General Provisions

1. What is the Family and Medical Leave Act (FMLA)?

The Family and Medical Leave Act is a federal law which became effective on Aug. 5, 1993. It provides certain employees with up to 12 work weeks of unpaid, job-protected leave per year and requires group health benefits be maintained during the leave. Amendments to the FMLA by the National Defense Authorization Act for Fiscal Year 2008 (NDAA), Public Law 110-181, expanded the FMLA to allow eligible employees to take up to 12 weeks of job-protected leave in the applicable 12-month period for any “qualifying exigency” arising out of the fact that a covered military member is on active duty, or has been notified of an impending call or order to active duty. The NDAA also amended the FMLA to allow eligible employees to take up to 26 weeks of job-protected leave in a “single 12-month period” to care for a covered service member with a serious injury or illness. The U.S. Department of Labor (DOL) has issued detailed regulations interpreting the FMLA.

2. What am I entitled to under FMLA?1

A covered employer must grant an eligible employee up to a total of12 work weeks of unpaid leave in a 12-month period for one or more of the following reasons:

• The birth and care of a newborn child;
• The placement, with the employee, of a child for adoption or foster care and to care for the newly-placed child;
• Care for an immediate family member (spouse, child or parent – but not parent in-law) with a serious health condition;When the employee is unable to work because of a serious health • condition (See Appendix A for definition); and
• Any “qualifying exigency”2 arising out of the fact that the employee’s spouse, son, daughter or parent is a covered military member on or called to active duty.

An employee’s entitlement to family and medical leave for the birth or placement of a child expires 12 months after the birth or placement of the child.3 For other requests for family leave, an employee may use up to12 weeks each year.

3. Which employers must provide this leave?4

All public employers5 regardless of size and private employers who have 50 or more employees who have been on the payroll for 20 or more weeks in a calendar year are required to provide FMLA leave. However, not all employees of a covered employer are eligible for FMLA.

4. Which employees are eligible?6

Eligible employees are those who have worked for the employer:

• A minimum of one year;
• A minimum of 1,250 hours (an average of 25 hours per week) during the 12 months prior to the start of the FMLA leave; and
• At a location where at least 50 employees are employed by the employer within a 75-mile radius.7

Each state, city, county and school district is considered an employer under FMLA for purposes of counting the number of employees to determine if an employee is “eligible” for FMLA leave. For example, if an agency in a city has fewer than 50 employees but the city as a whole employs 50 or more employees, the employee will be eligible.

5. Must the 12 months of employment be consecutive months?8

No. If an employee is maintained on the payroll for any part of a week, including any periods of paid or unpaid leave (sick, vacation, etc.) during which other benefits or compensation are provided by the employer (e.g., workers’ compensation, group health plan benefits, etc.) the week counts as a week of employment.

6. Do the 1,250 hours include paid leave time or other absences from work?9

No. The 1,250 hours include only those hours actually worked, on the job, for the employer. Paid leave, including workers’ compensation, and unpaid leave, including FMLA leave, are not included in the 1,250 hours.

7. How can I find the U.S. Department of Labor regulations?

The regulations can be found in the U.S. Code of Federal Regulations at Title 29 beginning at Sections 825.100. You also can access the regulations and many other compliance assistance materials online at www.dol.gov/whd/fmla/index.htm.

8. Can the employer require me to provide medical certification when requesting leave?10

Yes. An employer may require that you provide a certification issued by your health care provider (see Appendix B for definition of “health care provider”) or that of your son, daughter, spouse or parent to support your request. The employer’s request for certification should be at the time an employee gives notice of the need for leave or within five business days. If the employer has reason to question the appropriateness or duration of the leave they may request certification at a later date. The employee must provide the requested certification to the employer within 15 calendar days after the employer’s request, unless it is not practicable under the circumstances. If the certificate is not complete or sufficient, the employer must provide the employee with seven days to fix the deficiencies and a list of what information is still needed. The certificate must include11:

• name, address, telephone and fax numbers of health care provider and type of medical practice;

• a description of the serious health condition;
• the date that the condition began or treatment became necessary; and
• the expected duration of the condition or treatment.

An employer may also require that an employee’s leave because of a qualifying exigency or to care for a covered service member with a serious injury or illness be supported by a certification.12

9. Can my employer contact my health care provider about my serious health condition?13

If an employee submits a complete and sufficient certification signed by the health care provider, the employer may not request additional information from the health care provider. However, the employer may contact the health care provider for purposes of clarification and authentication of the medical certification after the employer has given the employee an opportunity to fix any deficiencies. The contact must be made by a health care provider, a human resources professional, a leave administrator or a management official. Under no circumstances, however, may the employee’s direct supervisor contact the employee’s health care provider. Also, if the employer wishes to get another opinion, you may be required to obtain an additional medical certification at the employer’s expense.

10. Will I have to sign a medical release as part of a medical certification?14

No. An employer may not require an employee to sign a release or waiver as part of the medical certification process. Providing such authorization is up to the employee. However, if the employee’s certification is not complete and sufficient, and the employee does not fix any deficiencies, the employee’s request for FMLA may be denied if authorization to contact the employee’s health care provider is not given to the employer.

11. What happens to my health care benefits when I am on leave?15

You may continue your coverage under the employer’s group health plan. For example, if the employer pays 80 percent of your health care premium and you pay 20 percent, that same arrangement will continue during the unpaid leave period. Employers and employees may negotiate an arrangement in advance that will accommodate both the employer’s administrative needs and the employee’s financial situation. However, the employer cannot require prepayment. The regulations provide, at a minimum, that if an employee does not meet the agreed upon date for payment of the premium, he or she has a 30-day grace period during which provision of health coverage will not be affected. If coverage lapses for nonpayment of premium coverage, employees still must be restored with the same plan upon return with no restrictions.

If you choose not to continue your health benefits while on FMLA leave, your coverage still must be fully restored, with no restrictions, when you return to work.

12. What happens to my other employee benefits while I am on leave?16

Taking leave will not result in the loss of any employment benefit accrued prior to the date the leave begins. Although the law does not entitle you to continue to accrue seniority or other benefits while on unpaid FMLA leave, unionized employees may negotiate stronger language protecting other benefits such as life insurance and pension credit for employees on unpaid leave.

13. Can I be sure I’ll have a job when I return from leave?17

The law requires that any employee returning from leave be restored to the position they would have been in if they had not taken the leave. This means you can return to your old job or to an equivalent position with the same pay, benefits and other terms and conditions of employment. However, if, for example, your position was terminated during your leave and you would have been laid off, you are not entitled to get your job back. Note: “Key employees,” who are among the highest paid 10 percent of all employees, may be denied reinstatement if necessary to avoid substantial and grievous economic injury to the employer’s operation.18

14. If I decide not to return to work after the leave, will I have to reimburse the employer for the cost of health insurance?19

It depends on the reason you do not return. If the reason is the continuation, onset or recurrence of a serious health condition or certain circumstances beyond your control, you will not have to reimburse the employer. Otherwise, the employer can require reimbursement.