accommodation will enable him to return to work. The accommodation could include assignment to a vacant position to continue a leave of absence as an ADA accommodation. This may be a good approach if Bert's doctor thinks he may improve with further time away from work. Other accommodations may be transfer to another position for which Bert is qualified but which will place him in a part of the plant with less dust, or installing filters or other modifications of the work area that will reduce the dust for Bert and/or for other workers as well.

Circumstances Affecting Restoration Rights

An employer may deny restoration rights to the following:

  • A key employee, subject to certain requirements (see Key Employee Distinctions);
  • An employee who would not have remained employed even if the leave was not taken (see RIFs/Restructuring; Hired for Discrete Term or Project);
  • An employee who fraudulently obtained FMLA leave or violated a uniformly and consistently applied policy, such as a no-moonlighting policy (see FMLA Fraud);
  • An employee who failed to provide a fitness-for-duty certification, when the employer requested the certification pre-leave (for employee's serious health condition) and notified the employee of the consequences of failing to meet this requirement (see Failure to Provide Fitness-for-Duty Certification); or
  • An employee clearly advises the employer that he or she does not intend to return to work.

Key Employee Distinctions

An employer may deny restoration rights to a key employee if:

  • The employee meets the definition of a key employee under the FMLA;
  • The denial of reinstatement is necessary to prevent substantial and grievous injury to the operations of the employer;
  • The employer notifies the employee of the intent to deny restoration; and
  • After the leave has commenced, and upon receipt of such notice, the employee elects not to return to work.

See Employer Notices Relating to Key Employee Status.

A key employee is defined as a salaried employee who is among the highest paid 10 percent of all employees employed by the employer within 75 miles of that employee's worksite. The threshold question is whether the employee is salaried. To be considered salaried, the employee must meet the salary basis portion of the test for white collar exemptions under the FLSA. +29 CFR § 541.602 . See Employee Compensation > Employee Classification > The Salary Basis Test.

Next, the employer needs to determine whether the employee is among the highest paid 10 percent of individuals. All employees, whether salaried or non-salaried, who are employed within 75 miles of the key employee's worksite must be considered. Whether these employees are eligible for FMLA benefits or not is irrelevant to the monetary threshold analysis for key employees. To determine their respective salaries, the year to date earnings for each employee must be divided by the number of weeks worked (including paid leave). Earnings include:

  • Wages;
  • Premium pay;
  • Incentive pay; and
  • Bonuses (discretionary and non-discretionary).

Earnings do not include incentives whose value is determined at some future date, such as stock options. No more than 10 percent of the employer's employees within a 75-mile radius may be considered key employees. This determination is made at the time the employee gives notice of the need for FMLA leave. +29 C.F.R. § 825.217 .

Grievous Economic Harm Standard

Even assuming the employee meets the key employee standards, in order to deny restoration to a key employee, the employer must first demonstrate that job restoration will cause substantial and grievous economic injury to the employer. The standard is not whether the absence of the employee will cause such substantial and grievous economic injury; rather, the employer must look at the impact of job restoration. In making this determination, the employer may take into account its ability to replace the employee on a temporary basis during the FMLA leave. If permanent replacement is unavoidable, the cost of then reinstating the employee can be considered in evaluating whether substantial and grievous economic injury will occur from job restoration. +29 C.F.R. § 825.218 .

There is no precise test for the level of hardship or injury to the employer that must be reached. If the reinstatement of the key employee threatens the economic validity of the employer, then that would constitute substantial and grievous economic injury. A lesser injury that causes substantial, long-term economic injury is also sufficient to meet the standard. However, minor inconveniences and costs that the employer would experience in the normal course of business would not suffice. The substantial and grievous economic injury standard is different from and more stringent than the undue hardship test for refusal to accommodate under the ADA.

Notices to Key Employee

If an employer believes that reinstatement may be denied on the basis of the key employee exception, the employer must give written notice to the employee that the employee qualifies as a key employee at the time the employee gives notice of the need for FMLA leave. The employer must also fully inform the employee of the potential consequences with respect to reinstatement and maintenance of health benefits if the employer should determine that substantial and grievous economic injury to the employer's operations will result if the key employee is reinstated after FMLA leave. If the employer cannot provide such notice immediately, because of the need to determine whether the employee is a key employee, then notice must be given as soon as practicable after the request for leave is made. Failure to provide timely notice will result in an employer's loss of the right to deny reinstatement (even in the event of substantial and grievous economic injury). +29 C.F.R. § 825.219 .

As soon as the employer makes a good-faith determination that substantial and grievous economic injury to its operations will result if the key employee is reinstated, the employer must tell the employee. This second notice must be in writing and it must also state that the employer cannot deny FMLA leave and that it intends to deny reinstatement at the conclusion of FMLA leave. In its notice, the employer must also explain the basis for its finding of substantial and grievous economic injury. The regulations anticipate that the employer will ordinarily be able to give this notice before the employee goes out on FMLA leave. Such notice must be delivered in person or by certified mail. +29 C.F.R. § 825.219 . See Employer Notices Relating to Key Employee Status.

Reasonable Opportunity to Return to Work

If the FMLA leave has already commenced, the employer's notice must provide the key employee a reasonable time to return to work. If the employee does not return to work, then the employee will continue on FMLA leave and continue to be eligible to receive health benefits, and the employer may not recover its cost of maintaining such benefits. +29 C.F.R. § 825.219 .

Even if the key employee does not return to work in response to the notice, the employee may still request reinstatement at the conclusion of the FMLA leave. At that time, the employer must again determine whether substantial and grievous economic injury will occur. This determination must be made based upon the facts available at the time of the request to return. If the employer determines at this point that such injury will occur then the employer must again notify the key employee in writing of the denial of reinstatement. This third notice must be provided in person or by certified mail. A key employee's rights under the FMLA continue unless and until the employee either gives notice that he or she no longer wishes to return to work or the employer actually denies reinstatement at the end of the leave period. +29 C.F.R. § 825.219 .

RIFs/Restructuring

An employee on FMLA leave has no greater right to reinstatement or to other benefits and conditions of employment than if he or she had been continuously employed during the FMLA leave. To deny reinstatement, an employer must show that the employee would not have otherwise been employed at the time of the request to return to work. +29 C.F.R. § 825.215 (e). If an employer performs a reduction in force (RIF), and the employer lays off an employee on FMLA leave, the employer will have the burden of showing that the employee would not have been otherwise employed at the time of the requested job reinstatement.

An employer going through a RIF should be wary about the timing of any decision to lay off employees or eliminate a job position where the decision affects employees on FMLA leave (or those who have already requested FMLA leave). Each such decision requires the employer to exercise independent business judgment based on all of the facts and circumstances, but the employer should carefully consider the timing of separating affected employees who are currently taking or seeking FMLA.

