Family and Medical Leave Act (FMLA) Frequently Asked Questions

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1 Family and Medical Leave Act (FMLA) Frequently Asked Questions GENERAL Q: What is the Family and Medical Leave Act (FMLA)? A: The Family and Medical Leave Act of 1993 is a federal law that provides covered employees with the right to an unpaid leave of absence for up to 12 weeks within a 12-month period, in order to address certain family and medical responsibilities. There is a provision expanding the leave to 26 weeks to care for family members whose medical needs were incurred in military activities. Q: Which employers must comply with the FMLA? A: The FMLA applies to all: 1) public agencies, including local governments, state and federal employers; 2) public and private elementary and secondary schools; 3) private-sector employers with 50 or more employees in 20 or more calendar workweeks in the current or preceding calendar year. Q: Are we required to comply with the FMLA if we have fewer than 50 employees in our City? A: If you have employed fewer than 50 employees in 20 or more of the calendar workweeks in the current or preceding calendar year, then your employees are not eligible for protected leave under the FMLA and your other policies regarding leaves and absences will apply. The City, however, is still covered as a public agency, regardless of size, and must comply with the posting and policy distribution requirements of the FMLA. For clarity, you may include a proviso in your policy that employees are not eligible for benefits under the FMLA if the city employs fewer than 50 employees. EMPLOYEE ELIGIBILITY Q: Which employees are eligible to take FMLA leave? A: Employees are eligible for FMLA if they: currently work for a covered employer; have worked for the employer for a total of at least 12 months; have worked at least 1,250 hours over the previous 12 months; work in the United States, District of Columbia, or any Territory or Possession of the United States; and 1

2 work at a location where the employer has 50 employees within a 75-mile radius at the time the employee requests leave. Q. Will an employee with 12 months of non-consecutive service still qualify for FMLA leave? A. Usually. The 12 months of employment are not required to be consecutive in order for the employee to qualify for FMLA leave. But, employment prior to a continuous break in service of seven years or more need not be 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. Q. Does an employee s absence due to National Guard or Reserve duty affect their eligibility for FMLA leave? A. No. A break in service due to an employee s fulfillment of National Guard or Reserve Duty obligations must be taken into consideration when determining whether an employee has been employed for 12 months or has the required 1,250 hours of service. Under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), hours that an employee would have worked but for his or her military service are credited toward the 1,250 hours an employee is required to work for FMLA eligibility. Similarly, time in military service must also be counted in determining whether the employee has been employed for at least 12 months. Example: Dean worked for his employer full-time from January 1 to June 31, 2008 (six months). He was then called to active duty status with the Reserves and deployed to Iraq. In March 2009, immediately after discharge, Dean returned to his employer and requested to be reinstated under USERRA. For FMLA purposes Dan must be treated as having worked full-time from January 2008 to March 2009, and thus, he is eligible for FMLA leave. LEAVE ENTITLEMENT Q: When is an employee entitled to Family Medical Leave? A: Covered employers must grant eligible employees up to 12 weeks of unpaid leave during any 12- month period for any of the following reasons: for the birth and care of the newborn child of the employee within 12 months of the child s birth; when a child under the age of 18 is placed with an employee for adoption or foster care; to care for an immediate family member (spouse, child, or parent) with a serious health condition; when the employee is unable to work because of his or her own serious health condition; or, 2

3 any qualifying exigency arising out of the active duty or impending order to active duty of a family member (spouse, child, or parent) in the Reserve, National Guard, or certain members of the Regular Armed Forces and Retired Reserve. Covered employers must grant an additional one-time 14 weeks of leave(for a total of 26 weeks) during a single 12 month period to eligible employees who are the spouse, child, parent, or next of kin of a covered Servicemember who incurred a serious injury or illness in the line of duty, so the employee may care for that servicemenber. Q: What is a serious health condition? A: Serious health condition means an illness, injury, impairment, or physical or mental condition that involves either: 1) any period of incapacity or treatment connected with inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical-care facility, and any period of incapacity or subsequent treatment in connection with such inpatient care; or 2) continuing treatment by a health care provider which includes any period of incapacity (i.e., inability to work, attend school, or perform other regular daily activities) due to: a) A health condition lasting more than three consecutive days, and any subsequent treatment or period of incapacity relating to the same condition, that also includes: (i) (ii) treatment two or more times by or under the supervision of a health care provider; or one treatment by a health care provider with a continuing regimen of treatment. b) Pregnancy or prenatal care. A visit to the health care provider is not necessary for each absence. c) A chronic serious health condition that continues over an extended period of time, requires periodic visits to a health care provider, and may involve occasional episodes of incapacity (e.g., asthma, diabetes). A visit to a health care provider is not necessary for each absence. d) A permanent or long-term condition for which treatment may not be effective (e.g., Alzheimer s, terminal cancer). Only supervision by a health care provider is required, rather than active treatment. e) Any absences to receive multiple treatments for restorative surgery or for a condition which would likely result in a period of incapacity of more than three days if not treated (e.g., chemotherapy or radiation treatments). 3

