Family / Medical Leave (FMLA)
The Family and Medical Leave Act (FMLA) was created to help employees balance the demands of the workplace with the needs of their families. The Act requires covered employers to provide reasonable unpaid leave to employees for certain family and medical reasons. Employees are entitled to a total of 12 work weeks of unpaid job-protected leave during a 12 month period. Read below to learn more about the leave employees are entitled to under the FMLA.
26. Under my union contract, I am entitled to take up to 26 weeks of paid sickness/accident leave. Can I take all of this leave at once, even though the FMLA only requires my employer to provide 12 weeks of leave?
Under federal law and some state laws, certain employees have the right to take up to 12 weeks of unpaid leave per year (any 12-month period) for the following reasons:
- you have a serious health condition that keeps you from doing your job;
- you need to care for a sick child, spouse, or parent with a serious health condition;
- you need to care for a newborn child, newly adopted child, or foster child.
- you have a family member who is a covered military member on active duty (or has been notified of an impending call or order to active duty) in support of a contingency operation and need time to manage their affairs
In addition, certain eligible employees have the right to take up to 26 weeks of unpaid leave per year (any 12-month period) to care for a covered service member with a serious injury or illness incurred in the line of duty on active duty.
If you are eligible, you may take family leave (leave to care for someone in your family) or medical leave (leave to seek care for or recover from your own serious health condition) without losing your job.
Under the law, your job is protected during your leave. When you return to work, your employer must give you either the same job you had before your leave, or a position with equivalent benefits, pay, working conditions, and seniority. Your employer must continue to pay for your health insurance coverage during your leave as it normally would have during your employment.
If you qualify for a family or medical leave, you have the right to take that leave free from harassment or discrimination. Your employer cannot interfere with your right to take leave, discriminate against you for requesting information about your rights, or discriminate against you for taking a leave.
The Family and Medical Leave Act (FMLA) enacted in 1993, is the primary federal law protecting the right to take family or medical leave without losing your job and health insurance benefits or suffering retaliation. The FMLA guarantees an employee, male or female, who has been working at least a year for a company with 50 or more employees the right to job-protected, 12-week, unpaid leave to recover from a serious medical condition or to care for a newborn, a newly adopted child, or a seriously ill child, parent or spouse. The FMLA guarantees that at the end of the leave you will be given the same job you left or another job equivalent in pay, benefits, and other terms and conditions. During the leave, the employer is required to maintain your health insurance benefits if it would have if you hadn’t taken leave. The purpose of the FMLA is to allow employees to balance their work and family life by taking reasonable unpaid leave for certain family and medical reasons.
In January 2009, the FMLA was updated to include new military family leave entitlements. These changes included allowing eligible employees to take up to 26 weeks of unpaid leave to care for a service member with a serious illness or injury incurred in the line of duty. Also, the changes allow family members of covered military members to take up to 12 weeks of unpaid leave to manage their affairs while the member is on active duty.
Other federal laws that may also protect you when requesting a family or medical leave are Title VII of the Civil Rights Act of 1964, which includes the Pregnancy Discrimination Act of 1978, (see section 2000e(k) for the specific language concerning pregnancy) and the Americans with Disabilities Act (ADA). Title VII makes it illegal to discriminate on the basis of sex, which includes pregnancy discrimination, and may protect employees who wish to take leave for pregnancy-related reasons. The ADA makes it illegal to discriminate on the basis of disability, and may protect employees who wish to take leave for disability-related reasons.
On April 7, 2016, the federal government finalized a policy that extends federal employees with same-sex spouses the same rights under the Family and Medical Leave Act that previously had only applied to opposite-sex marriages. This change complied with the 2013 Supreme Court Decision that declared gay married couples must receive the same federal benefits as a heterosexual couple. The Office of Personnel Management also extended the Federal Long Term Care Insurance Program eligibility by giving opposite-sex domestic partners, the same eligibility it previously had applied only to same-sex partners.