An employer should remember that such separations - whether during or at the end of an employee's leave - may still be scrutinized for disproportionately affecting certain protected classes of employees, including those taking leave, and could subject the employer to retaliation claims under the FMLA (or disparate impact claims under other laws). For this reason, any such decisions should be carefully documented and explained. See Organizational Exit > Involuntary Terminations > Layoffs, Reductions in Force and Plant Closings.

An employer must offer any employee laid off in a RIF, or otherwise terminated, information on COBRA rights and any other rights or benefits under state or local law. See Employee Benefits > Health Care Continuation (COBRA) > State Requirements.

Practical Example

Jeffrey takes a FMLA leave from Acme Hotel. During his FMLA leave, he is laid off and his employment is terminated. Once Jeffrey is laid off from employment, Acme Hotel no longer is required to continue the FMLA leave, maintain health benefits or reinstate Jeffrey (unless there are continuing obligations under a collective bargaining agreement or otherwise). Acme Hotel has the burden to demonstrate that Jeffrey would have been laid off regardless of whether he took FMLA leave or not.

The same is true if the employee's shift is eliminated during the leave. In that circumstance, the employee would not need to be restored to work on that shift. If, however, the employee's position on a particular shift has been filled by another employee in his FMLA absence, then the employee is entitled to return to the same shift he or she held before taking FMLA leave. Similarly, if overtime has been decreased for the position while the employee is on FMLA leave, at the conclusion of the leave, the employee would not be entitled to the restoration of such overtime. +29 C.F.R. § 825.215 (e).

FMLA Fraud

An employee who fraudulently obtains FMLA leave is not entitled to:

  • Job restoration at the conclusion of the leave; or
  • Maintenance of health benefits.

+29 C.F.R. § 825.216 (d). An employee who works another job during the FMLA leave is not automatically considered to have committed fraud. If the employer has a uniformly applied policy prohibiting such outside employment, then that policy may continue to apply while the employee is on FMLA leave. (An employer should be aware that some jurisdictions place limits on "no moonlighting" policies.) Where no such policy exists, the employer is not allowed to deny FMLA benefits unless the employer can prove that the FMLA leave was fraudulently obtained. +29 C.F.R. § 825.216 (e). See Moonlighting Policies; Curbing FMLA Fraud and Abuse.

Failure to Provide Fitness-for-Duty Certification

An employer may also delay reinstatement until an employee submits a fitness-for-duty certification so long as:

  • The employer has a uniformly applied policy or practice;
  • All similarly situated employees returning from FMLA leave are subject to the same policy or practice; and
  • The employee is returning from an FMLA leave due to his or her own serious health condition.

+29 C.F.R. § 825.312 . If the employee fails to provide the fitness-for-duty certification or request additional FMLA leave, then he or she is no longer entitled to reinstatement. +29 C.F.R. § 825.312 (e).

In order to require a fitness-for-duty certification, the employer must inform the employee in the FMLA designation notice (provided before the FMLA leave) of the requirement. In the designation notice, the employer must also indicate if the fitness-for-duty certification is required to address the employee's ability to perform the essential functions of the employee's job. If so, the employer must include a list of the position's essential functions. The fitness-for-duty certification can only address the particular health condition for which the FMLA leave was taken. If the employer requests clarification or authentication of the fitness-for-duty certification, the employer may contact the employee's health care provider. The employer may not delay the employee's return to work while such contact is being made. Further, unlike the original FMLA medical certification, no second or third opinions on the fitness-for-duty certification may be required. +29 C.F.R. § 825.312 (b). See Content of Designation Notice; Return to Work or Fitness-for-Duty Certification.

Hired for Discrete Term or Project

An employer may deny restoration from FMLA leave if it hired an employee only for a specific term or to perform work on a discrete project. The denial of restoration in this situation is permissible so long as:

  • The specified term or project is over; and
  • The employer would not have otherwise continued to employ the employee notwithstanding the FMLA leave.

If the employee was hired to work on a contract and, at the expiration of that contract, the work was awarded to another contractor, the employee returning from FMLA leave may have a right to reinstatement by the successor employer. +29 C.F.R. § 825.216 (a)(3). See Successor Employers.

Documentation Pertaining to FMLA

The FMLA requires an employer to make, maintain and preserve records pertaining to its FMLA obligations, which may include documents related to job restoration efforts or, in some instances, the inability to restore an employee to his or her job. Although documentation of job restoration efforts may not be recorded on official FMLA forms or kept in leave files, an employer must keep all such records related to employees on FMLA leave in accordance with the recordkeeping requirements of the FMLA. See FMLA Recordkeeping Requirements.

The FMLA is wholly distinct from the reasonable accommodation obligations of employers covered by the ADA. The FMLA's purpose is to make leave available for eligible employees and covered employers and not to limit already existing rights and protections to employees under other federal laws. Therefore, an employer must provide leave under whichever statutory provision (i.e., FMLA or ADA) provides the greatest protection to the employee. Consequently, if an employee is a qualified individual with a disability within the ADA's meaning, the employer must reasonably accommodate the individual, which may include a leave of absence under the ADA (regardless of what rights an employee may have under the FMLA, if any). At the same time, covered employers must provide eligible employees with leaves under the FMLA. +29 C.F.R. § 825.702 . See The Bermuda Triangle Has Expanded: The FMLA's Intersection with the ADA, Workers' Compensation and More.

The job restoration rights of employees on FMLA and ADA leaves differ. The ADA requires restoration to the employee's same job, whereas the FMLA allows reinstatement to an equivalent position. The employer's FMLA obligations would be satisfied if the employer offered the employee an equivalent full-time position at the conclusion of the FMLA leave. However, if the employee could not perform the essential functions of that equivalent position even with a reasonable accommodation due to a disability, the ADA may require the employer to make a reasonable accommodation at that time by allowing the employee to work part-time or by reassigning the employee to a vacant position, absent undue hardship. See The Bermuda Triangle Has Expanded: The FMLA's Intersection with the ADA, Workers' Compensation and More; Employee Management > Disabilities (ADA) > Duty to Accommodate and the Interactive Process.

Practical Example

Andrew has an ADA disability and is eligible for FMLA leave. Andrew requests a 10-week medical leave as a reasonable accommodation. His employer, Acme Automotive, grants the 10-week medical leave. Acme advises Andrew that the 10 weeks of medical leave is also being designated as FMLA leave and will count towards his 12-week leave entitlement. This designation does not prevent Acme and Andrew from also treating the leave as a reasonable accommodation. This means that, under the ADA, Andrew must be reinstated to the same job, rather than an equivalent position under the FMLA, as reinstatement to the same job is a greater benefit than reinstatement to an equivalent position.

If Andrew needed to work part-time upon returning to work, he would still be entitled under the FMLA to have group health plan coverage maintained for the remainder of the FMLA period, which is two weeks. This is true even if Acme Automotive has a policy that part-time employees do not receive health insurance. At the conclusion of the FMLA period, if Andrew continued to work part time as an ADA reasonable accommodation, Andrew would only be entitled to the employment benefits ordinarily provided to other part-time employees.