4 Q: Who is considered an immediate family member for purposes of taking FMLA leave? A: An employee s spouse, children (son or daughter), and parents are immediate family members for purposes of FMLA. Spouse means a husband or wife as defined or recognized under Texas law. Parent means a biological, adoptive, step or foster father or mother or any individual who stood in place of a parent. It does not, however, include parents in-law. The terms son or daughter mean a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in place of the child s biological parent. Son or daughter does not include individuals age 18 or over unless they are incapable of self-care because of a mental or physical disability that limits one or more major life activities. For purposes of a son or daughter on covered active duty or call to covered active duty, or for Servicemember Family Leave, the child may be of any age (more FAQs on the military leave provisions later). Q: How much leave is an employee entitled to under FMLA? A: If an employee meets the eligibility criteria, he or she will be entitled to 12 weeks of leave during a 12-month period or to 26 weeks if leave is taken to care for a covered Servicemember. Q: How is the 12-month period calculated under FMLA? A. Employers may select one of four options for determining the 12-month period for all types of FMLA leave, except military caregiver leave. Those options are: the calendar year; any fixed 12-month leave year such as a fiscal year, a year required by state law, or a year starting on the employee s anniversary date; the 12-month period measured forward from the date any employee s first FMLA leave begins; or a rolling 12-month period measured backward from the date an employee uses FMLA leave. If an employer fails to select one of these options for measuring the 12-month period, the option that provides the most beneficial outcome for the employee will be used. For the purposes of military caregiver leave, the 12-month period always begins on the first day leave to care for the servicememember is taken. Q: Do the 1,250 hours include paid leave time or other absences from work? A. No. The 1,250 hours includes only those hours actually worked for the employer. Paid leave and unpaid leave, including FMLA leave, are not included. Q: How do I determine if an employee has worked 1,250 hours in a 12-month period? A. An individual s record of hours worked would be used to determine whether 1,250 hours had been worked in the 12 months prior to the commencement of FMLA leave. As a rule of thumb, the following may be helpful for estimating whether this test for eligibility has been met; 4

5 24 hours worked in each of the 52 weeks of the year; or over 104 hours worked in each of the 12 months of the year; or 40 hours worked per week for more than 31 weeks (over seven months) of the year. Q: Is FMLA leave paid? A. No. 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 or, subject to certain restrictions, paid sick or family leave for some or all of the FMLA leave period. When paid leave is substituted for unpaid FMLA leave, it may be counted against the employee s 12-week FMLA leave entitlement. Q. Can an employee use his or her paid leave, including compensatory time, as FMLA leave? Can an employer require the employee to use his or her paid leave, including compensatory time, as FMLA leave? A. Yes. An employee may choose to substitute accrued paid leave, including compensatory time for unpaid FMLA leave if the employee complies with the terms and conditions of the employer s applicable paid leave policy. In addition, the employer can require an employee to substitute accrued paid leave, including compensatory time, for unpaid FMLA leave. 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. Example: Sheila needs to take two hours of FMLA leave for a treatment appointment for her serious health condition. Sheila would like to substitute paid sick leave for her absence, but her employer s sick policy only permits employees to take sick leave in full days. Sheila may either choose to comply with her employer s sick leave policy by taking a full day of sick leave for her doctor s appointment (in which case she will use a full day of FMLA leave), or she may ask her employer to waive the requirement that sick leave be used in full day increments and permit her to use two hours of sick leave for her FMLA absence. Sheila can also take unpaid FMLA leave for the two hours. Q: Do employees have to specifically request FMLA leave in order to be entitled to it? A: No. Employees seeking FMLA leave need not specifically ask for it. The responsibility of the employee is to give the employer enough information to determine if the leave falls within FMLA eligibility. At that point, it is the employer s obligation to inquire further in order to decide whether the leave truly is covered or not. It is often misunderstood that FMLA is like an accrual that may be banked and used at the employee s discretion. Actually, FMLA allows (and arguably requires) an employer to designate qualifying leave as FMLA-covered even though an employee may not want to use FMLA leave. 5

