The Family and Medical Leave Act (FMLA) allows eligible employees to take up to 12 weeks of unpaid leave to recover from illness or pregnancy or to care for sick family members. Employers covered by the FMLA are required to grant such leave and reinstate the employee to the same or an equivalent position upon timely return from FMLA leave. Because of the complexity of the statute and its corresponding regulations, employers have had great difficulty figuring out when an employee is entitled to leave and the conditions that may be placed upon such leave.
A private employer is covered under the FMLA if the employer employs 50 or more employees each working day for 20 or more full (not necessarily consecutive) calendar workweeks in the current or preceding calendar year. All public employers and educational agencies are covered under the FMLA, regardless of whether they meet the private employer threshold requirements. Once a private employer satisfies the 50-employee and 20‑workweek thresholds, the employer remains covered until it no longer employs at least 50 employees during 20 non-consecutive workweeks in both the current and the immediately preceding calendar years.
The definition for “employee” under the FMLA is relatively broad and includes:
For an employee to be entitled to FMLA leave, the employee must have worked for a covered employer for at least 12 months (these 12 months do not need to be consecutive) and worked at least 1,250 hours during the 12‑month period that immediately precedes the start of the FMLA leave. These eligibility requirements are calculated as of the date the employee begins leave, and not from the date the employee requests leave.
The employee must also be employed at a location where the employer employs at least 50 employees within a 75‑mile radius of the worksite where the employee requesting leave is employed. These requirements are calculated from the date the employee requests leave. It is important to note that it is not necessary that an employer have 50 or more employees employed within a 75‑mile radius to be covered under the FMLA.
The FMLA defines “son or daughter” to make it clear that an employee need not have a biological or legal relationship with a child in order to take FMLA time for leave of birth, bonding, or to care for a child as long as the employee actually has or intends to have day-to-day responsibilities for caring for the child. The definition includes a “biological, adopted or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis when the child is:
Someone acting in loco parentis may be assuming or intending to assume the obligations of a parental relationship with a child without going through the formalities necessary for legal adoption.
The factors for determining in loco parentis include:
Even the fact that the child may already have a mother and father does not prevent another individual who lacks a legal or biological relationship with the child to stand in loco parentis to the child. To help determine whether a child falls within the definition of “son or daughter” under the FMLA, an employer may require the employee to provide reasonable documentation or a statement of the family relationship.
Adult child with a disability
The U.S. Department of Labor (DOL) has also issued an administrative interpretation that clarifies the definition of son or daughter under the FMLA. The definition includes an adult child who has a mental or physical disability and is incapable of self-care because of that disability. The FMLA regulations adopt the ADA definition of disability as a physical or mental impairment that substantially limits a major life activity. Incapable of self-care means that active assistance or supervision is required for daily self-care in three or more areas of the activities of daily living or instrumental activities of daily living. To be eligible for FMLA leave to care for an adult son or daughter, the son or daughter must meet the following criteria:
An employee need not specifically request protection under the FMLA. Rather, the employee must only provide notice and a qualifying reason for requesting leave to the covered employer. A covered employer must provide an eligible employee with up to 12 weeks of unpaid leave during any 12-month period for any of the following reasons:
If spouses work for the same employer, the FMLA entitles them to a total of 12 weeks of leave per 12-month period for birth, adoption, foster care, or to care for a sick parent. Each spouse, however, is entitled to the remainder of his/her 12-week entitlement for any other qualifying leave.
The DOL issued a final rule implementing expansions to FMLA protections in 2013. The first involves FMLA protection for families of eligible veterans that is equivalent to the protection available to families of military servicemembers, enabling more military families to take leave for activities that arise related to a servicemember or veteran. The second area modified certain rules related to airline personnel to clarify FMLA protections for that industry. An employee whose family member is deployed in military service may be eligible for 12 weeks of "qualifying exigency leave." An employee who cares for a family member who has become seriously ill or injured from military service is eligible for up to 26 weeks of "military caregiver leave." For a military member who is on rest and recuperation leave, an eligible employee may receive 15 days of leave. The qualifying exigency leave is also available for family members of National Guard and military reservists in addition to the regular armed forces.
Employees are entitled to 12 weeks of FMLA leave during any 12-month period. The 12-month period may be calculated by any of the following methods:
Most employers prefer the latter two methods of calculation because they prevent employees from joining multiple leave periods together by taking 12 weeks of leave at the end of a calendar year and then 12 weeks of leave at the beginning of the next calendar year for a total of 24 consecutive weeks.
