PART 1: THE BASICS OF THE FAMILY AND 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
The Family and Medical Leave Act (FMLA) provides eligible employees up to 12 workweeks of unpaid leave a year, and requires group health benefits to 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.
The FMLA also provides certain military family leave entitlements. Eligible employees may take FMLA leave for specified reasons related to certain military deployments of their family members. Additionally, they may take up to 26 weeks of FMLA leave in a single 12-month period to care for a covered service member with a serious injury or illness.
Who are covered employers?
The FMLA applies to all public agencies and private sector employers who employ 50 or more employees for at least 20 workweeks in the current or preceding calendar year – including joint employers and successors of covered employers. This includes full-time employees, part-time employees, and employees who are on leave, as long as the company reasonably expects them to return to work.
Who are eligible employees?
In order to be eligible to take leave under the FMLA, an employee must: 1. work for a covered employer; 2. have worked 1,250 hours during the 12 months prior to the start of leave (The 1,250 hours include only those hours actually worked for the employer. Paid leave and unpaid leave, including FMLA leave, are not included); 3. work at a location where the employer has 50 or more employees within 75 miles; and 4. have worked for the employer for 12 months. The 12 months of employment are not required to be consecutive in order for the employee to qualify for FMLA leave. In general, only employment within seven years is counted unless the break in service is (1) due to an employee’s fulfillment of military obligations, or (2) governed by a collective bargaining agreement or other written agreement.
Is it paid leave?
The FMLA only requires unpaid leave. However, the law permits an employee to elect, or the employer to require the employee, to use accrued paid vacation leave, paid sick or family leave for some or all of the FMLA leave period. An employee must follow the employer’s normal leave rules in order to substitute paid leave. When paid leave is used for an FMLA-covered reason, the leave is FMLA-protected. However, if the employee does not choose to substitute applicable accrued paid leave, the employer may require the employee to do so.
What are the types of allowable leave?
A covered employer must grant an eligible employee up to a total of 12 workweeks of unpaid, job-protected leave in a 12-month period for one or more of the following reasons: 1. for the birth of a child and to bond with the child or the placement with the employee of a child for adoption or foster care and to bond with that child; 2. to care for an immediate family member (spouse, child, or parent) with a serious health condition; 3. for a serious health condition of the employee; 4. for qualifying exigencies arising out of the fact that the employee’s spouse, son, daughter, or parent is on covered active duty or called to covered active duty status as a member of the National Guard, Reserves, or Regular Armed Forces; or 5. to care for a covered service member with a serious injury or illness, an employee may take up to 26 workweeks of unpaid, job-protected leave in a “single 12-month period”
When can a parent take leave for the birth, adoption, or bonding with a new child?
Leave to bond with a newborn child or for a newly-placed adopted or foster child must conclude within 12 months after the birth or placement. The use of intermittent FMLA leave for these purposes is subject to the employer’s approval. If the newly-born or newly-placed child has a serious health condition, the employee has the right to take FMLA leave to care for the child intermittently, if medically necessary and such leave is not subject to the 12-month limitation. Further, mothers and fathers have the same right to take FMLA leave to bond with a newborn child. A mother can also take FMLA leave for prenatal care, incapacity related to pregnancy, and for her own serious health condition following the birth of a child. A father can also use FMLA leave to care for his spouse who is incapacitated due to pregnancy or child birth.
What is intermittent leave?
Employees may take FMLA leave intermittently – taking leave in separate blocks of time for a single qualifying reason – or on a reduced leave schedule – reducing the employee’s usual weekly or daily work schedule. When leave is needed for planned medical treatment, the employee must make a reasonable effort to schedule treatment so as not to unduly disrupt the employer’s operation. One court has described intermittent leave as “a series of absences, separated by days during which the employee is at work, but all of which are taken for the same medical reason, subject to the same notice, and taken during the same twelve month period.” Davis v. Mich. Bell Tel. Co., 543 F.3d 345, 350–51 (6th Cir. 2008).
Can an employer change an employee’s job when the employee is on intermittent leave?