6 Q: How does FMLA leave affect an employee s benefits? A: While an employee is on FMLA leave, the employer must maintain the employee s coverage under any group health plan on the same terms as if the employee continued to work. The employee, however, must pay the employer his or her portions of the group health benefit premiums. In the absence of an established employer policy providing a longer grace period, an employer s obligation to maintain health insurance coverage ceases under FMLA if an employee s premium is more than 30 days late. The employer must provide written notice to the employee at least 15 days before coverage will terminate. The employer should inform the employee that coverage will expire 15 days after the date of the letter unless payment is received. Employers may terminate an employee s health benefits retroactively if: 1) the employer has policies offering other forms of unpaid leave and those policies permit the employer to terminate coverage retroactively to the first date of the period to which the unpaid premium applies, and 2) the employee was provided with a 15-day notice. Even if benefits are cancelled as a result of the employee s failure to pay premiums, upon the employee s return to work, the employer must restore the employee to benefits equivalent to those the employee would have had if leave had not been taken, including family or dependent coverage. The employee may not be required to serve a new pre-existing condition waiting period, wait for open enrollment, or pass a medical examination to obtain reinstatement of coverage. Q: What is the relationship between COBRA and FMLA? A. A COBRA qualifying event does not occur unless an employee is terminated. With regards to FMLA, this may occur, for example, if an employee on FMLA leave for does not return to work after the leave is over. Cancellation of group health coverage for nonpayment of premiums during an FMLA leave is not a qualifying event under COBRA regardless of whether or not the employee returns to work. Further, once a COBRA qualifying event occurs (an employee is terminated while on leave or after FMLA leave is over), the employee becomes eligible for COBRA at that time, even if he or she had lost coverage previously for non-payment; employers cannot condition COBRA continuation coverage upon repayment of group health premiums if the employee defaulted on premium payments while on FMLA leave. Q: What is the relationship between the FMLA and the Americans with Disabilities Act? A: Employers must comply with both the FMLA and the ADA. Employee rights under the Americans with Disabilities Act (ADA) are concurrent with the employee s rights under the FMLA. For example, an employee whose health condition qualifies as a disability under the ADA may also be entitled to leave benefits and protection under the FMLA. Likewise, an employee who has used all the benefits due under the FMLA may still require reasonable accommodation under the ADA. 6

7 Q: What is the relationship between FMLA and Workers Compensation Programs? A: Employee rights under the FMLA and workers compensation plans are concurrent. Therefore, an employee with an on-the-job injury that also qualifies as a serious health condition may receive benefits under both the FMLA and state workers compensation laws. However, employees cannot receive workers compensation benefits and paid FMLA leave concurrently. For example, if an employee receives workers compensation benefits, neither the employee nor employer can require substitution of paid leave for unpaid leave. An employer or employee may agree to supplement unpaid portions of workers compensation benefits with paid leave. Q: What is the relationship between FMLA and the Fair Labor Standards Act? A: Under the Fair Labor Standards Act, exempt employees generally may not be docked for absences of less than a day. However, if an employee is taking FMLA leave on an intermittent or reduced leave schedule, the employee may be docked for leave time of less than a day without losing the employee s exempt status. Q: What is the relationship between FMLA and the Genetic Information Nondiscrimination Act of 2008 (GINA)? A: Employers must be careful when requesting medical certification for FMLA leave, as the Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by that law. Genetic Information, as defined by GINA, includes an individual s family medical history, the results of an individual s or family member s genetic tests, the fact that an individual or an individual s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual s family member or an embryo lawfully held by an individual or family member receiving assisted reproductive services. Family medical history, however, may be acquired as part of the certification process for FMLA leave (or leave under similar state or local laws or pursuant to an employer policy), where an employee is asking for leave to care for a family member with a serious health condition. To comply with GINA, employers should include a notice in requests for medical information that instructs employees not to provide any genetic information when responding to the request. (See the notice included with the certification form under Tab 10). QUALIFYING REASONS FOR FMLA LEAVE Q: Can the employer count leave taken due to pregnancy complications against the 12 weeks of FMLA leave for the birth and care of a child? 7

