Family & Medical Leave Act (FMLA) FAQs
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?
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.
Can the employer count time on maternity leave or pregnancy disability as FMLA leave?
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.
If an employer fails to tell employees that the leave is FMLA leave, can the employer count the time they have already been off against the 12 weeks of FMLA leave?
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.
Who is considered a "family member" for purposes of taking FMLA leave?
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.
May an employee take FMLA leave for visits to a physical therapist, if the doctor prescribes the therapy?
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.
Which employees are eligible to take FMLA leave?
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.
Do the 12 months of service with the employer have to be continuous or consecutive?
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.
Do the 1,250 hours include paid leave time or other absences from work?
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.
How do I determine if an employee has worked 1,250 hours in a 12-month period?
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.
Do employees have to give the employer medical records for leave due to a serious health condition?
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.
May employers require employees to return to work before leave is exhausted?
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.
Are there any restrictions on how employees spend time while on leave?
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.
May an employer make inquiries about an employee's leave during an absence?
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.
Can employers refuse to grant employees FMLA leave?
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.
Do employees lose their jobs if they take FMLA leave?
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.
Are there other circumstances in which employers may deny employees FMLA leave or reinstatement to their jobs?
In addition to denying reinstatement in certain circumstances to "key" employees, employers are not required to continue FMLA benefits or reinstate employees who would have been laid off or otherwise had their employment terminated had they continued to work during the FMLA leave period as, for example, due to a general layoff. Employees who give unequivocal notice that they do not intend to return to work also lose their entitlement to FMLA leave.
Employees who are unable to return to work and have exhausted their 12 weeks of FMLA leave in the designated "12-month period" no longer have FMLA protections of leave or job restoration. Such employees might, however, have protections under the Americans with Disabilities Act (ADA).
Under certain circumstances, employers who advise employees experiencing a serious health condition that they will require a medical certificate of fitness for duty to return to work may deny reinstatement to an employee who fails to provide the certification, or may delay reinstatement until the certification is submitted.
May employees be fired for complaining about a violation of FMLA?
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.
Under what circumstances is leave designated as FMLA leave and counted against the employee's total entitlement?
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.