Family & medical leave

Family & medical leave
Authored by Andrew Wampler

Wilson 1bca35f096d56ee718c45bfa7080d4cdc0dac51aa6b2e653b2ea8ce1b527da5a

Introduction to family and medical leave

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. 

Parties covered by the FMLA

Employers

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: 


  • employees on the payroll even if no compensation is received

     

  • employees on leave if there is a reasonable expectation that they will return

     

  • part time employees. 

     

Employees

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.

 

Son or daughter definition

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 under 18 years of age

     

  • 18 years of age or older and incapable of self-care because of mental or physical disability.”

     

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:


  • the age of the child

     

  • degree to which the child is dependent on the individual

     

  • the amount of financial support, if any, the individual provides to the child

     

  • extent to which the individual exercises common parenting duties. 

     

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: 


  • has a disability as defined by the ADA

     

  • is incapable of self-care due to that disability

     

  • has a serious health condition

     

  • is in need of care due to the serious health condition. 

Leave requirements

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: 


  • the birth of a child, and to care for the newborn child within one year of birth

     

  • the placement of a child with the employee for adoption or foster care, and to care for the newly placed child within one year of placement

     

  • to care for a child, parent, or spouse who suffers from a “serious health condition,” which may include either physical and psychological care

     

  • a “serious health condition” that makes the employee unable to perform one or more of the essential functions of the job.

     

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.

 

Calculating the 12-month period

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:


  • a calendar year

     

  • a fixed 12-month period, such as a fiscal year or year that renews on the employee’s anniversary date (the date the employee was hired or deemed a permanent employee)

     

  • a 12-month period counted forward from the first day the employee takes leave

     

  • a “rolling” 12-month period measured backward from the date the employee uses any FMLA leave.

     

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.

 

Intermittent leave and part time employment

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:


  • receives equivalent pay and benefits

     

  • is returned to his/her prior position after the period of leave has ended. 

     

Benefits may be reduced proportionate to the number of hours worked only if such reduction is normal practice.

 

Serious health condition

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



  • continuing treatment by a healthcare provider, which is defined as:

     


    • Absence plus treatment

      ​A period of incapacity of more than three consecutive days that also involves either two or more treatments by a healthcare provider or treatment by a healthcare provider that results in a regimen of continuing treatment and supervision. 

       

      • “Incapacity” is the inability to work, attend school, or perform other regular daily activities due to a serious health condition, treatment for a serious health condition, or recovery from a serious health condition. 

         

      • “Treatment” includes (but is not limited to) examinations to determine if a serious health condition exists and evaluations of the condition.  Treatment does not include routine physical examinations, eye examinations, or dental examinations. 

         

      • A “regimen of continuing treatment” may include a course of prescription medication (such as an antibiotic) or therapy requiring special equipment to resolve or alleviate the health condition (such as oxygen); a regimen of continuing treatment that includes the taking of over-the-counter medications (such as aspirin, antihistamines, or salves); bed rest, drinking fluids, exercise or other similar activities that can be initiated without a visit to a healthcare provider is not, by itself, sufficient to constitute a regimen of continuing treatment for purposes of the FMLA. 

         




    • Pregnancy

      A period of incapacity due to pregnancy or for pre-natal care, including severe morning sickness.

       


    • Chronic conditions requiring treatment

      Any period of incapacity due to a chronic condition requiring treatment. A chronic serious health condition is one that:

      • requires periodic visits or treatments by a healthcare provider

         

      • continues over an extended period of time

         

      • may cause episodic periods of incapacity. 







​Treatment or a visit to a healthcare provider is not required for every absence. Examples of chronic conditions requiring treatment are diabetes and asthma.



  • Permanent or long term conditions requiring supervision

    A period of incapacity for permanent or long term conditions requiring supervision and involving treatments that may or may not be effective. Examples of permanent or long term conditions requiring supervision are Alzheimer’s disease and terminal cancer.