8 A. Yes. An eligible employee is entitled to a total of 12 weeks of FMLA leave in a 12-month period. If the employee has to use some of that leave for another reason, including a difficult pregnancy, it may be counted as part of the 12-week FMLA leave entitlement. Q. Can an employee use FMLA leave for his or her chronic serious health condition? A. 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 (at least twice a year) for treatment by a health care provider or nurse under the supervision of the health care provider, (2) continues over an extended period of time, and (3) may cause episodic rather than continuing periods of incapacity. Q: May an employee take leave intermittently? A: FMLA leave may be taken intermittently whenever medically necessary to care for a newborn child, a seriously ill family member, or because the employee is seriously ill and unable to work. Leave taken intermittently is still tracked as FMLA leave used and counted toward the12-week total. The law requires employees to work with their employer to schedule intermittent leave, when possible, so that it does not unduly disrupt the employer s operation. In some instances the employer may elect to assign the employee to a temporary alternative position with equivalent pay and benefits that better accommodates the employee s intermittent or reduced leave schedule. Q: May an employee take FMLA leave for visits to a physical therapist, if their doctor prescribes the therapy? A. Yes. FMLA permits an employee to take leave to receive "continuing treatment by a health care provider," which can include recurring absences for therapy treatments such as those ordered by a doctor for physical therapy after a hospital stay or for treatment of severe arthritis. EMPLOYER NOTICE REQUIREMENTS Q. What are an employer s posting and general notice requirements? A. Employers must post a general notice that (1) explains employees rights and employers responsibilities under the FMLA and (2) provides information regarding procedures for filing a claim under the Act. The notice must be posted in a conspicuous place where it can be seen by employees and applicants. Employers must also include this information in employee handbooks or other written policy manuals that describe employee benefits and leave provisions. An employer without a handbook or written guidance is required to provide the same information to new employees upon hiring. Q. How soon after an employee provides notice of the need for leave must an employer determine whether the individual is eligible for FMLA leave? 8

9 A. 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. Q. How soon after an employee provides notice of his/her need for leave must an employer notify the employee that the leave will be designated and counted as FMLA leave When the employer has enough information to determine whether the leave qualifies as FMLA (e.g., after receiving a certification), the employer must notify the employee whether the leave will be designated and will be counted as FMLA leave within five business days absent extenuating circumstances. Q: What notice does the employer need to provide the employee? A. Employers must be provided with a written notice that designates a leave as FMLA leave. This notice should also include the following: 1) That the leave will be counted against the employee s annual 12-week FMLA entitlement or 26 week leave entitlement in the case of military caregiver leave; 2) Any requirements for the employee to furnish medical certification and the consequences for failing to do so; 3) The employee s right to elect to use paid leave for unpaid FMLA leave, whether the employer will require the use of paid leave, and the conditions relating to using paid leave; 4) Any requirement for the employee to make premium payments for maintaining group insurance benefits; 5) Any requirement for presenting a fitness-for-duty certification before returning to the job; 6) Rights to job restoration upon return from FMLA leave; and 7) The employee s potential liability for reimbursement of health insurance premiums paid by the employer during the leave if the employee fails to return to work after taking FMLA leave. Additionally, 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. Where it is not possible to provide the number of hours, days, or weeks that will be counted as FMLA leave in the designation notice (e.g., where the leave will be scheduled), an employer must provide this information upon request by the employee, but no more often than every 30 days and only if leave was taken during that period. Q. What other notice is an employer required to provide to an employee under the FMLA? 9