Employees needing intermittent leave for foreseeable medical treatments must work with their employers to schedule the leave so as not disrupt the employer’s operations, subject to the approval of the employee’s health care provider. In such cases, the employer may transfer the employee temporarily to an alternative job with equivalent pay and benefits that accommodate recurring periods of leave better than the employee’s regular job.
What is a serious health condition?
The most common serious health conditions that qualify for FMLA leave are: 1. conditions requiring an overnight stay in a hospital or other medical care facility; 2. conditions that incapacitate the employee or a family member for more than three consecutive days and have ongoing medical treatment; 3. chronic conditions that cause occasional periods when the employee or a family member is incapacitated and requires treatment by a health care provider at least twice a year; and 4. pregnancy (including prenatal medical appointments, incapacity due to morning sickness, and medically required bed rest). At least one federal court of appeals has found that the flu could be a qualifying serious health condition if it incapacitates the employee for three or more days. Miller v. AT&T Corp., 250 F.3d 820 (4th Cir. 2001).
Can FMLA leave continue to be used due to a chronic serious health condition?
Employees may use FMLA leave for any period of incapacity or treatment due to a chronic serious health condition. A chronic serious health condition is one that (1) requires “periodic visits” for treatment by a health care provider, (2) continues over an extended period of time, and (3) may cause episodic rather than continuing periods of incapacity. The regulations clarify this definition by defining “periodic visits” as at least twice a year.
Is an employee required to prove a serious health condition?
An employer may require that the need for leave for a serious health condition of the employee or the employee’s immediate family member be supported by a certification issued by a health care provider. The employer must allow the employee at least 15 calendar days to obtain the medical certification.
What if the employer determines that the certification is incomplete?
An employer must advise the employee if the certification is incomplete and allow the employee a reasonable opportunity to cure the deficiency. The employer must state in writing what additional information is necessary to make the certification complete and must allow the employee at least seven calendar days to cure the deficiency, unless seven days is not practicable under particular circumstances despite the employee’s diligent good faith efforts.
Can an employer make an employee get a second opinion?
An employer may require a second or third medical opinion, at the employer’s expense, if the employer has reason to doubt the validity of the medical certification. When seeking a second opinion, the employer should provide the medical professional with all of the relevant information about the employee’s condition. See, e.g., Humility of Mary Health Partners v. Teamsters Local Union No. 377, 517 F. App’x 301 (6th Cir. 2013) (upholding employee’s reinstatement where employer terminated employee after obtaining medical opinions concluding she was not eligible for FMLA leave but failed to inform the doctors who issued the opinions about the employee’s medical history).
Does an employee have to provide medical records to their employer?
No. An employee is not required to give the employer any medical records. The employer, however, does have a statutory right to request that an employee provide medical certification containing sufficient medical facts to establish that a serious health condition exists.
When must the employer request certification?
An employer should request medical certification at the time the employee gives notice of the need for leave or no later than five business days. If the leave is unforeseen, the employer should request medical certification within five days after the leave begins. An employer may request certification at a later date if he or she has reason to question the appropriateness or duration of the leave.
Can an employer contact a health care provider about a serious health condition?
Contact between an employer and an employee’s health care provider must comply with the Health Insurance Portability and Accountability Act (HIPAA) privacy regulations. Employers may contact an employee’s health care provider for authentication or clarification of the medical certification by using a health care provider, a human resource professional, a leave administrator, or a management official. The employee’s direct supervisor may never contact the employee’s health care provider. The health care provider may not provide an employer with individually-identifiable health information unless the employee provides the health care provider with a written authorization allowing the health care provider to disclose such information to the employer. Employers may not ask the health care provider for additional information beyond that contained on the medical certification form.
Are employees required to sign a medical release as part of a medical certification?
No. An employer may not require an employee to sign a release or waiver as part of the medical certification process. Completing such an authorization is at the employee’s discretion. However, it is the employee’s responsibility to provide the employer with a complete and sufficient certification. If the employee does not provide a complete certification or an authorization allowing the health care provider to disclose medical information to the employer, the employee's request for FMLA leave may be denied.
Can the employer request more than one certification?