In spite of this change, the Office of Personnel Management revoked a policy that allowed children of same-sex partners, although not the partners themselves, to be covered under the federal employee health insurance program and under a separate program for vision and dental care. It also canceled plans to extend similar coverage under the federal employee life insurance program’s family coverage option.
Not everyone is protected by the FMLA. Both you and your employer must meet certain qualifications.
Employer requirements: your employer must have 50 or more employees on the payroll for 20 work weeks during the current or preceding calendar year. Employees who work for your employer within a 75-mile radius of your worksite count toward the 50-employee total.
- To determine whether your employer is covered, find out how many employees are on the payroll, including those on leave and working part-time.
- If your location does not have 50 employees, find out whether your company has other employees at locations within a 75-mile radius.
Employee requirements: you must have worked for your employer for at least 12 months and for at least 1,250 hours during the period immediately preceding the commencement of the leave.
- If you worked 25 or more hours for 50 weeks in a year, you would have worked the required total of 1,250 hours. Only actual time worked counts; other time for which you are paid, such as vacation, holidays and sick leave, does not count towards the required 1,250-hour total.
- The 12 months an employee must have been employed by the employer need not be consecutive months. The break in employment can be no more than 7 years unless the break is due to military service obligation or according to a previous written agreement with the employer.
While certain exceptions exist, most employees who meet these two conditions will qualify for leave under the federal FMLA. Your state may have different requirements for coverage under state law.
A “serious health condition” is an illness, injury, impairment or physical or mental condition that involves:
- in-patient care in a hospital, hospice or residential medical care facility; or
- continuing treatment by a health care provider.
In general, if you or your family member are
- incapacitated for more than three consecutive days,
- seeing a doctor or other health care provider at least twice within 30 days (the first visit must take place within 7 days of the incapacity), and
- under a regimen of continuing treatment by the health care provider,
you or your family member are considered to have a condition that “involves continuing treatment by a health care provider,” and are thus protected under the FMLA even if no hospitalization is involved.
However, a regimen of continuing treatment that includes the taking of over-the-counter medications or bed-rest or other similar activities that can be initiated without a visit to a health care provider is not, by itself, sufficient to constitute a regimen of continuing treatment for the purposes of FMLA leave.
Some examples of conditions generally considered “serious” are: heart conditions, strokes, back conditions, injuries caused by accidents, pregnancy and related conditions such as miscarriages and morning sickness, cancer, asthma, pneumonia, diabetes, epilepsy, serious infections, Alzheimer’s, and arthritis.
There are many other health conditions not on this list that could also be considered serious health conditions.
Yes. The FMLA is not merely a maternity or child care leave provision, but covers leave to care for other family members as well. You may take leave to care for the following family members when they have a serious health condition:
- your parent,
- your child, or
- your spouse
The FMLA definition of parent includes anyone who is a biological or adoptive parent, or who acted as your parent when you were a child. The definition does not include in-laws. Your spouse may be eligible to take leave to take care of his or her own parents, but you cannot take FMLA leave even if your spouse is not eligible for FMLA leave or is the family’s highest wage-earner.
The FMLA definition of child includes a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in a parental capacity, who is either under age 18 or an adult child who is incapable of caring for himself or herself.
The FMLA definition of spouse includes a husband or wife as defined or recognized under state law for purposes of marriage in the State the marriage was entered into. , including common law marriage in states where it is recognized, and same sex marriages The federal law does not include in the definition of spouse an unmarried partner, domestic partner, or common law spouse in states where common law marriages are not recognized.
Yes. Like biological parents, adoptive and foster parents may take up to 12 weeks of leave to care for an adopted child when she or he comes into your home. (This also applies to a child you recently assumed parental responsibilities for, such as a foster child.) The child does not have to be a newborn or infant for you to request leave.
Unlike some biological parents, depending on the employer, adoptive parents do not have the ability under FMLA to use any paid sick leave they have accrued to cover part of their unpaid leave when they adopt a newborn. They can, however, use any paid annual leave they have accrued for that purpose.
