Know the FMLA -- and avoid a lawsuit.
A: If you are an "FMLA-eligible" employee, you are entitled to 12 weeks of FMLA leave for certain family and medical reasons during a 12-month period.
A: Employers may select one of four options for determining the 12-month period:
A: No. The FMLA only requires unpaid leave. However, the law 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 FMLA leave period. When paid leave is substituted for unpaid family medical leave, it may be counted against the 12-week FMLA leave entitlement if the employee is properly notified of the designation when the leave begins.
A: It can. FMLA leave and workers’ compensation leave can run together, provided the reason for the absence is due to a qualifying serious illness or injury and the employer properly notifies the employee in writing that the leave will be counted as family medical leave.
A: Yes. An eligible employee is entitled to a total of 12 weeks of family medical 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.
A: Yes, maternity leave and pregnancy disability are both eligible for family medical leave. 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 FMLA leave so long as the employer properly notifies the employee in writing of the designation.
A: In most situations, the employer cannot 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 was not aware of the reason for the leave, leave may be designated as FMLA leave retroactively only while the leave is in progress or within two business days of the employee’s return to work.
A: An employee’s spouse, children (son or daughter), and parents are immediate family members for purposes of FMLA. The term "parent" does not include a parent "in-law". 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 in regulations issued by the Equal Employment Opportunity Commission (EEOC) under the Americans With Disabilities Act (ADA).
A: Yes. The Family and Medical Leave Act permits you to take FMLA 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 treatment of severe arthritis.
A: 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 over the previous 12 months, and work at a location where at least 50 employees are employed by the employer within 75 miles.
A: No. The 12 months do not have to be continuous or consecutive; all time worked for the employer is counted.
A: 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.
A: Your 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 under the Family and Medical Leave Act has been met:
A: No. You do not have to provide medical records under the Family and Medical Leave Act. The employer may, however, request that, for any leave taken due to a serious health condition, you provide a medical certification confirming that a serious health condition exists.
A: Subject to certain limitations, your employer may deny the continuation of family medical leave due to a serious health condition if you fail to fulfill any obligations to provide supporting medical certification. The employer may not, however, require you to return to work early from FMLA leave by offering you a light duty assignment.
A: 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 your activities. The protections of the Family and Medical Leave Act will not, however, cover situations where the reason for FMLA leave no longer exists, where the employee has not provided required notices or certifications, or where the employee has misrepresented the reason for FMLA leave.
A: Yes, but only to you. According to the Family and Medical Leave Act, your employer may ask you questions to confirm whether the leave needed or being taken qualifies for FMLA purposes, and may require periodic reports on your status and intent to return to work after family medical leave. Also, if the employer wishes to obtain another opinion, you may be required to obtain additional medical certification at the employer’s expense, or rectification during a period of FMLA leave. The employer may have a health care provider representing the employer contact your health care provider, with your permission, 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 your health condition or that of a family member.
A:If you are an "eligible" employee who has met FMLA’s notice and certification requirements (and you have not exhausted your FMLA leave entitlement for the year), you may not be denied leave under the Family and Medical Leave Act.
A: Generally, no. It is unlawful for any employer to interfere with or restrain or deny the exercise of any right provided under the Family and Medical Leave Act. 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 family medical leave - to certain highly-paid, salaried ("key") employees.
A: 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 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.
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.
A: No. Nor can 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.
A: The Family and Medical Leave Act requires that employees
be restored to the same or an equivalent position. If an employee was
eligible for a bonus before taking FMLA leave, the employee would be eligible
for the bonus upon returning to work. The FMLA leave may not be counted
against the employee. For example, if an employer offers a perfect attendance
bonus, and the employee has not missed any time prior to taking FMLA leave,
the employee would still be eligible for the bonus upon returning from
family medical leave.
On the other hand, the Family and Medical Leave Act does not require that
employees on FMLA leave be allowed to accrue benefits or seniority. For
example, an employee on FMLA leave might not have sufficient sales to
qualify for a bonus. The employer is not required to make any special
accommodation for this employee because of FMLA. The employer must, of
course, treat an employee who has used FMLA leave at least as well as
other employees on paid and unpaid leave (as appropriate) are treated.
A: In all circumstances, it is the employer's responsibility to designate leave taken for an FMLA reason as FMLA leave. The designation must be based upon information furnished by the employee. Leave may not be designated as FMLA leave after the leave has been completed and the employee has returned to work, except if:
A: No.