Family and Medical Leave Act FAQs

By Michael L. Fortney


Overview of the Family and Medical Leave Act

The Family and Medical Leave Act was:
  • signed into law in 1993 by President Clinton;
  • enacted so that employees of larger employers could get time off work to attend to serious family illnesses, child birth and adoption without  losing their jobs;
  • requires covered employers to return eligible employees to return to the same or substantially equivalent job when returning from an FMLA covered leave.

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Am I eligible for family or medical leave?

To be eligible for FMLA leave an employee :

  • must work for an employer with 50 or more employees in the current or preceding year;
  • must have been employed at least 12 months and worked in excess of 1,250 hours in the previous 12 month period; and
  • not have taken more than 12 weeks of FMLA designated leave during the preceding 12 month period.

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What kinds of absences qualify for FMLA leave?

An employee can take leave for:
  • The birth of a child;
  • The placement of a child for adoption or foster care.
  • The care of a spouse, child, or parent ("family member") who has a serious health condition;
  • The employee's own serious health condition that makes the employee unable to perform the functions of the employee's position; or
  • A qualifying exigency arising out of a family member's active duty in the Armed Forces.

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Is Family and Medical leave paid?

No. However, the employee can elect to use, or the employer may require the employee to use, available vacation, sick time or other paid time off.

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Must an employer provide benefits to an employee on Family and Medical Leave?

Your employer must continue an employee's coverage under its health insurance plan while the employee is on leave. However, the employee must pay his or her share of the premium (if any) during the leave. If the employee fails to make timely payments of his or her share of the health insurance premiums for more than 30 days, the employer does not have to maintain the employee's health insurance while on leave.

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Does the Family and Medical Leave Act require restoring the employee to the same job?

It depends on the employee, the availability of a equivalent position and whether or not the employee would have lost his or her position during the leave without regard to taking leave.

Key employees (employees in the top 10 of the employer's earners) do not have the right to return to their old jobs if "substantial and grievous injury results to employer to do so." However, an employer must notify the key employee before he or she takes leave that it will not restore the employee to his or her former position.

Other than "key employees," an employer must restore all other employees to the same or equivalent position with equivalent pay, benefits and other terms and conditions of employment. That is, if the employer has an equivalent position available, it can restore the employee to the equivalent position. The term 'equivalent' does not mean merely 'comparable' or 'similar.' Instead, it requires a correspondence to the duties and all other terms, conditions, and privileges of the employee's previous position.

However, an employee has no greater right to reinstatement or to other benefits than he or she would have if he or she had been continuously employed during the leave. For example, if an employer would have laid off an employee who was out on Family and Medical Leave, the employee does not have an FMLA right to restoration at the end of the leave, unless and until the employer recalls the employee from the layoff. 

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What notice must I give before taking leave?

An employee must give at least 30 days notice before leave, if possible. If this is not possible, the employee must give notice as soon as is practicable.  

You do not have to ask for FMLA leave by name.  However, you need to tell your employer enough about your need for leave to let your employer figure out that the reason you need leave is covered by the FMLA. 

An exception to this rule arises after you have taken leave for an FMLA qualifying reason. If an employee wants to take additional leave for a previously approved reason, the employee must request Family and Medical Leave by name.

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What notice must my employer give me before charging time off from work against my FMLA time?

FMLA regulations adopted in 2008 require four separate types of Employer notices:

  1. “General notice,” which means the poster listing employees’ FMLA rights, plus a new a requirement to notify employees separately of their FMLA rights in writing in an employee handbook or otherwise “upon hiring.”
  2. “Eligibility notice” when an employee requests leave, or when the employer identifies a potential FMLA-qualifying leave.  The employer must notify the employee of his or her FMLA eligibility status within 5 business days. If the employee is not eligible for FMLA leave, the notice must state at least one reason why the employee is not eligible. Eligibility notice may be provided orally or in writing.
  3. “Designation notice” in writing within five days after obtaining sufficient information to know whether a given absence is FMLA-qualifying or not. If leave is granted, the designation notice must:
    1.  include any “fitness-for-duty” certification required by the employer and
    2. specifically inform the employee of the amount of leave – “hours, days or weeks” – that will be deducted as a result of the leave
  4. “Rights and responsibilities notice” to employees who take leave, in writing, detailing the employer’s expectations and any consequences of the employee’s failure to meet these expectations under the FMLA. The rights and responsibilities notice must include:
    1. an explanation that if FMLA leave is granted it will be deducted from the employee’s 12-week allowance,
    2. requirements for employees to submit medical certifications and the consequences for failing to do so,
    3. employer requirements for using or substituting other paid leave for FLMA leave
    4. employee obligations for maintaining health benefits during FMLA leave, such as paying premiums,
    5. key employee status, if applicable,
    6. employee rights, including health insurance benefits and job restoration and
    7. the employee’s potential liability for unpaid health insurance premiums if the employee fails to return to work following leave. 29 CFR § 825.300(c).

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What is "intermittent" leave?

Intermittent leave is time off from work on an occasional basis, as opposed to entire days at a time.  An employee's doctor must certify that the employee needs to take occasional time off in order for the employee to qualify for it.

Employees can qualify for intermittent leave where they or their family member's condition is intermittent and where they are needed only intermittently. This could be the case, for example, where other care is normally available or where responsibilities are shared with other family members or third parties, but an employee must still be available in emergencies.

Intermittent or reduced schedule leave may be taken for:

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

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What is a serious health condition?

A 'serious health condition' is an illness, injury, impairment, or physical or mental condition that involves inpatient care in a hospital, hospice, or residential medical care facility, or continuing treatment by a health care provider.

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

The standard for an employee's own serious health condition is higher than that for a family member's serious health condition. Specifically, an employee may take leave to care for a family member who merely has a serious health condition.  The employee's own health condition must be such that he or she is unable to perform the functions of the position.

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Do I have to give a doctor's excuse?

Yes, or more specifically, a medical certification of the need for Family and Medical Leave, abut only if the employer's FMLA policy requires employees to obtain one.  Certification may be required at start of leave, during leave, and upon an employee's return after leave. An employer must allow an employee at least 15 days to obtain a certification after making a request for certification.

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What does the doctor's certification have to say?

An employer may ask for a certification that states:

  • the date on which the serious health condition began;
  • its probable duration;
  • the appropriate medical facts within the knowledge of the health care provider regarding the condition; and
  • that the employee is needed to care for a son, daughter, parent, or spouse, with an estimate of the amount of time that the care will require.
  • In the case of intermittent leave or leave on a reduced schedule, your employer can also require your doctor to state:
  • in the case of leave for planned medical treatment, the dates on which the treatment is expected to be given and the treatment's duration;
  • in the case of leave for an employee's own serious health condition, a statement of the medical necessity for an intermittent or reduced schedule leave; and
  • in the case of leave for family members, a statement that this type of leave is necessary for the care of the family member, or will assist in their recovery, and the expected duration and schedule of the intermittent or reduced schedule leave.

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

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

An employer may not request additional information from the employee's health care provider. However, employers may contact an employee's physician directly “[i]f an employee’s serious health condition may also be a disability within the meaning of the Americans with Disabilities Act,” so long as the ADA regulations are observed. 29 CFR § 825.306.An employer may also make direct contact with the employee’s physician to seek “clarification and authentication” of medical certifications. Employers may initiate such contacts only through “a health care provider, a human resources professional, a leave administrator, or a management official.” Under no circumstances may the employee’s direct supervisor contact the employee’s health care provider.

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Can my employer get a second or third opinion?

If an employer has reason to doubt the validity of an employee's Family and Medical Leave certification, the employer may require, at its expense, the opinion of a second health care provider, so long as the health care provider is not regularly employed by the employer. 