Under the law, the right to take family leave when a child is adopted occurs when the child is placed with you. You do not have to wait for the adoption to be finalized, which may take months or even years after you first have custody of the child, to take leave. Employers covered by FMLA are required to grant leave before the actual placement or adoption of a child if an absence from work is required for the placement for adoption or foster care to proceed. For example, you may be required to attend counseling sessions, appear in court, consult with your attorney or the doctor(s) representing the birth parent, or submit to a physical examination.
All leave must be concluded within 12 months of your child’s placement in the home, even if the adoption is not yet final.
7. I recently learned that I am pregnant, and I want to take as much FMLA leave as I am allowed. Can I take twelve weeks of leave during my pregnancy, and another twelve weeks after my child is born?
Not under the FMLA. Although you may take medical leave before your child is born and/or family leave after your child is born, you are only allowed a maximum leave of 12 weeks under the FMLA. While your state, union contract, and/or employer’s policy may permit a longer leave, your FMLA leave cannot exceed 12 weeks in a one-year period, regardless of whether it is taken before or after your child is born. All leave relating to childbirth must be taken within one year of the birth.
The term “pregnancy” or “maternity” leave is often used to refer to two different types of leave covered by the FMLA:
- medical or disability leave, which consists of the time a woman is unable to perform work because of pregnancy, childbirth and their aftermath, and
- child care or child-rearing leave, which consists of the time after birth or adoption during which a parent (of either sex) cares for the child.
A female employee may take leave for either or both reasons, for up to the 12-week total. However, other types of leave not related to childbirth are allowed, such as leave to care for a parent, older child, or spouse, as well as leave to care for medical conditions other than pregnancy. Male employees can also take FMLA leave, either for child-care or child-rearing reasons after birth or adoption, or for the other reasons allowable under the law. Thus, while most pregnancy leave is FMLA-eligible leave, leave does not have to be pregnancy-related to be covered by the FMLA.
Some states, however, have leave laws that specifically provide for as pregnancy or maternity leave. In some states, this leave can be taken in addition to FMLA and/or the state’s own version of the FMLA.
Yes. While a male employee would not be eligible to take medical or disability leave for pregnancy reasons unless he was caring for a spouse, child or parent incapacitated by pregnancy, male employees are eligible to take child care or child-rearing leaves following the birth or adoption of a child, as well as any other kind of FMLA-eligible leave.
Each parent can take a leave at the same time, at overlapping times, or consecutively, as long as each parent’s leave occurs within one year of the child’s birth or placement for adoption. The parents do not have to be married to each other to be eligible for leaves. However, if both parents work for the same employer, your employer may limit your combined parental leave to 12 weeks during a 12-month period.
Like female employees, male employees are eligible for 12 weeks of leave and cannot be discriminated against for exercising these rights under the FMLA, even if they have not previously been the family’s primary caregiver.
10. I need to care for a family member who is part of the military and was injured in the line of duty. Does the FMLA apply to me?
Under the Military Caregiver Leave (also known as Covered Servicemember Leave), if you have a family member who is a covered servicemember, you will be able to take up to 26 weeks of leave in a single 12-month period to care for the servicemember with a serious injury or illness that was incurred in active duty. This is a special provision that extends FMLA job-protected leave beyond the normal 12 weeks of leave.
This provision also extends FMLA protection to additional family members (i.e. next of kin) beyond those who may take FMLA leave for other qualifying reasons. “Next of kin” is defined as the nearest blood relative other than the servicemember’s spouse, parents, or son or daughter; it includes blood relatives who have been granted legal custody of the servicemember, brothers and sisters, grandparents, aunts and uncles, and first cousins.
11. I have a family member who is part of the National Guard and Reserves and need to take time off to help manage his/her affairs. Does the FMLA apply to me?
Under the Qualifying Exigency Leave, if you have a family member who is a member of the National Guard and Reserves, you will be able to take up to 12 weeks of leave in a single 12-month period to use for any “qualifying exigency” arising from the fact that the family member is on active duty is or called to active duty in support of a contingency operation.
