Your Rights Under the Family and Medical Leave Act of 1993
FMLA requires covered employers to provide up to 12 weeks of unpaid, job-protected leave to "eligible" employees for certain family and medical reasons. Employees are eligible if they have worked for a covered employer for at least one year, and for 1,250 hours over the previous 12 months, and if there are at least 50 employees within 75 miles.
Reasons For Taking Leave:
Unpaid leave must be granted for any of the following reasons:
• to care for the employee’s child after birth, or placement for adoption or foster care;
• to care for the employee’s spouse, son or daughter, or parent, who has a serious health condition; or
• for a serious health condition that makes the employee unable to perform the employee’s job.
At the employee’s or employer’s option, certain kinds of paid leave may be substituted for unpaid leave.
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Advance Notice and Medical Certification:
The employee may be required to provide advance leave notice and medical certification. Taking of leave may be denied if requirements are not met.
• The employee ordinarily must provide 30 days advance notice when the leave is "foreseeable."
• An employer may require medical certification to support a request for leave because of a serious health condition, and may require second or third opinions (at the employer’s expense) and a fitness for duty report to return to work.
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Job Benefits and Protection:
• For the duration of FMLA leave, the employer must maintain the employee’s health coverage under any "group health plan."
• Upon return from FMLA leave, most employees must be restored to their original or equivalent positions with equivalent pay, benefits, and other employment terms.
• The use of FMLA leave cannot result in the loss of any employment benefit that accrued prior to the start of an employee’s leave.
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Unlawful Acts By Employers:
FMLA makes it unlawful for any employer to:
• interfere with, restrain, or deny the exercise of any right provided under FMLA:
• discharge or discriminate against any person for opposing any practice made unlawful by FMLA or for involvement in any proceeding under or relating to FMLA.
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Enforcement:
• The U.S. Department of Labor is authorized to investigate and resolve complaints of violations.
• An eligible employee may bring a civil action against an employer for violations.
• FMLA does not affect any Federal or State law prohibiting discrimination, or supersede any State or local law or collective bargaining agreement which provides greater family or medical leave rights.
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For Additional Information:
Contact the nearest office of the Wage and Hour Division, listed in most telephone directories under U.S. Government, Department of Labor.
U.S. Department of Labor
Employment Standards Administration
Wage and Hour Division
Washington, D.C. 20210
Serious Health Conditions Under the FMLA
In-Patient Care
Continuing Out-Patient Care
Incapacity of more than three days requiring continuing medical care.
Pregnancy and pre-natal care.
Chronic serious health conditions.
Long-term or permanent incapacity.
Multiple treatments for restorative surgery or to avoid incapacity of more than three days.
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Serious Health Conditions Requiring In-patient Care
Overnight in-patient stay in hospital, hospice, or residential medical care facility required.
FMLA leave available for follow-up treatments and recovery, as well as for initial in-patient stay.
FMLA leave available for mental health treatment, substance abuse treatment, cosmetic surgery, and other elective procedures involving in-patient care.
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Serious Health Conditions Requiring Out-patient Care
1. Incapacity Lasting More Than Three Consecutive Calendar Days Requiring continuing Medical Care.
Continuing Medical care must involve either:
a. Two visits to a Health Care Provider, or
b. One visit to a Health Care Provider resulting in a regimen of continuing treatment, such as prescription medication or physical therapy using special equipment.
Condition must render patient unable to work, attend school, or perform other regular daily tasks.
Not intended to include colds, flu, upset stomachs, headaches, or other common minor ailments, absent complications.
2. Pregnancy and Pre-natal Care
FMLA leave available for pre-natal medical examinations for incapacity caused by pregnancy-related conditions such as severe morning sickness, toxemia, or pre-term labor.
Patient must be under continuing medical supervision, but need not receive medical treatment in connection with each period of incapacity.
FMLA leave may be taken as needed in increments as small as an hour or less.
3. Chronic Serious Health Conditions.
FMLA leave available for asthma, diabetes, epilepsy, and other long-term, recurring medical conditions which may cause episodes of incapacity.
Patient must receive periodic medical treatment, but need not receive medical treatment in connection with each period of incapacity.
FMLA leave may be taken as needed in increments as small as an hour or less.
4. Long Term or Permanent Incapacity.
FMLA leave available for long term or permanent medical conditions such as Alzheimers, strokes, or terminal cancer.
Patient must be under continuing medical supervision, but need not be receiving active medical treatment.