The employer may request recertification no more often than every 30 days in connection with an absence by the employee unless the condition will last for more than 30 days. For conditions that are certified as having a minimum duration of more than 30 days, the employer must wait to request a recertification until the specified period has passed, except that in all cases the employer may request recertification every six months in connection with an absence by the employee. The employer may also request recertification in less than 30 days if the employee requests an extension of leave, the circumstances described in the previous certification have changed significantly, or if the employer receives information that casts doubt upon the employee’s stated reason for the absence or the continuing validity of the certification. Additionally, employers may request a new medical certification each leave year for medical conditions that last longer than one year. Such new medical certifications are subject to second and third opinions.
Can an employer require a fitness-for-duty certification before returning to work?
Yes. As a condition of restoring an employee who was absent on FMLA leave due to the employee’s own serious health condition, an employer may have a uniformly-applied policy or practice that requires all similarly-situated employees who take leave for such conditions to submit a certification from the employee’s own health care provider that the employee is able to resume work. The employer may require that the fitness-for-duty certification address the employee's ability to perform the essential functions of the position if the employer has appropriately notified the employee that this information will be required and has provided a list of essential functions. Additionally, an employer may require a fitness-for-duty certification up to once every 30 days for an employee taking intermittent FMLA leave if reasonable safety concerns exist regarding the employee's ability to perform his or her duties. Additionally, if an employee fails to submit a properly requested fitness-for-duty certification, the employer may delay job restoration until the employee provides the certification. If the employee never provides the certification, he or she may be denied reinstatement.
Can an employer move an employee to a different job after FMLA leave?
On return from FMLA leave, the employer must return the employee to the same job, or one that is nearly identical (equivalent). If not returned to the same job, a nearly identical job must: 1. offer the same shift or general work schedule, and be at a geographically proximate worksite; 2. involve the same or substantially similar duties, responsibilities, and status; 3. include the same general level of skill, effort, responsibility and authority; 4. offer identical pay, including equivalent premium pay, overtime and bonus opportunities, profit-sharing, or other payments, and any unconditional pay increases that occurred during FMLA leave; and 5. offer identical benefits.
What does an employee have to tell the employer when FMLA leave is needed?
If the need to take FMLA leave is foreseeable, employees are required to provide 30-day advance notice and notice is practicable. If leave is foreseeable less than 30 days in advance, the employee must provide notice as soon as practicable – generally, either the same or next business day. When the need for leave is not foreseeable, the employee must provide notice to the employer as soon as practicable under the facts and circumstances of the particular case. Absent unusual circumstances, employees must comply with the employer’s usual and customary notice and procedural requirements for requesting leave. Employees must provide sufficient information to reasonably determine whether the FMLA may apply. Such information may include that the employee is incapacitated due to pregnancy, has been hospitalized overnight, is unable to perform the functions of the job, and/or that the employee or employee’s qualifying family member is under the continuing care of a health care provider. An employee seeking FMLA leave for the first time does not have to expressly assert FMLA rights or even mention the FMLA. However, when an employee seeks FMLA leave for a reason for which the employer has previously granted FMLA leave, the employee must specifically reference either the qualifying reason for the leave or the need for FMLA leave.
Must an employee follow an employer’s normal call-in procedures?
Yes. Under the regulations, an employee must comply with an employer’s call-in procedures unless unusual circumstances prevent the employee from doing so (in which case the employee must provide notice as soon as he or she can practicably do so). The regulations make clear that, if the employee fails to provide timely notice, he or she may have the FMLA leave request delayed or denied and may be subject to whatever discipline the employer’s rules provide.
Must employers tell their employees about their FMLA rights?
Every covered employer is required to post, in conspicuous places, a notice explaining the FMLA’s provisions and providing information concerning the procedures for filing complaints of violations of the FMLA with the Department of Labor Wage and Hour Division. Employers must also include this general notice in employee handbooks or in other written employee benefits materials, and if no such materials exist, must distribute a copy of the notice to each new employee upon hiring. An employer that willfully violates this posting requirement may be subject to a civil money penalty for each separate offense. If the employer acquires knowledge that leave may be for a FMLA purpose, the employer must notify the employee of his or her eligibility to take leave, and inform the employee of his or her rights and responsibilities under the FMLA. When the employer has enough information to determine that leave is being taken for a FMLA-qualifying reason, the employer must notify the employee that the leave is designated and will be counted as FMLA leave.