Family and Medical Leave Act (FMLA)

The Family and Medical Leave Act (FMLA) was passed in 1993. Major revisions to the Department of Labor’s FMLA regulations came into effect in January 2009.

General FMLA Information

FMLA Rights
FMLA law lets workers take up to 12 weeks of unpaid leave in a calendar year for family or medical reasons. When employees gets back from FMLA leave they are to get back their original job or a job equal in terms of pay, benefits and responsibility. FMLA leave time does not count toward certain bonuses, like awards for quantitative performance or attendance.

FMLA Leave Eligibility
Employees eligible for FMLA leave must have worked:

  • At least one year for the company.
  • A minimum of 1,250 hours worked in the year.
  • In a location where the employer had a minimum of 50 employees within a 75-mile radius.

FMLA Leave Types

  • Continuous-up to twelve full weeks.
  • Intermittent, as needed based on the employee’s or the employee’s family member’s medical condition, up to 12 weeks per year.
    • Intermittent leave can be taken in the smallest time increment the company measures
    • During intermittent FMLA leave, employees can be transferred to an alternative job with equal pay and benefits so their leave does not impact company operations. When leave is finished, employee must be returned to their original job or job equal in terms of pay, benefits and responsibility.
    • Due to the high number of FMLA abuse cases regarding intermittent leave; employers need to take special care with intermittent leave.
    • Employers can ask for multiple re-certifications every 30 days if FMLA abuse is suspected.
    • Reduced schedule leave can be awarded where the employee’s schedule is changed, usually from full to part-time.

FMLA Medical Conditions and Family Care

Medical Conditions and Family Care covered by FMLA
FMLA covers both physical and mental health conditions for both employees and care for certain family members in five major areas:

  • Medical conditions that do not allow the employee to complete necessary job functions.
  • Care for a family member’s (father, mother, children under 18 in most cases husband, wife) serious medical condition
  • Pregnancy, pre-natal care, birth, care after birth, and the adoption of a child. (Leave has to be taken within 12 months of the birth or adoption.)
  • Emergency events surrounding military duty (attending military events, arranging childcare, legal and/or financial matters before military deployment, military counseling)
  • If a family member has a serious medical condition earned in active duty with the Armed Forces, the employee is eligible for up to 26 weeks of FMLA leave.

Serious Medical Condition
FMLA regulations define “serious medical condition” as an illness that prevents an employee from performing his or her job or their family member from performing daily activities. The medical condition must require ongoing medical care or overnight stays in a medical facility.

Ongoing Medical Mare under FMLA regulations
Ongoing medical care is defined by FMLA regulations as care requiring:

  • A minimum of three consecutive days absent from work with: 
    • Two visits to a medical care provider, the first visit must occur within 7 days of the first absence and the second visit within 30 days of the first absence
    • One visit to a medical care provider with continuing treatment (e.g. prescription medicine, physical therapy)
  • Any period of incapacity due to a chronic condition that requires two or more visits per year to a medical provider
  • Any period of incapacity due to birth or pre-natal care
  • Any period of incapacity due to a permanent or long-term condition

Conditions not covered under FMLA
FMLA leave cannot be used for minor temporary conditions like colds, flu, muscle sprains, poison ivy, or minor dental care.

FMLA Documentation, FMLA Certification and Mandated Timelines

Required FMLA certification
Employers must be given a medical certification of the illness before FMLA leave is granted.

Information included in FMLA Medical Certification
The FMLA certification form includes:

  • Medical certification of the condition from a licensed medical professional
    • Physicians (M.D. or D.O.)
    • Dentists
    • Clinical Psychologists
    • Podiatrists
    • Optometrists
    • Nurse Practitioners
    • Nurse Midwives
    • Clinical Social Workers
    • Any health care provider recognized by the employer or the employer’s health care benefits manager
    • Christian Scientist Practitioners listed with the First Church of Christ, Scientist
    • Chiropractors (in limited cases)
  • Length of treatment for the condition

Employee FMLA Certification Timelines
The employee must be given a minimum of 15 days to obtain the initial FMLA leave certification.

Employer FMLA Certification Timelines
The employer has five days to classify the leave request as FMLA-connected or not.

The employer can than ask for a second medical certification from the company’s doctor at the company’s expense. If the employer’s doctor and employee’s doctor do not concur, a third doctor can be consulted at the company’s expense.

The employer can ask for medical recertifications every 30 days during the treatment to re-evaluate FMLA leave. The employer can ask for re-certification more often than that if the circumstances of the employees condition have changed, or if the employer has information leading it to suspect the employee is not telling the truth about the reason for leave. Employers can demand two FMLA certifications a year for “lifetime” chronic illnesses (diabetes, HIV).

Employers can communicate directly with medical providers to clarify questions about any certification. The employee’s direct supervisor may not contact the medical provider. However, the HR department, the company doctor, or another senior executive may do so.

Employer/Employee Responsibilities under FMLA

Employee Responsibilities under FMLA
Employees may be required to provide:

  • 30 days notice for foreseeable FMLA leave (e.g. scheduled surgery, scheduled doctor’s appointments,)
  • Notice “as soon as practicable” (generally oral notice to the employer in one to two days) when not foreseeable (e.g. bus accident, heart attack)
  • Notice within 2 business days that the absence was for an FMLA reason when the employee calls out but does not state the absence is FMLA-related.
  • Sufficient medical information to make the decision about FMLA leave eligibility.

Employer responsibility under FMLA
Employers are responsible to:

  • Approve or disapprove the FMLA leave within five days.
  • Track time worked to determine FMLA eligibility.
  • Track FMLA leave time used.
  • Provide COBRA health insurance coverage during FMLA leave
  • Inform the employee if the use of paid leave is required before FMLA time is used.
  • Inform the employee of the right to use paid time off (vacation, sick, etc) instead of FMLA leave.
  • Make information available about FMLA for employees ( FMLA policies in the employee handbook, FMLA posters).

Employers can’t interfere with approved FMLA leave. Workers who take FMLA leave cannot be discriminated against when they return.


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