Interaction With Workers' Compensation, State and/or Local Law and Collective Bargaining Agreements

If an employee's FMLA leave is running concurrently with workers' compensation leave and the employee's health care provider certifies that the employee is able to return to light duty work and the employer offers such a position, the employee may accept it but is not required to do so. +29 C.F.R. § 825.702 (d)(2). In the event the employee refuses the light-duty position, the employee may no longer qualify for workers' compensation benefits, but is still entitled to continue on unpaid FMLA leave until either:

  • The employee is able to return to the same or equivalent position; or
  • The 12-week FMLA period is exhausted.

When the leave becomes unpaid FMLA leave solely, then the provisions of the FMLA regarding substitution of paid time off benefits would become applicable and the employer can (if consistent with the employer's policy) require the substitution of paid time off benefits for the unpaid leave. +29 C.F.R. § 825.207 . At the conclusion of the FMLA period, if the employee does not return to work and remains on workers' compensation leave:

  • The employee no longer has the protections of the FMLA; and
  • The employer's FMLA reinstatement obligation ceases.

The employee, however, may still have return to work rights available under the state workers' compensation laws. In addition, an employee returning from workers' compensation leave may be a qualified individual with a disability. Therefore, the employee may also have rights under the ADA. See The Bermuda Triangle Has Expanded: The FMLA's Intersection with the ADA, Workers' Compensation and More.

Furthermore, an employee on workers' compensation leave or FMLA leave must still comply with a collective bargaining agreement that provides greater benefits. If the terms of a collective bargaining agreement or other state or local laws govern an employee's return to work, those provisions must be applied. See The Bermuda Triangle Has Expanded: The FMLA's Intersection with the ADA, Workers' Compensation and More.

Curbing FMLA Fraud and Abuse

Many employers get frustrated when they think an employee is abusing the FMLA or fraudulently using approved FMLA leave for non-FMLA reasons. The DOL has tried to provide employers with tools to help manage employees that are abusing or fraudulently using FMLA leave. However, employers still get frustrated. The first step an employer should take is to understand what FMLA fraud or abuse is. The next step is to understand what strategies it can implement to control the abuse or fraud. See Steps to Prevent FMLA Fraud and Abuse - Checklist.

What Is FMLA Fraud?

FMLA fraud occurs when an employee takes FMLA leave for purposes other than those permitted under the FMLA. See Qualifying Reasons for Leave. Fraud may take a variety of forms, including, but not limited to, the following:

  • Forging or providing invalid health care or military exigency certifications;
  • Using properly certified intermittent leave when it is not medically necessary;
  • Using FMLA leave for a personal absence that is unrelated to a serious health condition;
  • Working for another employer, performing the same or similar duties that the employee's medical certification form says he or she is not able to perform; and
  • Engaging in off-duty activity that is inconsistent with the limitations that the employee's serious health condition imposes.

The FMLA's job restoration and maintenance of health benefits requirements do not protect an employee who fraudulently obtains FMLA leave from an employer. See Job Restoration Rights; Maintenance of Employee Health Benefits.

Practical Example

Martha has properly certified intermittent leave for migraine headaches under the FMLA. Over the past two months, Martha has taken unplanned, intermittent leave on three consecutive Fridays allegedly due to her migraine headaches. Martha's employer notices the pattern of her absences and is concerned that each absence has occurred on a Friday. Martha may be engaging in FMLA fraud.

Practical Example

John is on FMLA leave for a bad back. Another employee, Michael, saw pictures on John's Facebook page of John participating in a bowling tournament the previous night. Michael reported this to HR. Based on the information that John has engaged in activity that is not consistent with the limitations of his serious health condition, HR launches an investigation to determine whether John is fraudulently using FMLA leave.

What Is FMLA Abuse?

FMLA abuse occurs when an employee has appropriately and legitimately obtained FMLA leave, and then uses the excuse of the FMLA to benefit the employee inappropriately. Examples of FMLA abuse include:

  • Unnecessarily taking time off from work;
  • Trying to manipulate or change the employee's work schedule;
  • Scheduling time off from work for FMLA purposes to provide more time off from work;
  • Scheduling time off from work for FMLA purposes to avoid performing certain jobs or tasks at work; or
  • Claiming the need for FMLA time off to avoid discipline.

Moonlighting While on FMLA Leave

The FMLA does not prohibit an employee from working in another job while on an FMLA leave. Under the FMLA, an employer may enforce a policy prohibiting any employee from working for someone else while on the employer's payroll during:

  • The employer's core business hours; or
  • Any hours that might interfere with the employee's ability to get work done for the employer.

An employer may also impose and enforce a policy prohibiting any employee on any type of an unpaid leave of absence, for any reason, from engaging in other employment during hours the employee would normally have been working for the employer. +29 C.F.R. § 825.216 (e). However, an employer may not treat those on FMLA leave differently than those on other types of unpaid leaves of absence with respect to work during a leave. To do so would constitute inference with FMLA rights. Moreover, an employer should be aware that some state laws may prohibit an employer from maintaining any policy that would limit an employee's right to hold a second job. See State Requirements; Employee Leaves > Other Leaves > State Requirements.

If an employer discovers that one of its employees on FMLA leave is working for another employer, the employer should:

  • Immediately speak with the employee and advise the employee that it is aware of the other job;
  • Request that the employee provide a copy of the job description for the other job; and
  • Review the job description against the employee's FMLA certification to see if the employee is medically restricted from doing the second job

If an employer is not sure if the employee is medically restricted from performing the second job, it should be able to request recertification of the employee's serious health condition based upon either changed circumstances or the fact that doubt has been cast on the validity of the certification. Further, the employer should also provide the health care provider with the job description and/or a history of the employee's absence pattern to determine if FMLA fraud or abuse is occurring. See Requesting Certification of the Need for Leave.

Strategies to Combat FMLA Fraud and Abuse

Surveillance

The FMLA does not prohibit an employer from conducting surveillance of an employee whom the employer honestly suspects is using FMLA leave for something other than its intended purpose. However, an employer who conducts surveillance and terminates an employee for engaging in off-duty activity that is consistent with the limitations caused by the employee's serious health condition runs the risk of being charged with FMLA interference. An employer can also be sued for harassment and intimidation. See Actions Prohibited by the FMLA. See also Employee Management > Employee Privacy.

Accordingly, surveillance should always be an employer's last resort option. If an employer chooses to engage in surveillance, it should:

  • Ensure it has a reasonable basis (more than just a hunch) for suspecting the employee's abuse/fraud; and then
  • Hire a competent, experienced third-party to do the work rather than relying on its own personnel to engage in surveillance.

Effective Use of Certifications

Ensuring certifications are complete and sufficient before finally approving FMLA leave, particularly in the case of intermittent leaves, can help an employer effectively monitor leaves and avoid fraud and abuse. An employer should also avoid assuming an employee is eligible for FMLA leave and make sure the employee meets all the eligibility requirements. See Determining Employee Eligibility for FMLA Leave.