Covered military members include your spouse, son, daughter, or parent. A “qualifying exigency” is defined by a number of broad categories: (1) short-notice deployment; (2) military events and related activities; (3) childcare and school activities; (4) financial and legal arrangements; (5) counseling; (6) rest and recuperation; (7) post-deployment activities; and (8) additional activities not encompassed in the other categories but agreed to by you and your employer.
If you want to take FMLA leave, the law requires that you provide the following information to your employer:
- you provide 30-day advance notice of the need to take FMLA leave when the need is foreseeable (such as leave for a new child, or for a planned medical treatment for yourself or a family member); or
- you provide notice “as soon as practicable” when the need to take FMLA leave is not foreseeable. “As soon as practicable” generally means at least verbal notice to the employer within one or two business days of learning of the need to take FMLA leave;
The law also requires that:
- you provide sufficient information for the employer to understand that you need leave for FMLA-qualifying reasons. In other words, you do not need to mention FMLA when requesting leave, but must only explain why the leave is needed; and
- where the employer was not made aware that an employee was absent for FMLA reasons and the employee wants the leave counted as FMLA leave, the employee should give timely notice (generally within two business days of returning to work) that leave was taken for an FMLA-qualifying reason.
Employers can require written notice of the need for leave consistent with their customary procedure requirements. Employers may also require employees to provide medical certification supporting the need for leave due to a serious health condition that is affecting the employee or an immediate family member. Employers can also require second or third medical opinions, at the employer’s expense, and periodic recertification that the need for leave (the serious health condition) still exists; employee authorization is required for the release of medical information to second or third opinion health care providers. You may also be asked during FMLA leave to provide periodic reports regarding your status and intent to return to work.
In giving notice, you must give enough information for your company to know that the leave is for birth or adoption, for your own serious health condition, or for the serious health condition of your child, spouse, or parent. There are no magic words required; your company is supposed to know when the FMLA applies. In your request for leave, you don’t have to give detailed personal information, although your employer may request more information through the medical certification. To be safe, however, it does not hurt to mention that you want leave under the “FMLA,” so that your employer can’t say that it didn’t know you were requesting FMLA leave.
If you do not provide the proper notice, your employer may deny leave, delay the start of leave, or terminate you for taking leave without authorization, so it is important that you comply with notice and certification requirements under FMLA in order to take advantage of your rights under the law.
In some situations, such as an accident to a family member, a previously undiagnosed illness causing a medical emergency, or premature labor, you either may not be able to give advance notice or take leave according to the schedule you had originally planned. In these situations, you cannot be denied leave on the basis of inadequate notice as long as you give notice “as soon as practicable.”
This means that you should give notice within one or two business days of learning of the need for leave if you will not be returning to work immediately. If you return to work without having previously given notice that your leave was for FMLA reasons, you should notify your employer within two business days that you were absent for FMLA-eligible reasons and that you would like your leave designated as FMLA leave.
If an employer is covered by the FMLA, it is required to:
- post a notice explaining the FMLA’s provision and providing information concerning the procedures for filing complaints of violations;
- include information about employee rights and obligations under FMLA in employee handbooks or other written material; or
- (if a handbook or other written materials do not exist,) provide general written guidance about employee rights and obligations under FMLA whenever you request leave; and
- (once you give notice that you wish to take FMLA leave,) notify you of whether you are eligible to take FMLA leave.
