Family & Medical Leave Act FAQs

FMLA stands for Family and Medical Leave Act. This law is designed to help employees balance their work and family responsibilities by allowing them to take reasonable, job-protected, unpaid leave for certain covered reasons.

The Family and Medical Leave Act entitles eligible employees to up to 12 weeks of leave during a 12-month period for certain family and medical reasons. Eligible employees may also take up to 26 weeks of FMLA leave to care for a family member injured or made ill because of military service.

Employers may select one of four options for determining the 12-month period:

• 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.

Military caregiver leave year is measured forward from the date leave begins. State law may also require a particular method be used. The DOL has indicated that if this is the case, you are to use that method for leave under federal law as well.

No. The Family and Medical Leave Act only requires unpaid leave. The law, however, permits an employee to elect, or the employer to require the employee, to use accrued paid leave, such as vacation or sick leave, for some or all of the leave period. When paid leave is substituted for unpaid FMLA leave, it may be counted against the 12- or 26-week FMLA leave entitlement if the employee is properly notified of the designation when the leave begins.

It can. FMLA leave and workers' compensation leave may run concurrently, provided the reason for the absence is due to a qualifying serious health condition and the employer properly notifies the employee in writing that the leave will be counted as FMLA leave. While employees may substitute accrued paid leave for unpaid FMLA leave, because an absence under workers' comp is not unpaid, the provision for substituting paid leave is not applicable. Employers and employees may agree, however, where state law allows, to have paid leave supplement workers comp benefits, such as where workers' compensation provides replacement income for only two-thirds of an employee's salary.

The Uniformed Services Employment and Reemployment Rights Act (USERRA) provides reemployment rights for employees who plan to engage in, are engaged in, or have been engaged in military duty. FMLA provides job-protected leave for employees who have family members who are engaged in military service. While these two laws deal with separate military-related employment issues, they do have some overlapping provisions. Find out more.

In some situations, the employer may count leave as FMLA leave retroactively. Remember, the employee must be notified in writing that an absence is being designated as FMLA leave. If the employer failed to timely designate leave as FMLA leave, leave may be designated as FMLA leave retroactively only if the retroactive designation results in no harm to the employee, or the employee and employer agree to retroactive designation, and appropriate notices are given to the employee.

Subject to certain limitations, employers may deny the continuation of FMLA leave due to a serious health condition if employees fail to fulfill any obligations to provide supporting medical certification. The employer may not, however, otherwise require employees to return to work early by, for example, offering them a light-duty assignment.

Employers with established policies regarding outside employment while on paid or unpaid leave may uniformly apply those policies to employees on FMLA leave. Otherwise, the employer may not restrict employee activities. The protections of FMLA will not, however, cover situations where the reason for leave no longer exists, where the employee has not provided required notices or certifications, or where the employee has misrepresented the reason for leave.

Yes, but only to the employee. Employers may ask questions to confirm whether the leave needed or being taken qualifies for FMLA purposes and may require periodic reports on employee status and intent to return to work after leave. Also, if the employer wishes to obtain another opinion, employees may be required to obtain additional medical certification at the employer's expense. Employers may also request recertifications in some situations. The employer may contact the employees' health care provider to clarify information in the medical certification or to confirm that it was provided by the health care provider. The inquiry may not seek additional information regarding employees' health condition or that of a family member.

One of the cornerstones of the FMLA is job protection. It is unlawful for any employer to interfere with or restrain or deny the exercise of any right provided under this law. Employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions; nor can FMLA leave be counted under "no-fault" attendance policies. Under limited circumstances, an employer may deny reinstatement to work - but not the use of FMLA leave - to certain highly-paid, salaried ("key") employees.

No. Nor may the employer take any other adverse employment action on this basis. It is unlawful for any employer to discharge or otherwise discriminate against an employee for opposing a practice made unlawful under FMLA.

In all circumstances, it is the covered employer's responsibility to designate leave taken for an FMLA-qualifying reason as FMLA leave. The designation must be based upon information furnished by the employee. If the employer is covered, employee is eligible, the reason for leave qualifies, and the employer is put on notice of the need for leave, the absence is to be designated and counted.

Employees are eligible to take FMLA leave if they have worked for their employer for at least 12 months, and have worked for at least 1,250 hours in the 12 months before leave is to begin, and work at a location with at least 50 company employees within 75 miles.

No. The 12 months do not have to be continuous or consecutive; all time worked for the employer is counted. You don't, however, need to consider employment before a break in service of seven or more years.

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

The individual 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:

• 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.