In the case of military exigency leaves, an employer may verify covered active duty orders and certifications of need for military exigency leaves by contacting individuals or entities with whom the employee is planning to meet to verify that meetings have been scheduled and the nature of such meetings. An employer may also contact the appropriate unit of the Department of Defense to verify that a servicemember is on covered active duty or called to covered active duty status. The employer need not obtain the employee's permission to seek either type of verification.

In the case of serious health condition leave, an employer should not accept certifications that are incomplete and not sufficient. Complete means completely filled in. Sufficient means clear enough for the employer to understand the medical necessity for the leave. If a certification is not complete and sufficient, an employer must give the employee written notice designating what portions are incomplete or unclear and providing seven days for the employee to cure the deficiencies.

After an employer has given an employee the opportunity to cure deficiencies in a certification, it has two options:

  • First, if it doubts the authenticity of the certification, it may, without the employee's permission, give the health care provider who purportedly signed the certification a copy of the certification and ask whether the health care provider actually completed the certification. This authentication request must come from HR, a leave administrator or a manager who is not the employee's direct supervisor, and the requestor may not ask any questions of the health care provider other than whether the health care provider actually completed the form.
  • Second, if an employer cannot read the handwriting on a certification or does not understand what a health care provider means by a particular comment, it may, with the employee's express permission, seek clarification from the health care provider. The request for "clarification" may not come from the employee's immediate supervisor and it must not seek additional information beyond what the certification form requires. See Requesting Certification of the Need for Leave.

In the intermittent leave context, an employer should politely persist in seeking estimatesof the likely frequency of flare-ups of serious health conditions so as to be better able to gauge whether employees are appropriately using intermittent leave. This is done through question seven on the Certification of Health Care Provider for Employee's Serious Health Condition form (WH-380E). If an employee is not taking leave consistent with their medical certification, an employer should not make any exceptions, even in an act of compassion.

An employer should also consider seeking a second, and when necessary, a third health care provider's opinion if it truly doubts the validity of a medical certification. Second and third opinions may be expensive and should be used only sparingly. However, if an employer has good reason to believe a certification is invalid, the multiple opinion process may ultimately be less expensive than granting, living with, and later attempting to remedy a fraudulent leave request. See Employer Challenges to Certifications; Manage the FMLA Certification Process.

Practical Example

Mary takes six weeks of FMLA leave for a cancer operation and treatment and gives her employer a medical certification that states that she will be absent for six weeks. Because her certification covers a six-week absence, her employer cannot ask for a recertification during that time. At the end of the six-week period, Mary asks to take two more weeks of FMLA leave; her employer may properly ask Mary for a recertification for the additional two weeks.

Practical Example

Jacob takes eight weeks of FMLA leave for a back operation and intensive therapy, and gives his employer a medical certification that states that he will be absent for eight weeks. At the end of the eight-week period, Jacob tells his employer that he will need to take three days of FMLA leave per month for an indefinite period for additional therapy; his employer may properly request a recertification at that time. Six months later, and in connection with an absence for therapy, the employer may properly ask Jacob for another recertification for his need for FMLA leave.

Periodic Updates on Status

An employer can require an employee to provide periodic updates on his or her status, which includes asking:

  • If the employee intends to return to work; and
  • When the employee intends to return to work.

In addition, staying in periodic contact with an employee provides a clear message to an employee seeking to game the system that the employer is:

  • Doing its homework;
  • Proactively checking his or her status;
  • Tracking his or her use of FMLA time; and
  • Reminding the employee of how much FMLA leave he or she has used and what is remaining.

Strategies to Control Intermittent Leave Abuse

Training Supervisors to Spot Fraud and Abuse

Because supervisors are typically the eyes and ears of the employer, training supervisors on the FMLA is an important step in preventing fraud and abuse. See Employee Management > Training and Development. Such training may include:

  • Helping supervisors to better understand the definition of a serious health condition so that they can spot situations where an employee may actually not have a serious health condition;
  • Ensuring supervisors understand which reasons can trigger the need for FMLA leave and which will not; and
  • Responding appropriately to leave and other time off requests to build a consistent and more equitable process for requesting, considering and administering leave.

Increasing supervisor knowledge of the law, as well as the role they play with FMLA requests, compliance and enforcement can enhance an employer's compliance efforts and help to catch fraud and abuse early.

Scheduling Foreseeable Leave

An employee must make a reasonable effort to schedule planned medical treatment so that the his or her absence does not unduly disrupt the employer's operations. Accordingly, whenever possible, an employer should work with an employee, before a planned treatment starts, to develop a schedule that is less likely to interfere with business operations. For example, treatment might be scheduled at the beginning or end of a shift or on particular days of the week during which an employee's absence is less likely to be problematic. Such schedules will, of course, be subject to the approval of the employee's health care provider. An employer cannot deny leave because an employee is unable to schedule a planned medical treatment at a convenient time; however, an employer can deny leave if an employee does not provide adequate notice of a planned leave and cannot explain why.

Practical Example

Jane needs chemotherapy for skin cancer. The treatment center that she will be going to has availability from 4:00 p.m. - 6:00 p.m. on Wednesdays or Fridays. Jane is a receptionist and while the mail needs to go out every day, it is imperative that the mail be timely sent on Friday afternoons because not doing so would create an extended delay in correspondence due to the weekend. Based on Jane's responsibilities and the options of her receiving treatment on Wednesdays or Fridays, it is reasonable for her employer to request that she schedule her treatments for Wednesday afternoons.

Practical Example

Robert needs dialysis twice a week for five hours at a time. The dialysis clinic that his health care provider is sending him to only has availability for him to receive treatment on Tuesdays and Thursdays from noon until 5:00 p.m., as all of its evening appointments are filled. Robert's employer needs to permit him to receive the dialysis at the clinic that his health care provider is sending him to from noon until 5:00 p.m. on Tuesdays and Thursdays.

Alternatives to Intermittent Leave

If, and only if, an employee needs intermittent or reduced schedule leave for planned medical treatment, an employer can temporarily transfer the employee to an alternative position for which the employee is qualified that would better accommodate the recurring absences. The position to which the employee is temporarily transferred:

  • Must have equivalent pay and benefits;
  • Need not have equivalent duties;
  • May be part-time, but only to the degree that the FMLA-related absences would require a reduction in regular full-time hours;
  • May not be designed to discourage the employee from taking leave or impose a hardship on the employee (e.g., forcing an employee who normally works days to work third shift); and
  • Must allow the employee to be fully reinstated to his or her original position once the need for leave for planned medical treatment is over.

An employer may not involuntarily transfer an employee to another position because the employee's sporadic use of intermittent leave for reasons other than planned medical treatment is disruptive to the employer's business. See Temporary Transfer of Employee on Intermittent or Reduced Schedule Leave.

An employer also may not alter an position so as to prevent or discourage an employee from gaining the benefit of FMLA intermittent leave (e.g., transform an employee's position from a full-time position with benefits to a part-time position without benefits after the employee requests intermittent leave).