FMLA leave to care for a family member may be taken as needed in increments as small as an hour or less.
5. Multiple Treatments.
FMLA leave available to receive and/or recover from restorative surgery after an accident or injury.
FMLA leave available to receive and/or recover from multiple medical treatments for medical conditions such as cancer, severe arthritis, or kidney disease.
Condition must be likely to result in incapacity of more than three days if left untreated.
FMLA leave may be taken as needed in increments as small as an hour or less.
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FMLA Medical Certification
Circumstances, frequency, content, and cost of FMLA medical certifications subject to bargaining.
Employer must give notice of medical certification requirements.
Employees entitled to a minimum of 15 days to respond to certification request
Generally, employer cannot require medical re-certification of serious health conditions more than once every 30 days.
Employer cannot use FMLA to increase certification requirements for paid leave substituted for unpaid FMLA leave.
Employer must pay for requested second or third opinions.
Employer may be able to delay or deny FMLA coverage if employee fails to comply with certification requirements.
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FMLA Fitness-for-Duty Certification Requirements
If union contract permits, employer may condition reinstatement upon medical certification of fitness for duty.
Requirement must be applied uniformly.
Certification must relate only to essential functions of the job.
Certification must relate only to serious health conditions that necessitated the leave.
Employer may not require certification for return from intermittent leave.
Employer may be able to delay or deny reinstatement if employee fails to comply with certification requirements.
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Intermittent or Reduced Schedule FMLA Leaves
Availability of Intermittent or Reduced Scheduled Leave.
As medically necessary for serious health conditions.
As necessary to arrange for adoption or foster placement.
To care for child after birth, adoption, or foster placement if union contract provides or employer agrees.
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Increments of Leave
Employee cannot be required to take more FMLA leave than needed.
Minimum increment of one hour or less.
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Scheduling Intermittent Leave
Employees must make reasonable efforts@ to schedule foreseeable intermittent leave to avoid unduly disrupting the employers operations.
Employers cannot require that all planned medical treatments be outside regular working hours.
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Employee Benefits for Employees on Intermittent or Reduced Scheduled Leaves
Employees must continue to receive the same group health insurance benefits at the same cost.
Employers may reduce other benefits computed on the basis of the hours worked if the union contract allows such reductions.
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Temporary Reduced Schedule Alternate Assignments
Alternate assignments only possible if permitted by union contract.
Must involve assignment to position with equivalent pay and benefits; need not involve equivalent duties.
No retaliatory transfers.
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Light-Duty Assignments
Under the FMLA, employees cannot be forced to accept a light duty assignment before FMLA leave is exhausted, but
Failure to accept light duty assignment may result in loss of workers compensation benefits.
If employee remains on light duty reduced schedule beyond 12-week FMLA leave, reinstatement rights are governed by Workers Compensation law and/or union contract instead of FMLA.
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Paid vs. Unpaid FMLA Leave
The FMLA requires unpaid leave generally; however, it provides for substitution of paid leave in some circumstances.
Employee Election of Paid Leave.
Employee always has the right to substitute paid vacation for unpaid FMLA leave.
Employee may substitute paid sick leave for FMLA reasons meeting sick leave requirements.
Employer cannot override employee substitution of paid leave for unpaid FMLA leave.
Unusual restrictions on timing and increments of paid leave cannot be applied to FMLA leave.
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Employer Requirement of Paid Leave.
Employers right to require substitution of paid leave may be restricted by:
FMLA Requirements
Employees cannot be required to substitute paid leave if the employer has not given them notice of the requirement.
Substitution requirements must be applied uniformly and non-discriminatory.
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State Workers Compensation laws
Employees cannot be required to exhaust paid leaves during concurrent FMLA/Workers compensation leaves.
State Leave Laws
State FMLA laws may preclude employers from requiring substitution of paid leave during concurrent state/federal FMLA leaves.
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FMLA Employee Notice Requirements
Notice of Leave for FMLA Reasons
Oral notice sufficient.
Timing of Notice
Foreseeable - 30 days notice (less if employee uses leave under benefit plan or union contract requiring less than 30 days notice).
Unforeseeable - As soon as practical.
Notice need only be give one for recurring intermittent or reduced schedule leave.
Content of Notice
Need not specifically ask for AFMLA leave@
Should give employer sufficient facts to let employer know leave is for FMLA reasons.
State whether employee wants to substitute paid leave.
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Notice of Intent to Return to Work.