The employer must designate which method it wishes to use to calculate the 12-month leave period and apply the method uniformly and consistently. If the employer fails to select a method and notify the employees of which method applies, the method most beneficial to the employee will apply. If an employer changes methods, it must notify employees at least 60 days in advance.
The FMLA defines “intermittent leave” as leave taken in separate blocks of time due to a single qualifying condition. A “reduced leave schedule” is a change from full time to part time employment. An employee is entitled to take intermittent FMLA leave or reduced leave where it is “medically necessary” to care for a serious health condition of the employee or the employee’s immediate family member. With respect to intermittent FMLA leave or reduced leave related to the adoption or birth of a child, however, an employee can take such leave only with the consent of both the employer and the employee.
If an employee has made a request for intermittent leave or a reduced leave schedule, an employer is entitled to temporarily transfer employees to an “alternative position” for the duration of the intermittent or reduced leave, provided that the employee:
Benefits may be reduced proportionate to the number of hours worked only if such reduction is normal practice.
The FMLA defines the term “serious health condition” as an illness, impairment, or physical or mental condition involving one of the following:
inpatient care at a hospital, hospice, or residential medical care facility
Treatment or a visit to a healthcare provider is not required for every absence. Examples of chronic conditions requiring treatment are diabetes and asthma.
Several types of illnesses or injuries are specifically excluded from the definition of “serious health condition” in the regulations. Some examples include the following:
The act defines “healthcare provider” as a doctor of medicine or osteopathy who is authorized to practice medicine or surgery (as appropriate) by the state in which the doctor practices, or any other person determined by the Secretary of Labor to be capable of providing healthcare services. The regulations include in this definition practitioners and any healthcare provider who is recognized by the employer or accepted by the group health plan, podiatrists, dentists, clinical psychologists, optometrists, or Christian Science. Also included are nurse practitioners, nurse midwives, clinical social workers, and chiropractors (limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by X-ray), all of which are included only if authorized to practice in the state and performing within the scope of their practices as defined under state law.
While the act does not require a covered employer to pay employees during FMLA leave (unless the employer agrees to substitute paid leave, as discussed later), the employer must continue to provide eligible employees any employment benefit that they may have accrued prior to beginning FMLA leave. If benefits are added or changed during the leave, the employee is also entitled to those modifications. The key is that the employee maintains the benefits under the same conditions as those existing before the leave.
A covered employer must continue to provide coverage under its group health plan to the employee during the leave period under the same terms as if the employee continued employment. If employees regularly pay a portion of the insurance premiums, an employee should continue to make such payments while on leave. Even if an employee does not pay his/her portion of premiums during leave, the employer should pay the premiums on the employee’s behalf and attempt to recoup payment upon the employee’s return.
If the employee returns to work following the leave period, the employee is immediately entitled to reinstatement of insurance coverage. If the employee fails to return to work, an employer is entitled to recover premiums paid for maintaining coverage so long as the failure to return is not due to a serious health condition of the employee or other circumstances beyond his/her control. Although a covered employer’s FMLA obligations end when the employment relationship ends, the employer may still have obligations to maintain health benefits as required by the Consolidated Omnibus Budget Reconciliation Act of 1986 (COBRA).
Employees also may not be excluded from perfect attendance, safety, or similar bonuses because they are on FMLA leave. Similarly, an employee on FMLA leave will also remain entitled to any unconditional pay increases granted during leave.
An employee, however, is not entitled to the accrual of any seniority or employment benefits during the period of leave, although any benefits that accrued before the leave began are unaffected by the leave. At the same time, unpaid FMLA leave periods need not be treated as credited service for purposes of benefit accrual, vesting, or eligibility to participate in employment benefits.
Within a reasonable time after the employee is able to return from FMLA leave, the employer must restore the employee to his/her former job or to an “equivalent” position. There is not a set definition of what constitutes a reasonable time. The transition will depend on several factors including how the work has been covered during the leave, staffing and operational issues, and any changes in work flow or job duties that may have developed. What is required is good faith action toward the restoration to the former job or one that is equivalent.
If an employee is unable to perform an essential function of the position because of a physical or mental condition, the employee has no right to be restored to another position under the FMLA. In many circumstances, however, the Americans with Disabilities Act (ADA) may dictate further obligations for the employer. (See Disabilities and reasonable accommodation.) In addition, military servicemembers have reemployment rights under the Uniformed Services Employment and Reemployment Rights Act (USERRA).