The employer’s notice must be provided to you within five business days after receiving notice from you of your need for leave. The employer’s notice should include the following:
- a Designation Notice – a written notice designating the leave as FMLA leave and indicating that the leave will be counted against your annual FMLA leave entitlement;
- a Notice of Eligibility and Rights and Responsibilities – an explanation of the specific expectations and obligations of the employee and any consequences of the failure to meet these obligations;
- any requirements for you to furnish medical certification and the consequences of failing to do so;
- your right to elect to use accrued paid leave for unpaid FMLA leave and whether the employer will require the use of paid leave, and the conditions related to using paid leave;
- any requirement for you to make co-premium payments for maintaining group health insurance, and the arrangement for making such payments;
- any requirement for you to present a fitness-for-duty certification before being restored to your job;
- rights to job restoration upon your return from leave;
- your potential liability for reimbursement of health insurance premiums paid by the employer during the leave if you fail to return to work after taking FMLA leave; and
- whether you qualify as a “key” employee and the circumstances under which you may not be restored to your job following leave. There is more information on “key employees” below.
No. The FMLA requires that you are allowed to take unpaid leave without fear of punishment or losing your job; it does not require that leave be paid. You may be eligible for paid leave during all or part of the same time period you are eligible for FMLA leave by using compensated sick leave, vacation leave, annual leave or short-term disability leave, but that is not required under the FMLA. This lack of paid leave prevents many employees from exercising their rights to FMLA leave, as you may be financially unable to take unpaid leave. However, federal law has not been changed to provide for compensation.
You may generally choose to use, or your employer may require you to use, accrued paid leave to cover some or all of the FMLA leave taken.
You may also choose, or your employer may require, the substitution of accrued paid vacation or personal leave for any of the situations covered by FMLA. The substitution of accrued sick or family leave is limited by the employer’s policies governing the use of such leave, but is not forbidden under the FMLA. If you do elect to use paid leave in place of unpaid leave, your employer can require you to follow the requirements under the paid leave policies but still have the time count toward your FMLA allotment.
No. Even if you have accumulated over 1250 hours of work in a time period that is less than one year, you must also have worked for one year (12 months) to be eligible. You may be eligible for other types of leave or benefits under your employer’s policies, a union contract or state law, but you are not eligible for FMLA leave. The 12 months do not have to be continuous or consecutive, however. All time worked for the employer is counted toward the 12 months.
Therefore, if you are not eligible to take FMLA leave when the need first arises, but later you become eligible, you may take leave once you’re eligible. For example, if you are diagnosed with cancer after working for an employer for nine months, and use accumulated sick time to cover your initial treatment, you could take FMLA leave after three more months of employment to accommodate chemotherapy appointments or other continued treatment.
You can take up to a total of 12 weeks in a 12-month period. Your employer 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 your “anniversary” date;
- the 12-month period measured forward from the date your first FMLA leave begins; or
- a “rolling” 12-month period measured backward from the date you use FMLA leave.
If you are family member of a military service member, you can take up to a total of 26 weeks in a 12-month period.
Upon return from FMLA leave, you must be restored to either:
- your original job, or
- an equivalent job with equivalent pay, benefits, and other terms and conditions of employment.
In addition, your use of FMLA leave cannot result in the loss of any employment benefit that you earned or were entitled to before using FMLA leave, nor can it be counted against you under a “no fault” attendance policy. However, if you are a “key employee” under FMLA, your employer may not have to keep your job or a similar position open for you. See question 21 below.
A covered employer is required to maintain your group health insurance coverage while you are on FMLA leave, whenever such insurance was provided before the leave was taken and on the same terms as if you had continued to work. If you paid for all or part of your health insurance premiums before you were on leave, you will need to make arrangements to continue payment during your leave. If your employer paid all or part of your premiums, it will need to continue payment according to the same terms. If your family members are usually covered by your health insurance policy, your employer must continue their coverage during your leave as well.
In some instances, your employer may recover premiums it paid to maintain health coverage for you if you fail to return to work from FMLA leave. However, if the reason you do not return to work is your own or your family member’s serious health condition or other circumstances beyond your control (such as a spouse’s job transfer), your employer cannot collect from you the health insurance premiums it paid on your behalf.
Other benefits, including cash payments you have chosen to receive instead of group health insurance coverage, need not be maintained during periods of unpaid FMLA leave.