If the union contract permits, employers may require employees to report periodically on their intent to return to work.
FMLA protections terminate once employee reports unequivocal intent not to return to work.
Employees can shorten requested leave if circumstances change.
Employer cannot require more than two business days notice of intent to return to work.
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FMLA Employer Notice Requirements
Notice Language Requirements
All required employer notices must be in a language which employees are literate.
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Posting Requirements
General notice of FMLA protections and procedures for filing complaints.
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Handbook Requirements
If employer has an employee handbook, information regarding employees FMLA rights must be included in it.
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Notice in Response to Request for FMLA Leave Must Include:
Whether leave will be counted against employees FMLA entitlement.
Medical certification requirements and consequences of failing to meet requirements.
Fitness for Return to Duty certification requirements.
Employee option to substitute paid leave and conditions related to substitution.
Circumstances under which employer will require substitution of paid leave.
Requirements for employees to make premium payments to maintain health benefits and consequences of failing to meet requirements.
Right to be restored to equivalent position.
Employees potential liability for health insurance premiums if employee fails to return from FMLA leave.
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When Does FMLA Qualifying Leave Count as FMLA Leave?
Employer must notify employee within two business days whether leave will be designated as FMLA leave.
Oral notice must be confirmed in writing by the next pay day.
If employer delays or fails to designate qualifying leave as FMLA leave:
Employee gets full FMLA protection for leave taken before employer designation, and
Leave taken before employer designation does not count towards employees 12-week entitlement.
Employee may designate qualifying leave as FMLA leave within two days of returning to work.
Avoids discipline based on leave.
Employer may not retroactively designate absence as FMLA leave more than two days after employees return to work, unless
Employer did not learn the leave was for FMLA reasons until after the employees return, or
Employer preliminarily designated leave as FMLA leave contingent upon medical certification.
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Maintenance of Group Health Benefits During FMLA Leaves.
Employer must maintain group health coverage as if employee had not taken leave.
Employee is liable for employee share of group health premiums during leave.
if employee substitutes paid leave, employee share of premiums may be deducted from wages on same basis as for other paid leaves.
Employers may not require pre-payment of employee share of group health premiums for unpaid FMLA leave.
Even if employee opts to discontinue coverage during leave, coverage must be reinstated unconditionally upon return from leave.
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Maintenance of Other Benefits During FMLA Leave
Employee entitlement to benefits other than group health benefits during leave governed by union contract rather than FMLA.
Employee who substitutes paid vacation or sick leave entitled to same continuation of seniority and benefits as other employees taking non-FMLA vacation or sick leave.
Upon return from leave, employee entitled to unconditional reinstatement of pre-leave benefits.
Employer may be forced to continue benefits during leave to assure unconditional reinstatement after leave.
If employer continues benefits during leave, it may recover employee portion of premiums after leave.
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Employer Recovery of Group Health Insurance Premiums
Recovery of Employee Share of Group Health Premiums permitted, unless
Employer fails to give employee written notice of premium liability, or
Employee opts to discontinue coverage during leave.
Employer Methods of Recovery May Be Limited by:
Union Contract
Federal Law (Employer cannot condition COBRA coverage on repayment of premiums.
State Law (Wage withholding statues)
Recovery of Employer Share of Group Health Premiums Permitted if Employee Does Not Return After Leave, unless
Employer failed to give employee written notice of possibility it might seek recovery.
Employee substituted paid leave for unpaid FMLA leave.
Employee opted to discontinue coverage during leave.
Employee laid off during leave.
Employee retired after leave.
Employee was prevented from returning to work by continuation or recurrence of FMLA qualifying serious health condition.
Employee was prevented from returning to work by circumstances beyond the employees control.
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Reinstatement After FMLA Leave
After an FMLA leave, an employee is entitled to reinstatement to:
Equivalent job
Substantially similar job duties and responsibilities, involving substantially equivalent skill, effort, responsibility, and authority.
Equivalent pay.
Including cost-of-living and other unconditional increases granted during leave.
Equivalent terms and conditions.
- Same or geographically close worksite.
- Same or equivalent schedule.
- Same benefits as if there had been no leave - no qualifications or preconditions.
- Same or equivalent opportunities for bonuses and profit sharing.
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The U.S. Department of Labor’s 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 the Congress.
FMLA became effective on August 5, 1993, for most employers. If a collective bargaining agreement (CBA) was in effect on that date, FMLA became effective on the expiration date of the CBA or February 5, 1994, whichever was earlier.