10 A. At the same time an employer provides notice of an employee s eligibility to take FMLA leave, the employer must also notify the employee of the specific responsibilities and requirements associated with the leave. Among other information included in this notice, the employer must inform the employee whether the employee will be required to provide certification of the FMLAqualifying reason for leave and the employee s right to substitute paid leave (including any conditions related to such substitution, and an 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. Q. If an employer fails to tell an employee that leave has been designated as FMLA leave, can the employer count the leave against the employee s FMLA leave entitlement? A. Retroactive designation is permitted (but not recommended) if an employer fails to timely designate and/or notify the employee that leave will be counted as FMLA leave. The employer may not be able to count retroactively designated leave, however, if the employee can show harm or injury as a result of the untimely designation. In any case, an employee and employer may agree to retroactively designate an absence as FMLA-protected. Example: Henry plans to take 12 weeks of FMLA leave beginning in August for the birth of his second child. Earlier in the leave year, however, Henry took two weeks of annual leave to care for his mother following her hospitalization for a serious health condition. Henry s employer failed to timely notify him that the time he spent caring for his mother would be counted as FMLA leave. If Henry can establish that he would have made other arrangements for the care of his mother if he had known that the time would be counted against his FMLA entitlement, the two weeks his employer failed to appropriately designate may not count against his FMLA entitlement. EMPLOYEE NOTICE REQUIREMENTS Q. How much notice must an employee give before taking FMLA leave? A. When the need for leave is foreseeable, such as when it is based on an expected birth, placement for adoption or foster care, or planned medical treatment, an employee must give at least 30 days notice. If 30 days notice is not possible, an employee is required to provide notice as soon as practicable. Employees must also provide notice as soon as practicable for leave due to a qualifying exigency related to covered active duty. The regulations clarify that it should be practicable for an employee to provide notice of the need for foreseeable leave either the same day or the next business day after the employee learns of the need for leave. But, the determination of when an employee could practicably provide notice will always be based on the particular facts and circumstances of a that case. Example: When Mandy goes to her Monday physical therapy appointment for her serious health condition, she finds out that the appointment she had previously scheduled for Thursday has been changed to Friday. Upon her return to work after the Monday appointment, Mandy informs her employer 10

11 that she will no longer need leave on Thursday for physical therapy, but will need leave on Friday instead. Mandy has provided notice of her need for foreseeable leave as soon as practicable. Q. What information must an employee give when providing notice of the need for FMLA leave? A. When an employee seeks leave for the first time for an FMLA-qualifying reason, the employee does not need to specifically assert his or her rights under the FMLA, or even mention the FMLA. The employee must, however, provide sufficient information to make the employer aware of the need for FMLA leave and the anticipated timing and duration of the leave. Depending on the situation, sufficient information may include that a condition renders the employee unable to perform the functions of the job; that the employee is pregnant or has been hospitalized overnight; whether the employee or the employee s family member is under the continuing care of a health care provider; that a covered military member is on active duty and that the requested leave is for a qualifying exigency; that a condition renders a family member unable to perform daily activities; or that a family member is a covered Servicemember with a serious injury or illness. The employee must also provide the anticipated duration of the absence, if known. Where an employee seeks leave due to a FMLA-qualifying reason for which the employer has previously provided FMLA-protected leave, the employee must either specifically state the qualifying reason for leave or the need for FMLA leave. Q. Is an employee required to follow an employer s normal call-in procedures when taking FMLA leave? A. Yes. 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). If an employee fails to provide timely notice, he or she may have their FMLA leave request delayed or denied and may be subject to discipline as provided in the employer s policies or procedures. Example: Sam has a medical certification on file with his employer for his chronic serious health condition - migraine headaches. He is unable to report to work at the start of his shift due to a migraine and needs to take unforeseeable FMLA leave. He follows his employer s absence call-in procedure to timely notify his employer about his need for leave. Sam has provided his employer with appropriate notice. If, however, Sam just doesn t feel up to calling in that morning, the employer may cite him for violating the call-in procedure, as long as non-fmla employees are subject ot the same disciplinary consequences for not calling in. CERTIFICATION OF NEED FOR FMLA LEAVE Q. Does an employee need to provide medical records for leave due to a serious health condition? 11

12 A. No. An employee is not required to give the employer his or her medical records. The employer, however, does have the right to request that an employee provide a medical certification from the health care provider containing sufficient medical facts to establish that a serious health condition exists. Q. What information may an employer request regarding an employee s medical condition? A. Employers may request a complete and sufficient medical certification that documents the basis for an employee s request, the period for which leave is being requested, and the anticipated return to work date. As previously discussed, however, employers must comply with GINA, and therefore may not make a request for genetic Information, except for relevant information regarding family medical history when an employee is asking for leave to care for a family member with a serious health condition. Q. How soon after an employee requests leave must an employer request medical certification of a serious health condition? A. In most cases, an employer should request medical certification at the time an employee gives notice of the need for leave or within 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 it has reason to question the appropriateness or duration of the leave. Q: How long does an employee have to return the completed medical certification? A: An employee has 15 calendar days from the date indicated on the Provisional FMLA Designation Letter letter to return the completed medical certification. Q. What happens if we determine that the medical certification is incomplete? A. An employer must advise the employee if it finds 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 sufficient. An employee is then entitled to at least seven calendar days to cure the deficiency, unless seven days is not practicable under the particular circumstances despite the employee s diligent good faith efforts. Q: Is an employee s medical certification confidential? A: The information contained in an employee s medical certification is confidential and should be maintained separately from his or her personnel record. Supervisors should not receive a copy of any medical certification and should only be notified of information that is consistent with business necessity (i.e. the date leave begins, ends, and whether the leave is intermittent). 12