For non-union employees, certain types of earned benefits, such as seniority or paid leave, need not continue to accrue during periods of unpaid FMLA leave provided that such benefits do not accrue for employees on other types of unpaid leave, such as disability leave or sabbaticals. For example, you cannot lose what seniority you have already accumulated, but your failure to accrue further seniority during your leave may cause you to lose ground to other employees who have not taken leave. Union employees often continue to accrue seniority and other paid benefits during periods of unpaid FMLA leave, even if the collective bargaining agreement doesn’t explicitly provide for the continuation of benefits. Consult your union for additional information if you are unsure about the status of your benefits.
For other benefits, such as elected life insurance coverage, you and your employer may make arrangements to continue benefits during periods of unpaid FMLA leave. Your employer may choose to continue such benefits to ensure that you will be eligible to be restored to the same benefits upon returning to work. At the conclusion of the leave, your employer may recover only your share of premiums it paid to maintain non-health benefits during unpaid FMLA leave.
In addition to denying reinstatement in certain circumstances to “key” employees (more information below), employers are not required to continue FMLA benefits or reinstate you if you would have been laid off or otherwise had your employment terminated had you continued to work during the FMLA leave period. This could happen, for example, if there was a general layoff.
Employees who give clear notice that they do not intend to return to work when they leave lose their entitlement to FMLA leave. Therefore, do not give notice before your decision to leave the company is final because if you change your mind, you may no longer be eligible for reinstatement. If the reason you do not return to work is because of your own or your family member’s serious health condition or other circumstances beyond your control (such as a spouse’s job transfer), your employer cannot collect from you the health insurance premiums it paid on your behalf during the leave.
If you are unable to return to work and have exhausted your 12 weeks of FMLA leave in the designated 12 month period, you no longer have FMLA leave protections or the right to return to your job. However, your employer may voluntarily extend your leave or guarantee you can return to your job even though it is not required under the FMLA.
Under certain circumstances, if you are experiencing a serious health condition and your employer advises you that it will require a medical certificate of fitness for duty before you can return to work, you can be denied reinstatement if you fail to provide the certification, or your reinstatement may be delayed until you submit the requested certification.
The FMLA permits you to take leave on an intermittent basis or to work a reduced schedule under certain circumstances.
Intermittent or reduced schedule leave may be taken when medically necessary to care for a seriously ill family member or because of your own serious health condition. Intermittent or reduced schedule leave may also be taken to care for a newborn or newly placed adopted or foster care child only with the employer’s approval.
Only the amount of leave you actually take while on intermittent or reduced schedule leave may be charged as FMLA leave. Your employer may not require you to take more FMLA leave than necessary to address the circumstances that cause the need for leave. Employers may account for FMLA leave in the shortest period of time recorded by their payroll systems, provided it is one hour or less.
If you or your family member needs intermittent or reduced schedule leave for foreseeable medical treatment, you must work with your employer to schedule the leave so as not to unduly disrupt your employer’s operations, subject to your health care provider’s approval. In such cases, your employer may temporarily transfer you to an alternative job with equivalent pay and benefits that accommodates recurring periods of leave more easily than your regular job.
It depends. If you are among the highest-paid ten percent of employees in your organization, which the FMLA defines as a “key employee,” your employer may not have to keep your job or a similar position open for you. But before your employer can deny you leave, it must show that guaranteeing you your job would cause substantial economic harm to the organization. You must also be told in advance that you qualify as a key employee and that as a result, your job may not be open when you return. Whatever happens on your return, your employer must maintain your usual health insurance coverage while you are on leave.
A “key employee” is defined as a salaried, “eligible” employee who is among the highest paid ten percent of employees within 75 miles of the worksite.
In order to comply with the FMLA’s “key employee” exception, the employer must:
- notify you of your status as a “key employee” in response to your notice of intent to take FMLA leave;
- notify you as soon as the employer decides it will deny job restoration, and explain the reasons for this decision;
- offer you a reasonable opportunity to return to work from FMLA leave after giving this notice; and
- make a final determination as to whether reinstatement will be denied at the end of the leave period if you then request that you be reinstated to your job.