FMLA entitles eligible employees to take up to 12 weeks of unpaid, job-protected leave in a 12-month period for specified family and medical reasons. The employer may elect to use the calendar year, a fixed 12-month leave or fiscal year, or a 12-month period prior to or after the commencement of leave as the 12-month period.
The law contains provisions on employer coverage; employee eligibility for the law’s benefits; entitlement to leave, maintenance of health benefits during leave, and job restoration after leave; notice and certification of the need for FMLA leave; and, protection for employees who request or take FMLA leave. The law also requires employers to keep certain records.
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EMPLOYER COVERAGE
FMLA applies to all:
- public agencies, including state, local and federal employers, local education agencies (schools), and
- private-sector employers who employed 50 or more employees in 20 or more workweeks in the current or preceding calendar year and who are engaged in commerce or in any industry or activity affecting commerce - including joint employers and successors of covered employers.
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EMPLOYEE ELIGIBILITY
To be eligible for FMLA benefits, an employee must:
(1) work for a covered employer;
(2) have worked for the employer for a total of 12 months;
(3) have worked at least 1,250 hours over the previous 12-months; and
(4) work at a location in the United States or in any territory or possession of the United States where at least 50 employees are employed by the employer within 75 miles.
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LEAVE ENTITLEMENT
A covered employer must grant an eligible employee up to a total of 12 workweeks of unpaid leave during any 12-month period for one or more of the following reasons:
- for the birth and care of the newborn child of the employee;
- for placement with the employee of a son or daughter for adoption or foster care;
- to care for an immediate family member (spouse, child, or parent) with a serious health condition; or
- to take medical leave when the employee is unable to work because of a serious health condition.
Spouses employed by the same employer are jointly entitled to a combined total of 12 workweeks of family leave for the birth and care of the newborn child, for placement of a child for adoption or foster care, and to care for a parent who has a serious health condition.
Leave for birth and care, or placement for adoption or foster care must conclude within 12 months of the birth or placement.
Under some circumstances, employees may take FMLA leave intermittently - which means taking leave in blocks of time, or by reducing their normal weekly or daily work schedule.
- If FMLA leave is for birth and care or placement for adoption or foster care, use of intermittent leave is subject to the employer’s approval.
- FMLA leave may be taken intermittently whenever medically necessary to care for a seriously ill family member, or because the employee is seriously ill and unable to work.
Also, subject to certain conditions, employees or employers may choose to use accrued paid leave (such as sick or vacation leave) to cover some or all of the FMLA leave.
The employer is responsible for designating if an employee’s use of paid leave counts as FMLA leave, based on information from the employee.
"Serious health condition" means an illness, injury, impairment, or physical or mental condition that involves either:
- any period of incapacity or treatment connected with inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical-care facility, and any period of incapacity or subsequent treatment in connection with such inpatient care; or
- Continuing treatment by a health care provider which includes any period of incapacity (i.e., inability to work, attend school or perform other regular daily activities) due to:
(1) a health condition (including treatment therefor, or recovery therefrom) lasting more than three consecutive days, and any subsequent treatment or period of incapacity relating to the same condition, that also includes:
- treatment two or more times by or under the supervision of a health care provider; or
- one treatment by a health care provider with a continuing regimen of treatment; or
(2) Pregnancy or prenatal care. A visit to the health care provider is not necessary for each absence; or
(3) a chronic serious health condition which continues over an extended period of time, requires periodic visits to a health care provider, and may involve occasional episodes of incapacity (e.g., asthma, diabetes). a visit to a health care provider is not necessary for each absence; or
(4) a permanent or long-term condition for which treatment may not be effective (e.g., Alzheimer’s, a severe stroke, terminal cancer). Only supervision by a health care provider is required, rather than active treatment; or
(5) Any absences to receive multiple treatments for restorative surgery or for a condition which would likely result in a period of incapacity of more than three days if not treated (e.g., chemotherapy or radiation treatments for cancer).
"Health care provider" means:
- doctors of medicine or osteopathy authorized to practice medicine or surgery by the state in which the doctors practice; or
- podiatrists, dentists, clinical psychologists, optometrists and chiropractors (limited to manual manipulation of the spine to correct a subluxation as demonstrated by X-ray to exist) authorized to practice, and performing within the scope of their practice, under state law; or
- nurse practitioners, nurse-midwives and clinical social workers authorized to practice, and performing within the scope of their practice, as defined under state law; or
- Christian Science practitioners listed with the First Church of Christ, Scientist in Boston, Massachusetts; or
- Any health care provider recognized by the employer or the employer’s group health plan benefits manager.
