|Family & Medical Leave Act of 1993- FMLA
Who is Covered
The Family and Medical Leave Act (FMLA) provides a means for
employees to balance their work and family responsibilities
by taking unpaid leave for certain reasons. The Act is intended
to promote the stability and economic security of families as
well as the nation's interest in preserving the integrity of
The FMLA applies to any employer in the private sector who engages
in commerce, or in any industry or activity affecting commerce,
and who has 50 or more employees each working day during at
least 20 calendar weeks in the current or preceding calendar
The law covers all public agencies (state and local governments)
and local education agencies (schools, whether public or private).
These employers do not need to meet the "50 employee"
test. Title II of FMLA covers most federal employees, who are
subject to regulations issued by the Office of Personnel Management.
To be eligible for FMLA leave, an individual must (1) be employed
by a covered employer and work at a worksite within 75 miles
of which that employer employs at least 50 people; (2) have
worked at least 12 months (which do not have to be consecutive)
for the employer; and (3) have worked at least 1,250 hours during
the 12 months immediately before the date FMLA leave begins.
The FMLA provides an entitlement of up to 12 weeks of job-protected,
unpaid leave during any 12-month period for the following reasons:
? Birth and care of the employee's child, or placement for adoption
or foster care of a child with the employee;
? Care of an immediate family member (spouse, child, parent)
who has a serious health condition; or
? Care of the employee's own serious health condition.
If an employee was receiving group health benefits when leave
began, an employer must maintain them at the same level and
in the same manner during periods of FMLA leave as if the employee
had continued to work. Usually, an employee may elect (or the
employer may require) the use of any accrued paid leave (vacation,
sick, personal, etc.) for periods of unpaid FMLA leave.
Employees may take FMLA leave in blocks of time less than the
full 12 weeks on an intermittent or reduced leave basis when
medically necessary. Taking intermittent leave for the placement,
adoption, or foster care of a child is subject to the employer's
approval. Intermittent leave taken for the birth and care of
a child is also subject to the employer's approval except for
pregnancy-related leave that would be leave for a serious health
When the need for leave is foreseeable, an employee must give
the employer at least 30 days notice, or as much notice as is
practicable. When the leave is not foreseeable, the employee
must provide such notice as soon as possible.
An employer may require medical certification of a serious health
condition from the employee's health care provider. An employer
may also require periodic reports during the period of leave
of the employee's status and intent to return to work, as well
as "fitness for duty" certification upon return to
work in appropriate situations.
An employee who returns from FMLA leave is entitled to be restored
to the same or an equivalent job (defined as one with equivalent
pay, benefits, responsibilities, etc.) The employee is not entitled
to accrue benefits during periods of unpaid FMLA leave, but
the employer must return him or her to employment with the same
benefits at the same levels as existed when leave began.
Employers are required to post a notice for employees outlining
the basic provisions of FMLA and are subject to a $100 civil
money penalty per offense for willfully failing to post such
notice. Employers are prohibited from discriminating against
or interfering with employees who take FMLA leave.
The FMLA provides that eligible employees of covered employers
have a right to take up to 12 weeks of job-protected leave
in any 12-month period for qualifying events without interference
or restraint from their employers. The FMLA also gives employees
the right to file a complaint with the Wage and Hour Division,
file a private lawsuit under the Act (or cause a complaint
or lawsuit to be filed), and testify or cooperate in other
ways with an investigation or lawsuit without being fired
or discriminated against in any other manner.
Q: How much leave am I entitled to under FMLA?
If you are an "eligible" employee, you are entitled
to 12 weeks of leave for certain family and medical reasons
during a 12-month period.
Q: What records must an employer keep to comply with the FMLA?
No particular order or form of records is required. The records
may be maintained and preserved on microfilm or other basic
source document of an automated data processing memory provided
that adequate projection or viewing equipment is available,
that the reproductions are clear and identifiable by date
or pay period, and that extensions or transcriptions of the
information required herein can be and are made available
upon request. Records kept in computer form must be made available
for transcription or copying.
? Basic payroll and identifying employee data, including name,
address, and occupation; rate or basis of pay and terms of
compensation; daily and weekly hours worked per pay period;
additions to or deductions from wages; and total compensation
? Dates FMLA leave is taken by FMLA eligible employees (e.g.,
available from time records, requests for leave, etc., if
so designated). Leave must be designated in records as FMLA
? If FMLA leave is taken by eligible employees in increments
of less than one full day, the hours of the leave.
? Copies of employee notices of leave furnished to the employer,
if in writing, and copies of all general and specific written
notices given to employees. Copies may be maintained in employee
? Any documents (including written and electronic records)
describing employee benefits or employer policies and practices
regarding the taking of paid and unpaid leaves.
? Premium payments of employee benefits.
? Records of any dispute between the employer and an eligible
employee regarding designation of leave as FMLA leave, including
any written statement from the employer or employee of the
reasons for the designation and for the disagreement.