The FMLA covers all local, state and federal government agencies, regardless of the number of employees. But like employees of private companies, government employees have to work at a worksite that has 50 or more employees within 75 miles, and to have worked for the employer a minimum of 1250 hours over the last year.
Federal courts currently are split on whether or not you can recover monetary damages under the FMLA if you are a state employee, but a state employee may be protected under state law. If you are a state employee who has been denied FMLA leave, you may need to discuss your individual situation with an attorney to figure out how best to proceed.
25. I am a teacher with three months of leave in the summer. Can I take FMLA leave during the winter?
Yes. Teachers and other instructors are eligible for FMLA leave if they meet the other requirements.
However, in some circumstances, limits may be placed on when teachers can return from leave to avoid disruptions in the school year. If you are scheduled to return from leave during the last few weeks of an academic term, you may have to extend your leave through the rest of the term even though you might be ready to come back sooner. During this period, however, the time you take off does not count against your 12-week-per-year FMLA entitlement. Your employer still must continue your health benefits, and your job (or an equivalent one) is still protected. (Your school or school board may have specific policies as to how you will be restored to an equivalent position.)
If you need leave on a regular basis over a period of time because of a planned medical treatment (for example, chemotherapy treatments) and the leave will take at least 20 percent of your work time during that period, your employer may require you to choose either to take leave for that whole block of time, or to transfer temporarily to another position with equal pay and benefits that is better suited to recurring periods of leave. If you choose to take a block of leave, all of the time you are off will count against your 12 weeks of FMLA leave.
26. Under my union contract, I am entitled to take up to 26 weeks of paid sickness/accident leave. Can I take all of this leave at once, even though the FMLA only requires my employer to provide 12 weeks of leave?
Yes. The FMLA was created as a minimum standard. It does not affect your employer’s obligation to comply with any benefit plan or collective bargaining agreement (union contract) that provides more generous family and medical leave benefits than the FMLA itself provides.
27. My doctor says that I need to be on leave, but my employer is asking for more proof of my illness. What do I do?
Your employer may require that the need for leave based on your own or your immediate family member’s serious health condition be supported by certification issued by a health care provider. Your employer must allow you at least 15 calendar days to obtain the medical certification. The certification must include:
- 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.
Your employer may, at its own expense, require you to obtain a second medical certification from a health care provider. Your employer may choose the health care provider for the second opinion, except that in most cases it cannot be someone with whom your employer regularly contracts or uses his or her services (not the “company doctor.”). If the opinions of the two designated health care providers differ, your employer may require you to obtain certification from a third health care provider, again at the employer’s expense. This third opinion shall be final and binding. The third health care provider must be approved jointly by you and your employer. In addition, your authorization is required for the release of medical information to second/third opinion health care providers.
If it is requested by your employer and you don’t provide the medical certification, your absence is not protected by the FMLA. This means that your employer has the legal right to fire you for that absence (unless some other law, or your collective bargaining agreement, applies).
28. I am on approved leave for six more weeks, but my employer keeps calling to see if I can return to work. Can they do this?
Yes, under some circumstances. Your employer may ask you questions to confirm whether your leave still qualifies for FMLA purposes, and may require periodic reports on your status and intent to return to work after leave.
Also, if your employer wishes to obtain another opinion, you may be required to obtain additional medical certification at the employer’s expense, or re-certification while you are still on leave. The employer may have its health care provider contact your health care provider, without your advanced approval, to clarify information in the medical certification or to confirm that it was provided by your health care provider. The inquiry may not seek additional information regarding your health condition or that of a family member.
Subject to certain limitations, your employer may deny the continuation of FMLA leave due to a serious health condition if you fail to fulfill any obligation to provide supporting medical certification. The employer may not, however, require you to return to work early by offering you a light duty assignment.
