PART 2: The Basics of the Family & Medical Leave Act (and can my employer require me to use my FMLA time if I am out due to an on-duty injury?)
By: Susan Bungard, Attorney
How much time does the employer have to decide if leave qualifies as FMLA leave?
Absent extenuating circumstances, the regulations require an employer to notify an employee of whether the employee is eligible to take FMLA leave (and, if not, at least one reason why the employee is ineligible) within five business days of the employee requesting leave or the employer learning that an employee’s leave may be for a FMLA-qualifying reason.
What are the employer’s obligations once an employee is eligible for FMLA leave?
When an employer notifies an employee that he or she is eligible to take FMLA leave, the employer must also notify the employee of specific obligations associated with the leave. The employer must tell the employee if the employee will be required to provide certification of the reason for the leave and the employee’s right to substitute paid leave (including any conditions related to such substitution, and the employee’s entitlement to unpaid FMLA leave if those conditions are not met). If the information included in the notice of rights and responsibilities changes, the employer must inform the employee of such changes within five business days of receipt of the employee’s first notice of the need for FMLA leave subsequent to any change. Employers must answer questions from employees concerning their rights and responsibilities.
When must the employer notify an employee that the leave is FMLA leave?
An employer must notify an employee whether leave will be designated as FMLA leave within five business days of learning that the leave is being taken for a FMLA-qualifying reason, absent extenuating circumstances. The designation notice must also state if paid leave will be substituted for unpaid FMLA leave and if the employer will require the employee to provide a fitness-for-duty certification to return to work. If the amount of leave needed is known, an employer must inform an employee of the number of hours, days, or weeks that will be counted against the employee’s FMLA leave entitlement in the designation notice.
What is covered active duty?
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.
For a member of the Reserve components of the Armed Forces (members of the National Guard and Reserves), 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.
“Deployment to a foreign country” means the military member is deployed to an area outside of the United States, the District of Columbia, or any Territory or possession of the United States. Deployment to a foreign country includes deployment to international waters.
Who is eligible for military caregiver leave?
Military caregiver leave extends to those seriously injured or ill members of both the Regular Armed Forces and the National Guard or Reserves.
Are stepparents and stepchildren eligible for military caregiver leave?
Yes. Under the FMLA for military caregiver leave, a "son or daughter of a covered service member" means a covered service member’s biological, adopted, or foster child, stepchild, legal ward, or a child for whom the employee stood in loco parentis, and who is of any age. Under the FMLA for military caregiver leave, a “parent of a covered service member” means a covered service member’s biological, adoptive, step or foster father or mother, or any other individual who stood in loco parentis to the covered service member. This term does not include parents “in law.”
How long can a family member take for military caregiver leave?
An eligible employee is entitled to take up to 26 workweeks of leave during a “single 12-month period” to care for a seriously injured or ill service member. The “single 12-month period” begins on the first day the eligible employee takes military caregiver leave and ends 12 months after that date, regardless of the method used by the employer to determine the employee’s 12 workweeks of leave.
Military caregiver leave and other FMLA-qualifying leave in the same 12-month period?
Yes. The regulations provide that an eligible employee is entitled to a combined total of 26 workweeks of military caregiver leave and leave for any other FMLA-qualifying reason in this single 12-month period, provided that the employee may not take more than 12 workweeks of leave for any other FMLA-qualifying reason during this period. For example, in the single 12-month period an employee could take 12 weeks of FMLA leave to care for a newborn child and 14 weeks of military caregiver leave, but could not take 16 weeks of leave to care for a newborn child and 10 weeks of military caregiver leave.
Who is a service member’s next of kin for purposes of military caregiver leave?
The regulations define a covered service member’s “next of kin” as the service member’s nearest blood relative, other than the covered service member’s spouse, parent, son, or daughter, in the following order of priority: blood relatives who have been granted legal custody of the service member by court decree or statutory provisions, brothers and sisters, grandparents, aunts and uncles, and first cousins, unless the covered service member has specifically designated in writing another blood relative as the nearest blood relative for purposes of military caregiver leave under FMLA, in which case the designated individual shall be deemed to be the covered service member’s next of kin. The regulations provide that all family members sharing the closest level of familial relationship to the covered service member shall be considered the covered service member’s next of kin, unless the covered service member has specifically designated an individual as his or her next of kin for military caregiver leave purposes. In the absence of a designation, where a covered service member has three siblings, for example, all three siblings will be considered the covered service member’s next of kin.