Track Patterns of Intermittent Leave Usage

An employer can make great strides toward curtailing FMLA fraud and abuse simply by carefully tracking patterns of employees' intermittent leave usage and seeking recertification of medical necessity when things look odd. Because evidence of a pattern of leave usage is typically considered circumstantial evidence, an employer should track usage over a long period of time to demonstrate the pattern is not coincidental.

An employee may develop a pattern of using FMLA intermittent leave primarily on Fridays or Mondays or only before particularly significant deadlines. Alternatively, an employee might start using larger increments of leave or using leave significantly more frequently than the employee's health care provider originally estimated would be necessary. Either of these sorts of changed circumstances is sufficient to trigger a request for recertification in fewer than 30 days. See Requesting Certification of the Need for Leave. Recertification must, however, be sought only in connection with an absence.

By timely seeking recertification, the employer puts the employee on notice that it is scrutinizing leave usage. For these reasons, seeking recertification when circumstances warrant may serve as an effective fraud deterrent.

Communicating With Health Care Provider Regarding Intermittent Leave Usage

When an employer seeks recertification, it may not seek medical information beyond that requested on the Certification of Health Care Provider for Employee's Serious Health Condition form (WH-380E). However, an employer may provide the health care provider a copy of an employee's attendance records and ask if the employee's serious health condition and need for leave is consistent with this absence pattern. If the health care provider says "no," the employer can terminate the employee or discipline the employee.

Of course, the employer may only submit a recertification request and absence record directly to a health care provider if it has the employee's express permission to communicate with the health care provider about matters other than authentication of a certification. It can, however, require an employee to take a cover letter containing the additional request and information about the absence pattern to the employee's health care provider along with the certification form. An employer should require that any recertification be complete and sufficient just like the initial certification. See Requesting Certification of the Need for Leave.

An employer cannot:

  • Ask a health care provider to verify that an employee saw the health care provider on listed dates or that the employee's absences on particular days resulted from the serious health condition for which the health care provider certified the leave; or
  • Require that an employee visit a health care provider or obtain a doctor's note for every incident of intermittent leave.

An employer has the right to seek a new certification of intermittent leave if the employee needs to continue the leave beyond the leave year in which the health care provider originally certified it. Seeking this new certification each leave year is particularly important for employees who are suspected of abusing intermittent leave. The new certification reopens the opportunity to seek a second and third opinion and provides an opportunity to ask not only the employee's original health care provider, but also the health care providers providing the second and third opinion, whether the employee's serious health condition and need for leave are consistent with the employee's absence pattern.

Enforcement of Call-In Procedures

An employer may require any employee who is absent due to unforeseeable FMLA leave to report the employee's need for leave in accordance with the employer's usual and customary call-in procedures, absent unusual circumstances preventing an employee from doing so.

So long an employer treats employees using unplanned intermittent FMLA leave the same as it treats others who are absent for other unplanned reasons, the employer may enforce a call-in policy that places restrictions on:

  • The timing of a call (e.g., one hour before scheduled start);
  • The manner of a call (e.g., must call a particular person); and/or
  • The reason for a call.

If procedures are in place to report the reason for absence, and an employee simply calls in "sick," the employer is not required to treat the time as FMLA leave. However, if an employee fails to comply with an attendance reporting procedure, the employer should be careful to inquire why the failure occurred before acting so as to be sure that the failure to call was the result of the employee's negligence rather than the result of unusual circumstances beyond the employee's control.

FMLA Interplay

The FMLA regulations and guidance offered by the Department of Labor (DOL) provide fairly specific rules to follow in the administration of FMLA leave. Although these rules govern how the FMLA leave itself should work, they do not cover all of the other - and often concurrent - employment-related obligations that employers may have. Most commonly, this intersection of rights has been referred to in publications and presentations as "The Bermuda Triangle," and typically includes a discussion of FMLA, the ADA and workers' compensation laws.

Importantly, however, the overlaps are far more extensive than this "triangle" suggests. For a thorough discussion of the FMLA's interplay with state and federal law, including a summary of the many questions and issues that arise under various employment laws and obligations when employees seek, take and return from FMLA-type leaves, please see The FMLA's Interaction With Other State and Federal Laws and The Bermuda Triangle Has Expanded: The FMLA's Intersection with the ADA, Workers' Compensation and More.

FMLA Recordkeeping Requirements

The FMLA requires that an employer make, keep and preserve records concerning compliance with the FMLA consistent with the employer's recordkeeping requirements under the FLSA and the FMLA regulations. The FMLA limits the Department of Labor's (DOL) authority to require production of books or records to once during a 12-month period, unless the DOL has reasonable cause to believe a violation of the FMLA has occurred or the DOL is investigating a complaint. However, the employer may be entitled to demand a subpoena before it is obligated to provide records to the DOL. +29 C.F.R. § 825.500 (a).

Types of Records to Keep

The FMLA requires an employer to maintain specific information and to keep such information in its records as follows:

  • Basic payroll and any identifying data (name, address and occupation), rate or basis of pay and terms of compensation, daily and weekly hours worked per pay period, additions to or deduction from wages and total compensation paid;
  • Dates FMLA leave is taken by the employee;
  • If leave is taken in increments of less than one full day, the hours of leave;
  • Copies of the employee notices of leave furnished to the employer under the FMLA, if in writing, and copies of all written notices given to the employee by the employer;
  • Documents (written or electronic) describing employee benefits or employer policies and practices regarding the taking of paid and unpaid leave;
  • Premium payments of employee benefits; and
  • Records of any dispute between the employer and employee regarding designation of leave as FMLA leave, including any written statements by the employer or the employee concerning the reasons for the designation and disagreement. +29 C.F.R. § 825.500 (c).

Covered employers of airline flight crew employees are required to maintain additional records: 1) records and documents containing information specifying the applicable monthly guarantee for each category of employee to whom such guarantee applies, including any relevant collective bargaining agreement or employer polices; and 2) records of hours worked and hours paid as those terms are defined in +29 C.F.R. § 825.800 (b)(2); +29 C.F.R. § 825.803. (b).

Time Period Required to Maintain Certain Records

An employer must keep the required records for no less than three years. An employer must also make the records available upon request for inspection, copying and transcription by the DOL. +29 C.F.R. § 825.500 (b).

Method of Retention

Records are not required to be kept is a specific form or order. An employer is not required to revise its computerized payroll or personnel records systems to comply with the FMLA regulations. The records may be maintained on microfilm or electronically as long as viewing is possible, any requested copies are clear and can be identified by date or pay period and transcription of the information will be made available upon request. +29 C.F.R. § 825.500 (b).

Maintenance of Personnel Files

The employer may keep copies of the FMLA Eligibility Notice and Rights and Responsibilities Notice provided to the employee in the employee's personnel file. +29 C.F.R. § 825.500 (b)(4). 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.