A reinstated employee, has no greater entitlement to reinstatement or, as previously discussed, other benefits and conditions of employment, than if the employee had been continuously employed during the leave period. For instance, if the employee’s position was eliminated in a non-discriminatory reduction in force, the employee informs the employer that he/she does not intend to return to work, or the employee fails to return after exhausting FMLA benefits, the employer’s FMLA obligations end. An employer has the burden to prove that an employee would have been terminated if the employee had not taken FMLA leave in order to deny restoration to employment.
An exception to the FMLA’s reinstatement requirement permits employers to exclude salaried employees who are among the highest paid 10% of all employees (both salaried and non-salaried) in the employer’s workforce within 75 miles of the facility where the employee works. This exception, referred to in the regulations as the “key employee” exception, permits an employer to refuse reinstatement if:
Where an eligible employee plans to take foreseeable leave in the case of expected birth, placement for adoption or foster care, or planned medical treatment for a serious health condition, the employee must provide at least 30 days’ notice of the employee’s intention to take leave before leave is to begin. If the employee fails to give 30 days’ notice for a foreseeable leave with no reasonable excuse for the delay, the employer may deny the taking of leave until at least 30 days after the employee provides notice, provided that the employee had actual notice of FMLA notice requirements. If the employee intends to take leave in less than 30 days or otherwise changes the start date, the employee must provide notice “as soon as practicable,” which ordinarily may be satisfied by at least verbal notification to the employer, within one or two business days of when the need for leave becomes known to the employee. If an employee takes leave for planned medical treatment, the employee must make a reasonable effort to schedule the treatment in a manner that will not “unduly disrupt” the employer’s operations, subject to approval by a healthcare provider.
Where the employee takes unforeseeable leave, the employee must provide such notice “as is practicable,” or within two or three working days of learning of the need for leave, except in extraordinary circumstances where such notice is not feasible.
The employee need not expressly assert rights under the act or even mention the FMLA, but may only state that leave is needed for a potentially FMLA qualifying reason. As soon as the employee informs the employer that an absence may potentially qualify under the FMLA, the employer has the burden to determine whether the leave is actually for an FMLA qualifying reason. The employer may request medical certification to determine if the reason for the leave qualifies as a serious health condition.
An employer may require an employee to comply with the employer’s usual and customary notice and procedural requirements for requesting leave. However, if a collective bargaining agreement, state law, or an employer’s leave plan provides for lesser notice requirements, an employer cannot require compliance with the stricter FMLA requirements.
Designation of FMLA leave:
A covered employer has the responsibility to designate leave as FMLA leave promptly upon receiving notice of the need for leave by an eligible employee. Once the leave is designated FMLA leave, the employer generally has two working days to notify the employee. The employer may preliminarily designate leave as FMLA leave and later withdraw the designation if the employee or the employee’s reason does not qualify under the FMLA or the employee fails to receive medical certification.
A recent U.S. Supreme Court decision changed the consequences an employer must face when it fails to designate leave as FMLA leave. The Court found that an employer’s failure to give notice that the leave has been designated as FMLA leave, standing alone, does not violate the FMLA. Some courts have interpreted this decision to mean that the failure to give notice to an employee of the FMLA designation by the employer is irrelevant unless the employee can show any real impairment of his/her rights and resulting prejudice.
If a covered employer provides written guidance concerning leaves, wages, attendance, and similar matters in handbooks or other written policies, the employer must include information concerning FMLA rights and employee obligations in those written materials. The materials must also include any requirements for medical and fitness-for-duty certifications, which the employer may request.
Even if a covered employer does not have a handbook or other written policies, the employer must still provide written guidance explaining the FMLA to any employee who requests FMLA leave. These materials can be obtained from the DOL and must be provided to any employee requesting leave in addition to any written guidance, handbook provisions, or written policies described previously. These notices should detail the specific expectations and obligations of the employee and explain any consequences of failing to meet these obligations. Employer notices may initially be oral but must be confirmed in writing by the next payday (or subsequent payday if the next payday is less than one week away). If a significant portion of the workforce is not literate in English, the notice must be in the language that the employees can understand.
The employer notice must include all of the following information to be legally sufficient:
If the leave is intermittent and extends over a period of time, the employer must reissue the FMLA notice after six months if the employee’s absences will continue. In this scenario, if the specific information provided in the notice changes with respect to a subsequent period of FMLA leave during the six-month period, the employer must provide written notice to the employee informing him/her of the change. For instance, if the initial leave period was paid leave and the subsequent leave period would be unpaid, the employer may need to give notice of the arrangements for making premium payments.