Can military caregiver leave be taken for more than one injured service member?
Yes. By regulation, military caregiver leave is a “per-service member, per-injury” entitlement. Hence, an eligible employee may take 26 workweeks of leave to care for one covered service member in a “single 12-month period,” and then take another 26 workweeks of leave in a different “single 12-month period” to care for another covered service member. An eligible employee may also take 26 workweeks of leave to care for a covered service member in a “single 12-month period,” and then take another 26 workweeks of leave in a different “single 12-month period” to care for the same service member with a subsequent serious injury or illness.
Can an employee care for two seriously injured service members at once?
Yes, but the employee may not take more than 26 workweeks of leave during each single 12-month period.
What if the employee must go out of the country to care for the service member?
If the employee receives an invitational travel order (ITO) or invitational travel authorization (ITA) because the employee is needed immediately at the service member’s bedside, the employer must accept the ITO or ITA in lieu of the certification form or an employer’s own form.
The regulations also permit an eligible employee who is a spouse, parent, son, daughter or next of kin of a covered service member to submit an ITO or ITA issued to another family member as sufficient certification for the duration of time specified in the ITO or ITA, even if the employee seeking leave is not the named recipient on the ITO or ITA. If the covered service member’s need for care extends beyond the expiration date specified in the ITO or ITA, the regulations permit an employer to require an employee to provide certification for the remainder of the employee’s leave period.
Does the employee use military caregiver leave or leave to care for a family member?
The regulations provide that an employer must designate the leave as military caregiver leave first for military caregiver leave that also qualifies as leave taken to care for a family member with a serious health condition. The regulations also prohibit an employer from counting leave that qualifies as both military caregiver leave and leave to care for a family member with a serious health condition against both an employee’s entitlement to 26 workweeks of military caregiver leave and 12 workweeks of leave for other FMLA-qualifying reasons.
What type of notice is required for a qualifying exigency and how much time can be taken?
An employee must provide notice of the need for qualifying exigency leave as soon as practicable. When the need for leave is unforeseeable, an employee must comply with an employer’s normal call-in procedures absent unusual circumstances. An employee does not need to specifically assert his or her rights under FMLA, or even mention FMLA, when providing notice. The employee must provide “sufficient information” to make the employer aware of the need for FMLA leave and the anticipated timing and duration of the leave. An employee may take up to 12 workweeks of FMLA leave for qualifying exigencies during the twelve-month period. Qualifying exigency leave may also be taken on an intermittent or reduced leave schedule basis.
What are the certification procedures for exigency leave?
The same timing requirements for certification apply to all requests for FMLA leave, including those for military family leave. Therefore, certification must be provided to the employer within the time frame requested by the employer (which must allow at least 15 calendar days after the employer’s request), unless it is not practicable under the particular circumstances to do so despite the employee’s diligent, good faith efforts. If the qualifying exigency involves a meeting with a third party, employers may verify the schedule and purpose of the meeting with the third party. Additionally, an employer may contact the appropriate unit of the Department of Defense to confirm that the military member is on covered active duty or call to covered active duty status.
Employers are not permitted to require second or third opinions on qualifying exigency certifications. Employers are also not permitted to require recertification for such leave.
How much leave is available for both a serious health condition and a qualifying exigency?
Exigency leave qualifies for up to 12 workweeks of FMLA leave each year. An eligible employee may take all 12 weeks of his or her FMLA leave entitlement as qualifying exigency leave or the employee may take a combination of 12 weeks of leave for both qualifying exigency leave and leave for a serious health condition.
Can exigency leave be taken when the family member returns from deployment?
Yes. An eligible employee is entitled to take qualifying exigency leave for certain qualifying post-deployment exigencies, including reintegration activities, for a period of 90 days following the termination of the military member’s covered active duty status.