Confidentiality - Employee Privacy Concerns

The FMLA requires that records and documents created for FMLA purposes must be kept in confidential medical files separate from personnel files. +29 C.F.R. § 825.500 (g).

Examples of such records and documents:

  • FMLA certifications and/or recertifications of health care provider;
  • Fitness-for-duty forms;
  • Birth certificates and other documentation for leave due to the birth, adoption or foster placement of an employee's child;
  • Documentation of familial relationships;
  • Reports of injury/illness and status reports following workers' compensation injuries; and
  • Medical histories of the employee or employee's family.

ADA

Like the FMLA, the ADA requires that records containing an employee's medical information are kept confidential and separate from personnel files. The ADA also requires that only those employees with a need to know have access to the medical information.

The EEOC recommends that an employer store the medical files in a secure, locked location, and that only certain persons within the organization be provided with the means to access the files. It is recommended that medical information related to FMLA requests be stored in a manner that is consistent with both the FMLA's and ADA's requirements.

HIPAA

On its face, the scope of health information protected by the Health Insurance Portability and Accounting Act (HIPAA) Privacy Rule appears to encompass all employee health information. The HIPAA Privacy Rule defines protected health information (PHI) to include, among other things, all information related to the past, present or future health status of an identified individual and to treatment received by an identified individual. See Employee Benefits > Health Information and Privacy (HIPAA).

For employers, there is a very important exception to this definition: health information is not PHI unless it was created or received by the employer in its capacity as a "health plan" or covered "health care provider."

In the context of the FMLA, it is important for an employer to understand that the information it requests from a health care provider is covered by HIPAA's privacy rules (i.e., the health care provider's disclosure of the protected health information is covered by HIPAA's rules), but it as an employer receiving the information is not.

HIPAA Privacy Rules Do Not Apply to an Employer's Retention of Health Information Received in the FMLA Process

Generally, when an employer - in its capacity as an employer - is requesting or reviewing the following medical information, the medical information is considered an employment record that is not covered by the HIPAA Privacy Rule:

  • Medical information required by an employer to carry out its obligations under the ADA, the FMLA and other laws;
  • Files containing information about occupational injuries, disability insurance eligibility, sick leave requests and justifications; and
  • Drug screening results, workplace medical surveillance and fitness-for-duty tests for employees.

The most important question when assessing whether health information is an employment record that is notsubject to the HIPAA Privacy Rule is the role the employer played when it created or received the information. If the employer received health information, for example, as part of the FMLA certification process, that record would not be subject to HIPAA's Privacy Rule.

HIPAA Privacy Rules Do Apply To the Health Care Provider Who May Be Asked to Provide Protected Health Information to the Employer During the FMLA Process

The FMLA provides procedural safeguards to ensure compliance with HIPAA's Privacy Rule as applicable to the health care provider. Specifically, the requirements of the HIPAA Privacy Rule must be satisfied for a health care provider to share protected health information of an employee with his or her employer for FMLA certification purposes. +29 C.F.R. § 825.307 (c). See also Employer Challenges to Certifications.

GINA

The Genetic Information Nondiscrimination Act (GINA) prohibits discrimination in employment based on genetic information and family medical history. GINA also restricts employers from acquiring or sharing such information. While gathering information related to the administration of an FMLA leave, an employer should take steps to ensure that GINA obligations are met. +29 C.F.R. § 825.500(g).

To comply with GINA restrictions:

  • An employer should ensure that the FMLA health care provider certification forms pertaining to the employee's own serious health condition or the serious health condition of the employee's family member include appropriate GINA safe harbor language;
  • Records and documents created for FMLA purposes that contain family medical history or genetic information as defined by GINA must be maintained in accordance with the confidentiality requirements of GINA. +29 C.F.R. § 1635.9 ; and
  • All employee medical information must be kept in separate, locked files, away from personnel information and only shared on a need-to-know basis. See Employee Management > EEO - Discrimination > Genetic Information - Genetic Information Nondiscrimination Act.

OSH Act

The Occupational Safety and Health Act (OSH Act) requires an employer to record work-related injuries and illnesses on Occupational Safety and Health Administration (OSHA) Forms 300 and 300A. See HR and Workplace Safety (OSHA Compliance) > Recordkeeping Requirements. FMLA confidentiality requirements prevent an employer from reviewing FMLA leave request documentation for purposes of OSHA recordkeeping, according to an Occupational Safety and Health Review Commission ruling. An employer is not obligated to review such FMLA information to determine if it is required to be recorded on OSHA's recordkeeping forms. See Secretary of Labor v. United States Postal Service, +2014 OSAHRC Lexis 56 (September 29, 2014).

Confidential Files

An employer should maintain all employee medical information, including, but not limited to, FMLA paperwork, in separate, locked files, only providing access to those employees with a need-to-know, which is consistent with ADA requirements and in line with the FMLA.

Who Can See the Records?

Information concerning the medical condition or history of any employee gathered for FMLA purposes must be maintained on separate forms and kept in separate medical files and treated as confidential medical records, except that under the FMLA:

  • Supervisors or managers may be informed regarding the necessary work restrictions of the employee and necessary accommodations;
  • First-aid and safety personnel may be informed when the employee's physical or medical condition might require emergency treatment; and
  • Government officials investigating FMLA compliance will be given relevant information upon request. +29 C.F.R. § 825.500 (g); +29 C.F.R. § 1630.14 (c)(1).

When permitting personnel to review medical information for FMLA purposes, an employer should also make sure that the disclosure is consistent with its obligations under the ADA and GINA. See The Bermuda Triangle Has Expanded: The FMLA's Intersection With the ADA, Workers' Compensation and More - Legal Insight.

Employer's Records Retention Policy

An employer should consider establishing a record retention policy that has a well-defined retention schedule for identifying and maintaining records and that is consistent with the recordkeeping requirements of the FMLA, along with all other applicable employment-related laws. The policy should take into account the employer's need to retain the records for, among other things:

  • Compliance with record-keeping regulations;
  • Historical review;
  • Administrative and litigation claims; and,
  • Governmental inquiries.

The policy should also establish a systematic procedure for record destruction, keeping in mind the period for which the records are:

  • Necessary to conduct the business;
  • Required to be kept by statute or government regulations; and
  • Relevant to pending or foreseeable governmental investigations, administrative charge proceedings or litigation.

See Employee Management > Recordkeeping; HR Strategy, Management and the Law > Labor and Employment Law Overview.

Actions Prohibited By the FMLA

Interference

The FMLA forbids interference with an employee's rights under the law and with legal proceedings relating to an employee's rights. +29 C.F.R. § 825.220 . The scope of what constitutes interference under the FMLA includes what is commonly known as retaliation under other statutes as well as other prohibited actions. See Employee Management > EEO - Retaliation.

An employer may not:

  • Interfere with the efforts of employees to exercise their rights under the FMLA;
  • 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.