Substitution of paid leave:
An employer who is covered by the FMLA and also offers accrued paid leave (such as vacation, personal, family and sick leave, and temporary disability benefit plans) has two options when an employee requests leave:
Either the employer or the employee may elect to substitute any accrued paid leave to which the employee is entitled under the employer’s general leave policies for any part of an unpaid leave required under the FMLA. If the requirements to qualify for payments under an employer’s temporary disability benefits plan or other paid leave policy are more rigorous than the FMLA requirements, the employee must meet the more stringent eligibility and notification requirements of the plan in order to receive paid benefits under the plan during designated FMLA leave. Moreover, an employer will not be required to provide paid medical or sick leave in any case where such leave would not normally be provided (such as, birth, adoption or foster care).
Regardless of whether the leave is paid, the employee’s FMLA qualifying absence remains protected by the act. If an employee uses paid leave under circumstances that do not qualify as FMLA leave, the leave will not count against the 12 weeks of FMLA to which the employee is entitled.
If an employer has sufficient knowledge to determine that the paid leave qualifies under the FMLA and fails to designate it as FMLA leave, the employee’s leave does not count against his/her FMLA leave entitlement until specific designation is made. In this situation, the employer may only reduce the 12-week leave prospectively. It is important to know, however, that the employee remains protected by the FMLA even during the period of paid leave not designated as FMLA leave.
Covered employers are required to post notice of FMLA rights conspicuously and prominently (even if there are no eligible employees at a particular worksite). If a significant portion (usually 10%) of the workforce is not literate in English, the posting must be in the language in which the employees can understand.
Employers in violation of FMLA’s posting requirements may suffer civil penalties of up to $100 per violation and forfeit their rights to take adverse action, including denying FMLA leave, against employees who fail to satisfy the requirements for taking FMLA leave.
The FMLA imposes strict recordkeeping requirements. Covered employers must make, keep, and preserve records pertaining to their obligations under the act in accordance with the Fair Labor Standards Act (FLSA) and FMLA regulations. Employers must keep records for at least three years and make them available for inspection, copying, and transcription by the DOL upon request. Employers must maintain records of the following information:
basic payroll and employee identification data
Information relating to medical certifications, re-certifications, or medical histories of employees or family members (created for the purpose of FMLA leave) must be maintained as confidential medical records in separate files from the usual personnel files.
When an employee submits a request for FMLA leave related to a serious health condition, an employer may require the employee to submit a medical certification form, signed by a healthcare provider, indicating that the employee (or the employee’s family member) does in fact suffer from a serious health condition. Normally, an employer should make the request for written certification within two days of receiving notice of leave from the employee and can provide the employee with 15 days to respond to the request with certification, or as soon as reasonably possible due to the circumstances. Once the employee has submitted this medical certification, the employer cannot request additional information from the healthcare provider. However, if the employer has reason to doubt the validity of the certification, then it may require the employee to obtain a second or third opinion from another healthcare provider at the employer’s expense, provided that the healthcare provider is not employed by the employer on a regular basis. The third healthcare provider must be designated or approved jointly by the employer and the employee. The third opinion will be considered final and binding. Certification is generally sufficient if it states the date on which the serious health condition began, the probable duration of the condition, the appropriate medical facts within the knowledge of the healthcare provider regarding the condition, and a statement that the employee is unable to perform the functions of the employee’s position.
The statute and regulations governing family and medical leave are enforced by the Wage and Hour Division of the DOL’s Employment Standards Administration. Most violations of the FMLA are the result of employer confusion in interpreting and implementing the act, as opposed to willful violations. Common violations committed by employers include the following:
An eligible employee may file a private civil action against an employer in state or federal court for FMLA violations. An employee must file such lawsuit within two years of the date of the alleged violation for ordinary damages, or within three years for willful violations. Unlike other civil rights statutes, an employee enforcing his/her rights under the FMLA is not required to file a complaint with the Wage and Hour Division prior to filing a civil lawsuit, although such employee is entitled to do so.
Virginia’s Victim’s Leave Act applies to all employers and requires employers to permit employees who are victims of crimes to attend related criminal proceedings provided the employee gives the employer certain notices (such as copies of subpoenas) for such proceedings. Employers are not required to pay employee-victims for this time. Employers are also not required to grant such leave if it would create an undue hardship. Employers should also be aware that the Virginia Victim’s Leave Act prohibits discrimination against crime victims in the workplace.