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MAINTENANCE OF HEALTH BENEFITS
A covered employer is required to maintain group health insurance coverage for an employee on FMLA leave whenever such insurance was provided before the leave was taken and on the same terms as if the employee had continued to work. If applicable, arrangements will need to be made for employees to pay their share of health insurance premiums while on leave.
In some instances, the employer may recover premiums it paid to maintain health coverage for an employee who fails to return to work from FMLA leave.
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JOB RESTORATION
Upon return from FMLA leave, an employee must be restored to the employee’s original job, or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment.
In addition, an employee’s use of FMLA leave cannot result in the loss of any employment benefit that the employee earned or was entitled to before using FMLA leave, nor be counted against the employee under a "no fault" attendance policy.
Under specified and limited circumstances where restoration to employment will cause substantial and grievous economic injury to its operations, an employer may refuse to reinstate certain highly-paid "key" employees after using FMLA leave during which health coverage was maintained. In order to do so, the employer must:
- notify the employee of his/her status as a "key" employee in response to the employee’s notice of intent to take FMLA leave;
- notify the employee as soon as the employer decides it will deny job restoration, and explain the reasons for this decision;
- offer the employee a reasonable opportunity to return to work from FMLA leave giving this notice; and
- make a final determination as to whether reinstatement will be denied at the end of the leave period if the employee then requests restoration.
a "key" employee is a salaried "eligible" employee who is among the highest paid ten percent of employees within 75 miles of the work site.
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NOTICE AND CERTIFICATION
Employees seeking to use FMLA leave are required to provide 30-day advance notice of the need to take FMLA leave when the need is foreseeable and such notice is practicable.
Employers may also require employees to provide:
- medical certification supporting the need for leave due to a serious health condition affecting the employee or an immediate family member;
- second or third medical opinions (at the employer’s expense) and periodic recertification; and
- periodic reports during FMLA leave regarding the employee’s status and intent to return to work.
When intermittent leave is needed to care for an immediate family member or the employee’s own illness, and is for planned medical treatment, the employee must try to schedule treatment so as not to unduly disrupt the employer’s operation.
Covered employers must post a notice approved by the Secretary of Labor explaining rights and responsibilities under FMLA. An employer that willfully violates this posting requirement may be subject to a fine of up to $100 for each separate offense.
Also, covered employers must inform employees of their rights and responsibilities under FMLA, including giving specific written information on what is required of the employee and what might happen in certain circumstances, such as if the employee fails to return to work after FMLA leave.
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UNLAWFUL ACTS
It is unlawful for any employer to interfere with, restrain, or deny the exercise of any right provided by FMLA. It is also unlawful for an employer to discharge or discriminate against any individual for opposing any practice, or because of involvement in any proceeding, related to FMLA.
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ENFORCEMENT
The Wage and Hour Division investigates complaints. If violations cannot be satisfactorily resolved, the U.S. Department of Labor may bring action in court to compel compliance. Individuals may also bring a private civil action against an employer for violations.
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OTHER PROVISIONS
Special rules apply to employees of local education agencies. Generally, these rules provide for FMLA leave to be taken in blocks of time when intermittent leave is needed or the leave is required near the end of a school term.
Salaried executive, administrative, and professional employees of covered employers who meet the Fair Labor Standards Act (FLSA) criteria for exemption from minimum wage and overtime under Regulations, 29 CFR Part 541, do not lose their FLSA-exempt status by using any unpaid FMLA leave. This special exception to the "Salary basis" requirements for FLSA’s exemption extends only to "eligible" employees’ use of leave required by FMLA.
The FMLA does not affect any other federal or state law which prohibits discrimination, nor supersede any state or local law which provides greater family or medical leave protection. Nor does it affect an employer’s obligation to provide greater leave rights under a collective bargaining agreement or employment benefit plan. The FMLA also encourages employers to provide more generous leave rights.
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FURTHER INFORMATION
The final rule implementing FMLA is contained in the January 6, 1995, Federal Register. (An interim final rule was published in the Federal Register on June 4, 1993.) For more information, please contact the nearest office of the Wage and Hour Division, listed in most telephone directories under U. S. Government, Department of Labor, Employment Standards Administration. |