Can FMLA leave be used to care for an employee’s brother?
Maybe. FMLA leave to care for a relative is generally limited to caring for a spouse, son, daughter, or parent. An eligible employee standing in loco parentis to a sibling who is under 18, or who is 18 years of age or older and incapable of self-care because of a mental or physical disability, may take leave to care for the sibling, if the sibling has an FMLA-qualifying serious health condition.
Can an employer deny a bonus based on usage of FMLA leave?
An employer may deny a bonus that is based upon achieving a goal, such as hours worked, products sold or perfect attendance, to an employee who takes FMLA leave (and thus does not achieve the goal) as long as it treats employees taking FMLA leave the same as employees taking non-FMLA leave.
Can an employee refuse to work overtime with proper medical certification?
Yes. Employees with proper medical certifications may use FMLA leave in lieu of working required overtime hours. The regulations clarify that the hours that an employee would have been required to work but for the taking of FMLA leave can be counted against the employee’s FMLA entitlement. Employers must select employees for required overtime in a manner that does not discriminate against workers who need to use FMLA leave.
Can paid leave be used as FMLA leave?
An employee may choose to substitute accrued paid leave for unpaid FMLA leave if the employee complies with the terms and conditions of the employer’s applicable paid leave policy. The regulations also clarify that substituting paid leave for unpaid FMLA leave means that the two types of leave run concurrently, with the employee receiving pay pursuant to the paid leave policy and receiving protection for the leave under the FMLA.
How do collective bargaining agreements (CBAs) affect the FMLA Regulations?
An employer must observe any employment benefit program or plan that provides greater family or medical leave rights to employees than the rights established by the FMLA. Conversely, the rights established by the FMLA may not be diminished by any employment benefit program or plan. For example, a provision of a CBA which provides for reinstatement to a position that is not equivalent because of seniority (e.g., provides lesser pay) is superseded by FMLA.
Can an employer discriminate against an employee for taking FMLA leave?
An employer is prohibited from interfering with, restraining, or denying the exercise of FMLA rights, retaliating against an employee for filing a complaint and cooperating with the Department of Labor Wage and Hour Division (WHD), or bringing a private action to court. WHD should be contacted immediately if an employer retaliates against an employee for engaging in any of the legally protected activities.
Can an employer require an employee to use FMLA for workers’ comp leave?
Employees should be aware that workers’ compensation leave can count against their FMLA leave entitlement. FMLA leave and workers’ compensation leave can run concurrently if the reason for the employee’s absence is due to a qualifying serious illness or injury and employer properly notifies the employee, in writing, that the leave will be counted as FMLA leave. Therefore, the practice of employers requiring employees to use FMLA to take time off work if they are injured on the job is not illegal.
However, the employer must due its due diligence before making such a determination to make sure they are not allowing the employee to exhaust the benefits they may be eligible for because of workers’ compensation laws. In situations where both the FMLA and workers’ compensation laws apply, employers must provide leave under whichever law provides the greater rights and benefits to the employee. Therefore, employers cannot require a worker to take time off under FMLA instead of workers’ compensation if the employee’s injury makes them eligible to workers’ compensation.
For departments that allow for Hazardous Duty Injury Leave (injury occurs on-duty but the employer continues to pay the employee their full salary and does not require the employee to take workers’ compensation leave for a specified period of time), the employer can require the employee to use FMLA leave time for the Hazardous Duty Injury Leave also if it is a qualifying serious illness or injury and the employer notifies the employee, in writing, as required.
What if an employee needs more than 12 weeks of leave?
When an employee requires additional leave beyond the 12 weeks that the FMLA provides, employers must evaluate whether continued unpaid leave is required as a reasonable accommodation under the Americans with Disabilities Act. This, however, needs to be the subject to another article.
The FMLA allows eligible employees to take up to 12 workweeks of unpaid leave a year and also provides certain military family leave entitlements of up to 26 weeks in a single 12-month period to care for a covered service member with a serious injury or illness. The FMLA requires that group health benefits be maintained during the leave as if employees continued to work instead of taking leave. Employees are also entitled to return to their same or an equivalent job at the end of their FMLA leave.