All persons - whether employers or not - are prohibited from terminating or discriminating against any person - whether or not an employee - because that person:

  • Filed (or asked someone else to file) any charge related to the FMLA;
  • Gave (or is about to give) any information in connection with a proceeding or inquiry under the FMLA;
  • Testified (or is about to testify) in any inquiry or proceeding relating to an FMLA right; or
  • Opposed or complained about an unlawful practice under the FMLA.

Interference with rights under the FMLA includes:

  • Refusing to grant a proper request for FMLA leave;
  • Discouraging an employee from using FMLA leave;
  • Not providing the same benefits to employees on unpaid FMLA leave as are provided to employees on unpaid non-FMLA leave;
  • Using the fact that an employee took FMLA leave as a negative factor when making decisions about hiring, promotions or disciplinary actions;
  • Counting FMLA leave under "no fault" attendance policies;
  • Manipulating circumstances to avoid responsibilities under the FMLA;
  • Not giving a pay raise to an employee on FMLA leave who otherwise would have received a raise;
  • Disciplining or terminating an employee for taking FMLA leave; and
  • Any violation of the FMLA or the DOL's regulations.

Examples of unlawful manipulation to avoid responsibilities under the FMLA include:

  • Transferring employees from one worksite to another to avoid the 50-employee coverage threshold;
  • Changing essential functions of the job in order to prevent employees from taking leave; and
  • Reducing hours of work to avoid employee eligibility.

Elements of a FMLA Interference Claim

As the DOL's regulations indicate, any violation of the FMLA or the regulations could form the basis of a claim for interference. Some of the more common ways that an employee might establish a claim include proving that:

  • He or she was entitled to take FMLA leave;
  • He or she gave proper notice of the need for FMLA leave;
  • The employer's adverse action (e.g., counting FMLA leave under no fault attendance policy) interfered with his or her FMLA rights; and
  • The employer's action was connected to his or her exercise or attempt to exercise his or her FMLA rights.

If an employee presents evidence to support the claim of a violation, an employer can help defeat such claims by presenting evidence that it had a legitimate business reason for taking the adverse action. If an employer provides this evidence, the employee must then present proof that the employer's stated reason was simply a guise or pretext for unlawful interference (retaliation) based on the employee's use of or request for FMLA leave. For more information on retaliation, generally, see Employee Management > EEO - Retaliation.

To help prevent an employee from bringing an interference claim, an employer should:

  • Be consistent in determining an employee's eligibility for FMLA leave;
  • Have a policy or practice in place for bringing verbal and written FMLA requests to the attention of HR or a designated person;
  • Ensure that supervisors and managers are properly trained to recognize an employee's request for FMLA leave (and to know who to tell about the request);
  • Think carefully before forcing an employee to take FMLA leave (because an employee forced to take leave can later claim he or she was prevented from taking leave at another time when he or she needed/wanted to);
  • Be careful of the timing of any adverse action against an employee who has requested or is on FMLA leave;
  • Be careful of what managers, supervisors, HR or others put in email when communicating with employees about their requests for, or issues relating to, FMLA leave;
  • Have clear and concise written documentation supporting the need for any adverse action against an employee who has requested or is on FMLA leave (e.g., manager's detailed notes on performance issues, objective company data);
  • Consult with employment counsel before terminating an employee on FMLA leave or seeking FMLA leave;
  • Enforce all policies and practices consistently (that is, do not treat an employee on FMLA leave differently or less favorably than an employee on another type of leave);
  • Follow the rules governing requests for medical certifications; and
  • Take care when assigning employees to light duty or making transfers to avoid any appearance of retaliation.

See Organizational Exit > Involuntary Terminations > Terminating Employees on FMLA Leave or Returning From FMLA Leave.

Individual Liability

Individuals may be held liable under the FMLA if they are an employer, which is defined as encompassing any person who directly or indirectly acts in the interest of an employer to any employees of that employer. Therefore, corporate officers and even lower-level supervisors may be held individually liable for violations of the FMLA if they are acting in the interest of an employer in connection with the violation. See FMLA Employer Coverage.

A decision by the 2nd Circuit Court of Appeals, which covers Connecticut, New York and Vermont, shows how an HR director may be held liable for mishandling an employee's FMLA leave request. In Graziadio v. Culinary Inst. of America, +2016 U.S. App. LEXIS 4861 (2d Cir. 2016), a payroll administrator twice took FMLA leave to care for her sons. Her employer was not satisfied with the medical paperwork the employee provided, but did not respond to her repeated queries about what documentation was needed before she could return to work. The employer's HR director engaged in lengthy but unproductive communications with the employee about this paperwork, and the employee was eventually terminated for abandoning her position. The court determined that because the HR director played an important role in the decision to fire the employee and exercised significant control over the employee's schedule and employment conditions, at least with respect to her return from FMLA leave, the HR director could be individually liable as an employer under the FMLA.

While this decision applies only to employers in Connecticut, New York and Vermont, other courts may consider it when evaluating the issue.

Waiver and Release of FMLA Rights

The FMLA does not permit an employee to waive his or her future rights under the law. It also prohibits a union, during collective bargaining, to waive the future rights of the employees it represents. See Labor Relations > Collective Bargaining Process. Neither an individual nor a union can decide to "trade-off" future FMLA rights for some other benefit.

An employee may choose to accept a light-duty assignment while recovering from a serious health condition. The choice must be voluntary and an employer may not make it a condition of continued employment. Voluntarily agreeing to a light-duty placement does not waive an employee's right to return to the same position he or she held before beginning the leave of absence (or an equivalent position). However, the employee's right to be restored to the pre-leave position ends with the end of the 12-month FMLA year.

Enforcement Rights

An employee may file a complaint with the Secretary of Labor or file a lawsuit for a violation of the FMLA.

Filing a FMLA Complaint With the Secretary of Labor

An individual may file a complaint in person, by mail or by phone with the US Department of Labor, Wage and Hour Division, Employment Standards Administration. The Wage and Hour Division administers and enforces the FMLA with respect to all private, state and local government employers. An individual may also ask another person to file a complaint on his or her behalf with the Secretary.

A complaint must be filed within two years after the last action that someone believes was a violation of the FMLA. If the individual claims a willful violation by the defendant, he or she may file a complaint within three years after the last violation.

Complaints may be filed at any local office of the Wage and Hour Division. The address and phone numbers of offices can be found in local telephone directories or on the Department's website.

There is no particular form required for filing a complaint with the Wage and Hour Division. No matter how the complaint is originally reported, it must be reduced to writing.

The Wage and Hour Division will investigate the complaint and will attempt to resolve the dispute. The Division may file a lawsuit to enforce the complaining individual's rights under the FMLA.