13 Q. May we contact an employee s health care provider to discuss their serious health condition? A. Employers may contact an employee s health care provider for authentication or clarification of the medical certification, but contact may only be made by a health care provider, a human resource professional, a leave administrator, or a management official. In no case may the employee s direct supervisor contact the employee s health care provider. In order for an employee s HIPAAcovered health care provider to provide an employer with individually-identifiable health information, the employee will need to provide 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. Q. May employers require employees to execute a medical release as part of the medical certification process? A. No. An employer may not require an employee to sign a release or waiver as part of the medical certification process. The regulations specifically state that completing any such authorization is at the employee s discretion. Whenever an employer requests a medical certification, however, it is the employee s responsibility to provide the employer with a complete and sufficient certification. If an employee does not provide either a complete and sufficient certification or an authorization allowing the health care provider to provide a complete and sufficient certification to the employer, the employee's request for FMLA leave may be denied. Q. How often may an employer ask for medical certifications for an on-going serious health condition? A. An employer can ask an employee, who is on leave, for recertification every 30 days unless the employee has previously notified the employer that the condition will last for more than 30 days. If an employee s condition has been certified to last more than 30 days, the employer may not request a recertification until that specified period has passed, unless the period is longer than six months (in the case of intermittent leave). An employer may always request recertification every six months in connection with an absence by the employee. An employer may also request recertification before 30 days have passed 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. Examples: Janie takes six weeks of FMLA leave for a cancer operation and treatment and gives her employer a medical certification that states that she will be absent for six weeks. Because her certification covers a six-week absence, her employer cannot ask for a recertification during that time. At the end of the six-week period, Janie asks to take two more weeks of FMLA leave; her employer may properly ask Janie for a recertification for the additional two weeks. Joe takes eight weeks of FMLA leave for a back operation and intensive therapy, and gives his employer a medical certification that states that he will be absent for eight weeks. At the end of the 13

14 eight-week period, Joe tells his employer that he will need to take three days of FMLA leave per month for an indefinite period for additional therapy; his employer may properly request a recertification at that time. Six months later, and in connection with an absence for therapy, the employer may properly ask Joe for another recertification for his need for FMLA leave. Q. May employers require employees to submit a fitness-for-duty certification before returning to work after being absent due to a serious health condition? A. Yes. An employer may have a uniformly applied policy or practice that requires all similarly situated employees who take leave for a serious health condition to submit a certification from the employee s health care provider that the employee is able to resume work. An 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 in the initial designation notice 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 or reduced schedule FMLA leave if the condition for which leave is being taken creates a reasonable safety concern regarding the employee s ability to perform his or her duties. Q. What happens if an employee does not submit a requested medical or fitness-for-duty certification? A. If an employee fails to timely submit a properly requested medical certification (absent sufficient explanation of the delay), FMLA protection for the leave may be delayed or denied. If the employee never provides a medical certification, then the leave is not FMLA leave. 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. MILITARY FAMILY LEAVE PROVISIONS OF FMLA Q. What are the military family leave provisions of the FMLA? A. On January 28, 2008, President Bush signed into law new FMLA leave entitlements for military families. The National Defense Authorization Act amended the FMLA to provide two types of military family leave for FMLA-eligible employees: Qualifying Exigency Leave and Military Caregiver Leave (or Servicemember Family Leave ). [President Obama expanded these entitlements, and further amended the FMLA the following year, on October 28, See Tab 2 for more details.] Q. How do the military family leave provisions define son and daughter? A. The military family leave provisions contain special definitions for son or daughter, (or child ). For qualifying exigency and military caregiver leave, a son or daughter on active duty or call to active 14

