Frequently Asked Questions About The Family And Medical Leave Act (FMLA)

Any employer that employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year. The 50 employee requirement includes employees at all locations within a 75-mile radius.

To be covered under the FMLA, you must:

• Work for a covered employer.
• Have worked for that employer at least 12 total months (52 weeks), but your employment need not be consecutive for that period
• Work at least 1250 hours during the 12 months prior to the start of your FMLA leave.

If accurate records of the number of hours worked by the employee are not maintained by the employer, the employer bears the burden of showing the employee has not worked the requisite hours. If the employer can not prove otherwise, the employee is deemed to meet this test.

An employee can take leave under the FMLA for the following:

• The birth of a child or to care for a newborn child
• When there is a placement of a child with the employee for adoption or foster care
• When the employee is needed to care for a family member (child, spouse, or parent) with a serious health condition.
• For an employee’s own serious health condition that makes the employee unable to perform the functions of his or her job.

A serious health condition involves inpatient care, continuing treatment by a health care provider, or a period of incapacity greater than three consecutive calendar days accompanied by treatment two or more times by a health care provider or treatment by a health care provider on at least one occasion resulting in a regimen of continuing supervised treatment.

In certain cases, this leave may be taken on an intermittent basis rather than all at once, or the employee may work a part-time schedule.

A serious health condition involves:

• Inpatient care;
• Continuing treatment by a health care provider; or
• A period of incapacity greater than three consecutive calendar days accompanied by treatment two or more times by a health care provider or treatment by a health care provider on at least one occasion resulting in a regimen of continuing supervised treatment.

• An employee on FMLA leave is also entitled to have health benefits maintained while on leave as if the employee had continued to work instead of taking the leave.
• If an employee was paying all or part of the premium payments prior to leave, the employee would continue to pay his or her share during the leave period.

The employer has a right to 30 days advance notice from the employee where practicable. The employer may also require an employee to submit certification from a health care provider to show the leave is due to the serious health condition of the employee or employee’s immediate family member. Failure to comply with these requirements may result in a delay in the start of FMLA leave.

The following types of leave are acceptable under the FMLA:

• Foreseeable leave: When there is a planned medical treatment for a serious health condition or birth/placement of a child, foreseeable leave can be planned in advance. The employee must provide 30 days notice if practicable.
• Intermittent leave: Intermittent leave is leave taken in separate blocks of time due to a single qualifying reason. Generally, there is no limit on the size of the increment of leave. Available under certain circumstances. Employer consent may be required depending on the reason for leave.
• Reduced leave schedule: A reduced leave schedule reduces an employee’s usual number of working hours per week, or hours per day. Available under certain circumstances; employer consent may be required.

The employee should work with their employer as much as possible to determine the appropriate amount and type of leave under the FMLA for their specific circumstances.

1. Foreseeable leave – Planned medical treatment for a serious health condition or birth/placement of a child. Employee must provide 30 days notice if practicable.
2. Intermittent leave – Leave taken in separate blocks of time due to a single qualifying reason. Generally, there is no limit on the size of the increment of leave. Available under certain circumstances. Employer consent may be required depending on the reason for leave.
3. Reduced leave schedule – Leave schedule that reduces an employee’s usual number of working hours per week, or hours per day. Available under certain circumstances; employer consent may be required.

An employee generally has a right to return to the same position or an equivalent position with equivalent pay, benefits and working conditions at the conclusion of the leave. The taking of FMLA leave cannot result in the loss of any benefit accrued prior to the start of the leave.

Fitness Certification

Pursuant to a uniformly applied policy, the employer may also require an employee to present a certification of fitness to return to work when the absence was caused by the employee’s serious health condition. The employer may delay restoring the employee to employment without such a certificate. An employer can delay FMLA leave for 30 days if the employee fails to provide timely notice for a foreseeable leave or until requested medical certification is provided by the employee.

Covered employers must post (prominently where it can be seen) on its premises a notice, in a language in which employees are literate, explaining FMLA provisions and providing information about filing procedures for violations of the Act complaints. Information regarding FMLA, including the employee’s rights and obligations, must be placed in an employee handbook, or other written guidance.

Employers must responsively answer an employee’s FMLA questions.

An employee who believes their rights under FMLA have been violated may:

1. File a complaint with the U.S. Department of Labor.
2. File a private lawsuit within two years of an un-willful violation or within three years of a willful violation of FMLA.

Our employment lawyers can help you file a complaint or a lawsuit for violations of the FMLA.

An employer is responsible to maintain the following records during an employee’s FMLA leave: 

• Employee name, address, occupation, rate or basis of pay, terms of compensation, daily and weekly hours worked per pay period, additions to or deductions from wages, and total compensation paid.
• Dates (or hours if applicable) FMLA leave is taken by each employee (leave must be designated as FMLA leave).
• Copies of notices of leave furnished to the employer under FMLA and copies of all notices given to employees.
• Any documents describing employee benefits or employer policies and practices regarding the taking of paid or unpaid leaves.
• Records of disputes as to whether leave is designated FMLA.
• Premium payments for benefits.

Special rules apply to both public and private schools employees.

Special rules affect the taking of intermittent and leave on a reduced schedule basis by “instructional employees.”

• “Instructional employees”’ are those whose principal function is to teach and instruct students. Includes not only teachers, but also athletic coaches, driving instructors and special education assistants such as signers for the hearing impaired.
• It does not include, and the special rules do not apply to, teacher assistants or aides who do not have as their principal job actual teaching or instructing, nor does it include auxiliary personnel.

Summer vacation does not count against the 12 week FMLA leave entitlement.

An instructional employee on FMLA leave at the end of the school year must be provided with the benefits he/she would receive if they had been working at the end of the year.

If an instructional employee is going to be on foreseeable leave taken intermittently or on a reduced leave schedule for more than 20% of the total number of working days, the employer can require the employee to choose either to:

1. Take leave for a particular period, not greater than the duration of planned treatment.
2. Transfer to another position of equal pay and benefits, but one which better accommodates recurring periods of leave.
   • If an instructional employee does not give the required 30-day notice for foreseeable FMLA leave, the employer may require the employee to take leave of a particular duration, transfer positions or delay leave until notice provision is met.
   • Also, the employer may be able to require the employee to continue leave until the end if the leave begins too close to the end of the academic term.

Employers offering benefits in excess of those required by FMLA must follow those benefits even though FMLA requires less. However, employers are not prevented from amending their benefit plans in accordance with FMLA. Similarly, only state or local laws providing greater family or medical leave rights are to be followed.