Even if there are no known complaints, an employer should be prepared for an FMLA investigation - which may include the Division making an on-site visit - by taking these steps:

  • Check that the FMLA poster is displayed as required;
  • Review its FMLA policy to ensure it is accurate and up-to-date;
  • Audit FMLA procedures in practice. Just because the policy may pass the Division's scrutiny does not necessarily mean that individual leave requests are being handled properly;
  • Review FMLA paperwork for compliance, including eligibility notices, medical certification forms and any correspondence with individual employees regarding FMLA leave. Make sure records that the investigator may request (e.g., payroll and attendance records) are accessible; and
  • Ensure that managers and supervisors are properly trained on the FMLA. On-site investigations may include interviews with managers (and employees).

Private Lawsuit Under the FMLA

Individuals may file lawsuits in court claiming violations of the FMLA. Generally, lawsuits must be filed within two years after the last action the individual believes was a violation of the FMLA. If the lawsuit claims that the FMLA violation was willful (i.e., intentional), it may be filed within three years after the last violation.

Individuals may decide to settle or release a claim for a past violation of their FMLA rights without any need for approval by the Department of Labor or a court. +29 C.F.R. § 825.220(d). However, an employee may not validly release a claim for prospective FMLA rights. The 11th Circuit has defined prospective rights under the FMLA as "those allowing an employee to invoke FMLA protections at some unspecified time in the future." See Paylor v. Hartford Fire Ins. Co., +2014 U.S. App. LEXIS 6402 (11th Cir. April 8, 2014). Thus, an employer may not offer employees a monetary or other incentive in exchange for a release or waiver of future claims for FMLA violations. An employer should consult with legal counsel before asking a prospective or current employee to sign any release or waiver of claims.

Relief Available for Prevailing FMLA Litigants

An individual who proves a violation of FMLA rights may recover various remedies if justified by the facts.

Monetary Relief

  • Wages;
  • Employment benefits and other compensation denied to or lost by the employee as a result of a violation of the FMLA;
  • Any money lost by the employee as a direct result of the violation;
  • Interest;
  • Reasonable attorney fees;
  • Reasonable expert witness fees; and/or
  • Costs of pursuing the case (these include court filing fees, costs of depositions and similar legal expenses).

See also Payroll > Taxation of Employee Compensation > FMLA Damages.

Liquidated Damages and an Employer's Good-Faith Defense

In addition to actual losses, the court may also award an additional amount of money equal to the individual's lost wages and benefits, any money lost by the individual as a direct result of the violation, and interest as liquidated damages for the violation. The court may reduce or refuse to award liquidated damages if the employer proves that, in good faith, it did not believe its conduct was a violation of the FMLA and that it had reasonable grounds for that belief.

Equitable Relief

Courts may award relief other than money for violations of the FMLA. Generally, such nonmonetary relief is called equitable relief. It includes court orders:

  • To hire an applicant rejected for employment;
  • To reinstate an employee who was fired in violation of the FMLA; and/or
  • To promote an employee.

Practical Example

Janice requests leave to care for a family member with a serious health condition. Her employer, Acme Telemarketing, improperly denies her FMLA leave. Janice stays on the job and hires someone to care for the family member. Janice may recover for the cost of hiring someone to provide care for the family member. The amount recovered can be equivalent to up to 26 weeks of Janice's wages if the family member was a covered servicemember. If the family member was not a covered servicemember, Janice can recover up to 12 weeks' worth of her pay. Janice could also recover for interest on that money, and for attorney fees and costs (expenses) she had to pay to pursue her lawsuit.

Practical Example

Julian requests leave to care for a family member with a serious health condition. His employer, Acme Retail, improperly denies him leave and Julian takes the time off anyway. Acme Retail then fires Julian. If Julian sues Acme, the court might order Acme to reinstate him to his former job. Julian may also recover for 12 weeks of lost pay if the family member was not a covered servicemember. Julian may also recover for any lost benefits, which could include the cost of providing alternate health care insurance or the cost of treatment that would have been covered by Acme Retail's policy. Julian could recover interest on lost wages or other losses, reasonable attorney fees, expert witness fees and court costs.

Violations of Posting Requirements

The FMLA requires an employer to post a notice at the workplace explaining the Act's provisions. See General Notice Posting Requirements. If the Department of Labor concludes that an employer willfully failed to post the required notice it can issue a civil money penalty by serving a notice on the employer. The notice may be served in person or by certified mail. If the certified mail is not accepted, notice may be sent by regular mail.

An employer may ask for review of the penalty by filing a written petition with the Wage and Hour Regional Administrator. No particular format is required. The petition must be mailed to the Regional Administrator within 15 days of receipt of the notice of penalty. The employer may request a hearing, which may be conducted by telephone.

If the employer does not seek review, or if the request is late, the notice of penalty constitutes the final order of the Secretary of Labor. The decision of the Regional Administrator after a review is the equivalent of the final order of the Secretary of Labor.

Executive Order 13706 mandates paid sick leave for employees of federal contractors. Beginning January 1, 2017, new contracts must provide for employees to earn at least one hour of paid sick leave for every 30 hours worked. Covered contracts include:

  • A procurement contract for construction covered by the Davis-Bacon Act;
  • A contract for services covered by the Service Contract Act;
  • A contract for concessions, including any concessions contract excluded by Department of Labor regulations; or
  • A contract or contract-like instrument with the federal government in connection with federal property or lands and related to offering services for federal employees, their dependents or the general public, and the wages of employees under these contracts are covered by the Davis-Bacon Act, the Service Contract Act or the Fair Labor Standards Act (FLSA), including employees who are exempt from the FLSA's minimum wage and overtime provisions.

Thus, private sector entities that enter into new federal contracts may be subject to the Executive Order.

An employee may accrue up to seven days (56 hours) of paid sick leave per year to use for their own or a family member's physical or mental illness, injury or medical condition or need for diagnosis, care or preventive care from a health care provider, as well as for absences resulting from domestic violence, sexual assault or stalking.

Eligible family members include:

  • Children;
  • Parents;
  • Spouses;
  • Domestic partners; and
  • Any other individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship.

The Executive Order does not supersede any applicable federal or state law or collective bargaining agreement that provides greater paid leave rights than those provided for in the order.

The Department of Labor issued implementing regulations in September 2016.

For more information on this Executive Order, including carryover, notice and certification requirements, please see Employee Leaves > Other Leaves: Federal.

Future Developments

There are no developments to report at this time. Continue to check XpertHR regularly for the latest information on this and other topics.

Additional Resources

The FMLA's Interaction With Other State and Federal Laws

The Bermuda Triangle Has Expanded: The FMLA's Intersection With the ADA, Workers' Compensation and More - Legal Insight

HIPAA Authorization for Release of Information to [Employer] For Family Medical Leave Act (FMLA) Purposes Only

Employee Management > Disabilities (ADA) > ADA Interplay

Employee Leaves > USERRA > USERRA Interplay

Family and Medical Leave Policy

Leave Laws by State

DOL's Wage and Hour Division

DOL's FMLA Page and Resources

DOL's Opinion Letters

FAQs Regarding the Final Rule to Implement Statutory Amendments to the FMLA

DOL's Side-by-Side Comparison of Current FMLA/Final Regulations

DOL PowerPoint on the FMLA