15 duty status, is defined as the employee s biological, adopted, or foster child, stepchild, legal ward, or child for whom the employee stood in loco parentis, who is on active duty or call to active duty status, and who is of any age. This is in contrast to other types of FMLA leave, which require a son or daughter to be under 18. Q. Are the certification procedures (timing, authentication, clarification, second and third opinions, recertification) the same for qualifying exigency and military caregiver leave as they are for leave due to a serious health condition? A. The same timing requirements for certification apply to all requests for FMLA leave, including those for the two types of military family leave. Thus, an employee must provide any requested certification 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. Employers may also request certification that, in the case of military caregiver leave, the injury or illness was incurred in the line of duty. The regulations also permit employers to authenticate and clarify medical certifications submitted to support a request for military caregiver leave using the procedures applicable to FMLA leave taken to care for a family member with a serious health condition. Employers are not permitted to require second or third opinions on military caregiver leave. Employers are also not permitted to require recertification for such leave. The Department of Labor developed a optional form (WH-384) for employees use in obtaining certification that meets qualifying exigency leave certification requirements. QUALIFYING EXIGENCY LEAVE Q. What is qualifying exigency leave? A. Qualifying exigency leave is one of the two military family leave provisions. It may be taken for any qualifying exigency arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on covered active duty or has been notified of an impending call or order to covered active duty in the Armed Forces. A broad list of activities are considered qualifying exigencies which permit eligible employees who are family members of a covered military member to take FMLA leave. Qualifying exigencies include: 1) Issues arising from a covered military member s short notice deployment (i.e., deployment on seven or less days of notice) for a period of seven days from the date of notification; 2) Military events and related activities, such as official ceremonies, programs, or events sponsored by the military or family support or assistance programs, and informational 15

16 briefings sponsored or promoted by the military, military service organizations, or the American Red Cross; 3) Certain childcare and related activities arising from the active duty or call to active duty status of a covered military member, such as arranging for alternative childcare; providing childcare on a non-routine, urgent, immediate need basis; enrolling or transferring a child in a new school or day care facility; and attending certain meetings at school or a day care facility if they are necessary due to circumstances arising from the active duty or call to active duty of the covered military member; 4) Making or updating financial and legal arrangements to address a covered military member s absence; 5) Attending counseling provided by someone other than a health care provider for oneself, the covered military member, or the child of the covered military member, the need for which arises from the active duty or call to active duty status of the covered military member; 6) Taking up to five days of leave to spend time with a covered military member who is on short-term, temporary rest and recuperation leave during deployment; 7) Attending to certain post-deployment activities, including attending arrival ceremonies, reintegration briefings and events, and other official ceremonies or programs sponsored by the military for a period of 90 days following the termination of the covered military member s active duty status, and addressing issues arising from the death of a covered military member; and 8) Any other event that the employee and employer agree is a qualifying exigency. Q. What is covered active duty? A. Covered active duty for a member of a regular component of the Armed Forces means duty during deployment of the member with the Armed Forces to a foreign country. For a member of the reserve component of the Armed Forces, covered active duty means duty during deployment of the member with the Armed Forces to a foreign country under a call or order to active duty in a contingency operation as defined in section 101(a)(13)(B) of title 10, United States Code. Q. Are families of Servicemembers in the regular Armed Forces eligible for qualifying exigency leave? A. Yes. The Fiscal Year 2010 National Defense Authorization Act extended the military family leave entitlements to spouses, children, and parents of members of the regular Armed Forces, in addition to members of the National Guard and Reserves. 16

17 Q. How will employees know whether a reservist military member has been called to or is on covered active duty in a contingency operation? A. A military member s active duty orders will generally specify whether he or she is serving in support of a contingency operation. An employee also may confirm whether a particular Servicemember is serving in support of a contingency operation by contacting the appropriate military branch in which the covered military member is serving. Q. Can an employee take qualifying exigency leave to pick up a child from school or attend a school event? A. Yes, in certain limited circumstances. An eligible employee caring for a covered military member s child may use qualifying exigency leave to provide childcare on an urgent, immediate need basis (but not on a routine, everyday basis) where the need to provide the care arises from the active duty or call to active duty status of the covered military member. Accordingly, an employee could use qualifying exigency leave to provide childcare in an emergency, such as a school closure due to inclement weather, if the employee s need to provide the care arises from the active duty status of a covered military member. Qualifying exigency leave could not be used, however, on a routine basis to provide daily childcare after school hours (although it could be used temporarily while making arrangements for such care). Qualifying exigency leave may also be used to attend certain meetings with school staff, if those meetings are necessary due to the active duty or call to active duty status of the covered military member. For example, qualifying exigency leave could be used to attend a meeting with a teacher to discuss behavioral problems related to the child s parent being deployed. Qualifying exigency leave may not be used, however, for attending routine school events, such as birthday parties or plays. Q. What type of notice must an employee provide to his/her employer when taking FMLA leave because of a qualifying exigency? A. An employee must provide notice of the need for qualifying exigency leave as soon as practicable. For example, if an employee receives notice of a family support program a week in advance of the event, it should be practicable for the employee to provide notice to his or her employer of the need for qualifying exigency leave that same day the employee receives notice or at least by the next business day. 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. Q. How much leave can an employee take if they need leave for both a serious health condition and a qualifying exigency? A. Qualifying exigency leave, like leave for a serious health condition, is a FMLA-qualifying reason for which an eligible employee may use his or her entitlement 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 17