     


  • Multiple treatments for non-chronic conditions

    A period of absence to receive multiple treatments by a healthcare provider for a condition that would likely result in incapacity for more than three consecutive calendar days if left untreated. Examples of such treatments include chemotherapy, radiation treatments, and physical therapy.

     

Several types of illnesses or injuries are specifically excluded from the definition of “serious health condition” in the regulations. Some examples include the following:


  • Absence because of substance abuse will not qualify an employee for FMLA leave. However, substance abuse may be a “serious health condition” if the other conditions are met, and FMLA leave may be taken for treatment of substance abuse by a healthcare provider, such as enrollment in a drug rehabilitation program. 

     

  • Cosmetic treatment will not qualify an employee for FMLA leave unless inpatient hospital care is required or complications develop. 

     

  • Ordinary illnesses, such as the common cold, flu, earaches, upset stomach, minor ulcers, headaches other than migraines, routine dental or orthodontia problems, and periodontal disease will not qualify an employee for FMLA leave. However, like the other examples, any of these illnesses or conditions may be classified as a serious health condition if complications arise or any of the other conditions are met.

     

Healthcare provider    

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.

 

Maintenance of benefits during leave

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. 


Example

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. 

 

Reinstatement after leave

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: 


  • the employer informs the employee at the time the employee gives notice of the need for FMLA leave (or when FMLA leave begins, if earlier) that he/she qualifies as a “key employee” and advises the employee of the potential consequences of this status

     

  • the employer subsequently determines that reinstatement (not the absence) would cause “substantial and grievous economic injury” to the employer’s operations

     

  • the employer notifies the employee of its intent to deny reinstatement at this time

     

  • upon receiving a request to return to work, the employer confirms the determination and notifies the employee that reinstatement has been denied.

     

Employee notice requirements

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. 

 

Employer’s notice 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:


  • that the leave will count against the employee’s annual FMLA entitlement

     

  • any requirements for furnishing medical certification, and the consequences for failing to do so

     

  • the employee’s right to substitute paid leave, whether the employer will require such substitution, and any conditions related to substitution

     

  • any requirements for making premium payments to maintain health benefits, the arrangements for making such payments, and the consequences for failing to make such payments in a timely manner

     

  • any requirements for presenting fitness-for-duty certificates prior to returning to work

     

  • the employee’s status as a “key employee,” if applicable, and the consequences if the employer chooses to deny the employee the right to return to work, along with the conditions required for denial

     

  • the employee’s right to the same or an equivalent job upon return from leave (unless the employee is designated as a “key employee”)

     

  • the employee’s liability, if any, for payment of premiums for health benefits paid by the company during leave, if the employee fails to return to work.

     

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:


  1. the employer may permit the employee to use his/her FMLA leave and paid  leave sequentially

     

  2. the employer may require the employee to use his/her FMLA leave and paid  leave concurrently.

     

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.

 

Posting requirements:

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.

 

Recordkeeping requirements:

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



  • dates of FMLA leave

     

  • if FMLA leave is taken in increments of less than a day, the hours of leave

     

  • copies of employee notices of leave and copies of general and specific notices given to employees

     

  • documents describing employee benefits and employer policies and practices regarding the taking of paid and unpaid leave

     

  • premium payments of employee benefits

     

  • records of disputes between the employee and employer regarding designation of FMLA leave.

     

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.

 

Application for FMLA Leave of Absence Form



Sample Employer Response to Request for FMLA Leave of Absence Form



Sample FMLA Policy

Required medical certifications

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.

 

FMLA enforcement

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: 


  • failure to notify an employee of his/her FMLA rights

     

  • failure to notify an employee that leave counted towards the 12-week FMLA entitlement

     

  • failure to grant leave to provide care to a family member with a serious health condition

     

  • termination of an employee during or at the conclusion of FMLA leave.

     

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.

Time off requirements for victims of crime

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.