If the employer is covered, and employees are "eligible" and have met FMLA's notice and certification requirements (and they have not exhausted their FMLA leave entitlement for the year), they may not be denied FMLA leave as long as the reason for leave qualifies.

An employee's spouse, children (son or daughter), and parents are considered family members for most provisions of FMLA. However, "next of kin" (closest blood relative) is also added when it comes to military caregiving. The term "parent" does not include a parent "in-law" for federal FMLA. The terms "son" or "daughter" do not include individuals age 18 or over unless they are incapable of self-care because of mental or physical disability that limits one or more of the major life activities as those terms are defined under the Americans With Disabilities Act (ADA). Individuals who stand or stood in loco parentis (as a parent) are also included. There need not be a biological or legal relationship between the family members in situations involving in loco parentis.

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.

Yes. Pregnancy disability leave or maternity leave for the birth of a child would be considered qualifying FMLA leave for a serious health condition and may be counted in the 12 weeks of leave so long as the employer properly notifies the employee in writing of the designation.

No. Employees do not have to provide medical records. The employer may, however, request that, for any leave taken due to a serious health condition, employees provide a medical certification confirming that a serious health condition exists.

Yes. FMLA permits employees 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 a serious health condition.

Yes, even if they are part time, are temporary, are not a U.S. Citizen (or are not authorized to work in the U.S.), or took or will take military leave. They need to be working in the U.S., however.

If you do not otherwise keep track of how many hours an exempt employee normally works, you will have the burden of trying to disprove an employee’s claim regarding how many hours he or she worked. If tested, the benefit of the doubt will go to the employee.

You and the exempt employee are generally expected to have a written agreement on the employee’s normal schedule or average hours worked each week. This agreement would be the basis of determining the employee’s FMLA leave entitlement.

As a general rule, the FLSA requires that if exempt employees perform any work during the workweek, they must be paid the full salary amount. You are not, however, required to pay exempt employees the full salary for weeks in which they take unpaid FMLA leave. You may pay a proportionate part of the full salary for time actually worked. For example, if an exempt employee who normally works 40 hours per week uses four hours of unpaid leave under the FMLA, you may deduct 10 percent of the exempt employee's normal salary for that week.

Yes, you may convert an exempt employee to hourly during a period of intermittent or reduced schedule FMLA leave. Determining the hourly rate could have some challenges. Again, this is where having a written agreement regarding the employee’s normally worked schedule comes in handy. You need to have something supporting the rationale behind the hourly rate determination.

Note: between converting an employee to hourly or docking the exempt employee’s pay, the latter is usually preferable. Of course, you are not mandated to dock an employee’s pay or move them to hourly; you may choose to continue to pay them their full salary while on intermittent FMLA leave.

When it is medically necessary, employees have the right to take FMLA leave intermittently —taking leave in separate blocks of time for a single qualifying reason, or on a reduced leave schedule — reducing their usual weekly or daily work schedule. When leave is needed for planned medical treatment, however, the employee must make a reasonable effort to schedule treatment so as not to unduly disrupt your organization’s operation.

Leave to care for or bond with a healthy newborn child or for a newly placed adopted or foster child may be taken intermittently or on a reduced schedule basis only with the employer’s approval. The leave must also conclude within 12 months after the birth or placement.

Employees needing intermittent/reduced schedule leave for foreseeable medical treatments must work with their employers to schedule the leave so as not to 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 accommodates recurring periods of leave better than the employee’s regular job. Employers may not transfer an employee if the need for leave is not foreseeable.

Every now and then, employees like to stretch their weekends or holidays. If this happens, review the certification to see if the employee’s leave matches the information. If not, you may request a recertification and include a record of the employee’s absence pattern, asking the doctor whether the employee’s condition and need for leave is consistent with such a pattern.

Employees are required to provide notice as soon as practicable under the facts and circumstances of the particular case. Generally, it should be practicable for the employee to provide notice of leave within the time prescribed by your usual and customary notice requirements applicable to such leave.

Yes, an employee may take FMLA in increments and never use all 12 weeks of leave in a 12-month leave year period. In a new 12-month leave year period, the employee would be entitled to a new batch of 12 weeks of leave, assuming he or she otherwise meets the eligibility criteria.

Yes. If an employee would normally be required to work overtime, but is unable to do so because of an FMLA-qualifying reason that limits the employee’s ability to work overtime, the hours which the employee would have been required to work may be counted against the employee’s FMLA entitlement. Voluntary overtime hours that an employee does not work due to an FMLA-qualifying reason may not, however, be counted against the employee’s FMLA leave entitlement.

No. You may make deductions from the employee’s salary for any hours taken as intermittent or reduced schedule FMLA leave within a workweek without affecting the employee’s exempt status.