18 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. (Note: employees are entitled to 14 additional weeks only for Military Caregiver Leave. ) MILITARY CAREGIVER LEAVE Q. What is military caregiver leave? A. Military caregiver leave (also called Servicemember Family Leave ) is the second of the two military family leave provisions. Military caregiver leave may be taken by an eligible employee to care for a covered Servicemember with a serious injury or illness sustained in the course of active duty. Q. Who is eligible to take military caregiver leave? A. An eligible employee who is the spouse, son, child, parent, or next of kin of a covered Servicemember with a serious injury or illness that was incurred or aggravated in the line of duty may take job-protected FMLA leave to provide care to the Servicemember. Q. Who is a covered Servicemember? A. A covered Servicemember is a current member OR a veteran who was, within the last five years, a member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness incurred in the line of duty on active duty. Q. Are families of Servicemembers in the Regular Armed Forces eligible for military caregiver leave? A. Yes. Military caregiver leave extends to families of seriously injured or ill members of both the regular Armed Forces and the National Guard or Reserves. Q. Can an employee take military caregiver leave to care for a Servicemember who is no longer serving in the military? What about for a retired member of the military? A. Yes. Veterans (as defined in section 101 of title 38, United States Code) who were members of the regular Armed Forces, the National Guard or Reserves at any time during the preceding 5 years before undergoing the medical treatment, recuperation, or therapy for which leave is sought are covered Servicemembers under the military caregiver leave provision. Military caregiver leave also covers seriously ill or injured Servicemembers on the temporary disability retired list (in addition to Servicemembers on the permanent disability retired list). Q. What is a serious injury or illness? 18

19 A. For a current member of the Armed Forces (including a member of the National Guard or Reserves), a serious injury or illness means an injury or illness that was incurred by the member in the line of duty on active duty, or existed before the beginning of the member s active duty and was aggravated by the same and that may render the member medically unfit to perform the duties of the member s office, grade, rank, or rating. A serious injury or illness for a veteran means a qualifying (as defined by the Secretary of Labor) injury or illness that was incurred in the line of duty on active duty in the Armed Forces, or existed before the beginning of active duty and was aggravated by the same, regardless of whether it manifested itself before or after the member became a veteran. Q. How much leave may an employee take to care to for a covered Servicemember? A. 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 covered Servicemember. 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 entitlement for other FMLA-qualifying reasons. Q. May an employee take FMLA leave to both care for a covered Servicemember and for another FMLA qualifying reason during this single 12-month period? A. 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. However, because the 12-month period for military caregiver leave begins on the day the leave begins, an employee who has previously used 12 weeks of leave on another type of FMLA leave, would still have 26 weeks to use for a subsequent caregiver leave. Q. Can an employee carry-over unused weeks of military caregiver leave from one 12-month period to another? A. No. If an employee does not use his or her entire 26-workweek leave entitlement during the single 12-month period of leave, the remaining workweeks of leave are forfeited. After the end of the single 12-month period for military caregiver leave, however, an employee may be entitled to take FMLA leave to care for the covered military member if the member is a qualifying family member under the non-military FMLA provisions and he or she has a serious health condition. Q. Who is a Servicemember s next of kin for purposes of military caregiver leave? A. A covered Servicemember s next of kin is the Servicemember s nearest blood relative, other than their spouse, parent, son, or daughter, in the following order of priority: blood relatives who have been granted legal custody of the Servicemember by court decree or statutory provisions, brothers 19

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