If you qualify for a family or medical leave, you have the right to take that leave free from harassment or discrimination. Your employer cannot interfere with your right to take leave or discriminate against you for requesting information about your rights or for taking a leave. Therefore, if you are in full compliance with your certification requirements, and the purpose of a call from your employer is to harass you or discourage you from taking further leave, your employer may be violating the law.
29. What should I do if my FMLA leave request is denied or my job has been filled when I am ready to return to work?
If you have been denied leave or are not allowed to return to your job at the end of your approved leave, you may want to file a grievance. If you are a union member, you may be able to file a formal grievance through the union. Try to get a shop steward or other union official to help you work through the grievance process. Even if you are not a member of a union, some employers have policies for handling a dispute regarding leaves. You may be able to resolve the dispute at your job internally. Find out what the policies are, by looking in your employee manual or other sources of personnel policies. Your company’s human resources department may be able to help.
However, even if you file a grievance with your employer, the deadlines to file in court or with an administrative agency still apply, so be sure not to miss them. For more information about these deadlines, please see question 31 below
The U.S. Department of Labor’s (DOL) Employment Standards Administration, Wage and Hour Division, administers and enforces the Family and Medical Leave Act (FMLA) for all private, state and local government employees, and some federal employees. Most Federal and certain congressional employees are also covered by the law and are subject to the jurisdiction of the U.S. Office of Personnel Management or Congress.
For more information about the DOL’s enforcement of the FMLA, please contact the closest district office of the DOL’s Wage and Hour Division.
If you believe your rights under the FMLA have been violated, you can file a grievance (if you are represented by a union); you can also file a complaint either with a federal administrative agency (the Department of Labor, or DOL) or in court. You may wish to consult with an attorney before making the decision about where to file and how to draft your complaint. Unlike some other employment laws, under the FMLA you are not required to first file with an administrative agency before filing in court. If your case is successfully resolved by an administrative agency, however, it may not be necessary to hire an attorney or file a lawsuit (as you will probably be required to waive your legal claims). Therefore, you may wish to first file with the DOL, and then if you are unable to resolve your complaint through the DOL, you can determine at that time (as long as two years have not passed) whether to file a complaint in court.
Generally, a complaint must be filed either with DOL or in court within two years of the date of the last action which you believe was a violation of the FMLA. However, if it can be shown that the action taken by the employer was willful (intentional), the complaint may be filed within three years of that date. For the best chance of success in resolving the complaint, the complaint should be filed as soon after the date of the last action thought to be a violation of the FMLA as is possible. Union employees who believe that the denial of leave violates their union contract should file a grievance regarding the matter according to the timeframe outlined in their collective bargaining agreement.
An administrative complaint may be filed by contacting the nearest office of the Wage and Hour Division of the DOL’s Employment Standards Administration. The address and telephone number for local offices may usually be found in the telephone directory listings for government offices under U.S. Government – Labor. The complaint may be filed by you or any other person on your behalf. The complaint may be filed in person, by letter or by telephone. The complaint must be in writing.
The DOL will review the merits of the complaint, and where appropriate, will undertake to resolve the complaint administratively through negotiations with the employer. When the complaint is resolved administratively, actions are limited to a two-year period, and interest and liquidated damages are not recovered. In some cases, the DOL may file a lawsuit on your behalf in the event negotiations with your employer are unsuccessful and the DOL is convinced that a violation of the FMLA did occur. If the DOL files a lawsuit, you may no longer bring your own lawsuit in court.
If an employer is found to have violated FMLA, remedies available to the employee may include:
- employment benefits;
- other compensation denied or lost to the employee;
- actual monetary loss to the employee (such as the cost of providing care to a family member with a serious health condition). This is limited to 12 weeks of the employee’s wages;
- an equal amount in “liquidated damages” unless the employer can show action was taken in good faith. This is often called “double damages.”
The employee may also obtain other forms of relief, such as:
In addition to the relief described above, you may also recover from the employer:
- reasonable attorney’s fees
- reasonable expert witness fees
- other costs of the legal action.
© 2017 Workplace Fairness