If the second opinion differs from the first opinion, the employer may require, at its own expense, the opinion of a third health care provider, designated or approved jointly by the employer and employee. The third health care provider's opinion is final and binding on the employer and employee. The employer and the employee must act in good faith in agreeing on a third opinion provider. In case either fails to act in good faith, they are bound by the earlier opinion--the first health care provider if the employer does not act in good faith or the second health care provider if the employee acts unreasonably.

An employer must provide a copy of any second or third opinions to the employee on the employee's request. These must be provided within two business days unless there are extenuating circumstances.

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Do I have to update my certification?

An employer can require an employee to obtain subsequent recertifications on a reasonable basis. The frequency of recertification depends on the nature of the leave and on other circumstances. However, if the medical certification indicates that the underlying condition will last more than 30 days, the employer may not request recertification until that minimum duration has passed. Employers may, however, always require recertification every 6 months in connection with an absence.

Subject to those rules, an employer may require recertification for:

  • pregnancy, chronic, or permanent/long- term conditions under continuing supervision of a health care provider no more frequently than every 30 days and only in connection with an employee's absence, unless circumstances have changed significantly or the employer receives information casting doubt on the reason for the employee's absence;
  • a leave that had been certified by a health care provider as having a minimum duration in excess of 30 days and that time period has expired;
  • intermittent and reduced schedule leave no more frequently than the minimum time period specified on the certification as needed for the leave; or
  • any other condition at any reasonable interval, but no more frequently than every 30 days unless the employee requests an extension, circumstances have changed significantly such as with regards to the illness's duration or nature or complications, or the employer receives information casting doubt on the reason for the employee's absence.

The employee must respond to the recertification request within the time frame suggested by the employer, which must allow at least 15 calendar days from the date of the request, unless it is not practicable to do so despite the employee's diligent, good-faith efforts. The costs of recertifications are the employee's obligation, unless the employer provides otherwise. However, an employer may not request second or third opinions.

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Must employees take a fitness for duty exam when returning to work from an FMLA leave?

Yes, but only if the employer gives specifically notifies the employee that it requires a fitness-for-duty certification in the designation notice, described above. The only fitness for duty exam that the employee must pass is one by his or her own doctor. 

An employer may require an employee to obtain a certification from his or her health care provider stating that the employee is fit to resume work following an FMLA leave. The employer may provide the employee with a list of the employee’s essential job duties together with the designation notice, described above, in which the employer originally advises the employee of the necessity for a fitness-for-duty certification. If the employer provides such a list of essential functions, it may require the employee’s health care provider to certify that the employee can perform them. 

The general restriction on obtaining a new fitness-for-duty certification apply to returning to work from each intermittent leave event.  However, an employer can require  a certification of fitness to return to duty for intermittent absences, up to once every 30 days, if “reasonable safety concerns” exist regarding the employee’s ability to perform his or her duties.

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What are an employee's rights if His or Her Employer violates the Family and Medical Leave Act?

An employee can file a complaint with the  Department of Labor, which will investigate and, if appropriate, pursue an FMLA claim for the employee. An employee can also go to court and file a civil lawsuit.  If an employee wins in court, he or she can recover:

  1. lost pay and benefits plus interest, or the cost of providing care to a seriously ill family member, plus interest.  These are your "economic damages";
  2. a penalty equal to twice the amount of the economic damages;
  3. reinstatement, promotion, or an injunction requiring an employer to restore an employee to his or her job; and
  4. attorneys fees, expert witness fees and court costs.

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How do I learn more about the Family and Medical Leave Act?

Fortney & Klingshirn provide individualized legal counsel to our clients. Please call us if you would like to engage us regarding a Family and Medical Leave Act matter.  In addition, Fortney & Klingshirn provide additional information about the Family and Medical Leave on My Employment Lawyer, a service of Fortney & Klingshirn.

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