Q: HOW LONG MUST THE EMPLOYER KEEP THESE RECORDS FOR?
Employers must keep the records specified by these regulations
for no less than three years and make them available for inspection,
copying, and transcription by representatives of the Department
of Labor upon request.
Q: What notice does an employee have to give an employer
when the need for FMLA leave is foreseeable?
An employee must provide the employer at least 30 days advance
notice before FMLA leave is to begin if the need for the leave
is foreseeable based on an expected birth, placement for adoption
or foster care, or planned medical treatment for a serious
health condition of the employee or of a family member. If
30 days notice is not practicable, such as because of a lack
of knowledge of approximately when leave will be required
to begin, a change in circumstances, or a medical emergency,
notice must be given as soon as practicable.
Q: How is the 12-month period calculated under FMLA?
Employers may select one of four options for determining the
? 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
the employee’s "anniversary" date;
? the 12-month period measured forward from the date any employee’s
first FMLA leave begins; or
? a "rolling" 12-month period measured backward
from the date an employee uses FMLA leave.
Q: Does the law guarantee paid time off?
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 FMLA 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.
Q: Does workers’ compensation leave count against an
employee’s FMLA leave entitlement?
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 FMLA leave.
Q: Can the employer count leave taken due to pregnancy complications
against the 12 weeks of FMLA leave for the birth and care
of my 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
Q: 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.
Q: 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 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.
Q: Who is considered an immediate "family member"
for purposes of taking FMLA leave?
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
Q: May I take FMLA leave for visits to a physical therapist,
if my doctor prescribes the therapy?
Yes. FMLA permits you 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 treatment of severe arthritis.
Q: 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 over the previous 12 months, and
work at a location where at least 50 employees are employed
by the employer within 75 miles.
Q: 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.
Q: Do the 1,250 hours include paid leave time or other absences
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.
Q: How do I determine if I have worked 1,250 hours in a 12-month
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 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.
Q: Do I have to give my employer my medical records for leave
due to a serious health condition?
No. You do not have to provide medical records. 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.
Q: Can my employer require me to return to work before I
exhaust my leave?
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 obligations to provide supporting
medical certification. The employer may not, however, require
you to return to work early by offering you a light duty assignment.
Q: Are there any restrictions on how I spend my time while
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 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.
Q: Can my employer make inquiries about my leave during my
Yes, but only to you. 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 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.
Q: Can my employer refuse to grant me FMLA leave?
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 FMLA leave.
Q: Will I lose my job if I take FMLA leave?
Generally, no. 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.
Q: Are there other circumstances in which my employer can
deny me FMLA leave or reinstatement to my job?
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
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
Q: Can my employer fire me for complaining about a violation
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.
Q: Does an employer have to pay bonuses to employees who
have been on FMLA leave?
The FMLA 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 FMLA leave.
On the other hand, FMLA 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.
Q: Under what circumstances is leave designated as FMLA leave
and counted against the employee's total entitlement?
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;
? the employer is awaiting receipt of the medical certification
to confirm the existence of a serious health condition;
? the employer was unaware that leave was for an FMLA reason,
and subsequently acquires information from the employee such
as when the employee requests additional or extensions of
? the employer was unaware that the leave was for an FMLA
reason, and the employee notifies the employer within two
days after return to work that the leave was FMLA leave.
Q: Can my employer count FMLA leave I take against a no fault
Q: What are valid reasons for leave?
The following is a list of Valid Reasons for Leave. If the
reason for leave falls into one of these areas, and the employee
is an eligible employee, the employee is entitled to the benefits
of FMLA leave.
? Birth of a son or daughter to the employee and in order
to care for such son or daughter. http://www.dol.gov/elaws/esa/fmla/bcc.asp
? Placement of a son or daughter with the employee for adoption
or foster care. http://www.dol.gov/elaws/esa/fmla/afc.asp
? Family leave in order to care for a spouse, son, daughter,
or parent of the employee if such spouse, son, daughter, or
parent has a serious health condition. http://www.dol.gov/elaws/esa/fmla/fl.asp
? Serious health condition that makes the employee unable
to perform their job. http://www.dol.gov/elaws/esa/fmla/shc.asp
Q: As an employee what are my responsibilities?
The following is a list of employee responsibilities:
1. Provide notice to your employer of the need for leave.
a) for leave that is foreseeable -- 30 days notice.
b) for leave that is unforeseeable -- as soon as practicable.
c) comply with the employer’s rules for requesting leave.
2. Advise your employer if leave is to be taken intermittently
or on a reduced leave schedule basis.
3. Provide medical certification for leave taken as a result
of a serious health condition if required by your employer.
4. Comply with arrangements to make group health benefit co-payments.
5. Periodically advise your employer of your intent to return
to work at the conclusion of leave, if required by your employer.
6. Notify your employer of any change in the circumstances
for which leave is being taken.
7. Provide your employer with a fitness for duty certification
if required by your employer, when leave was taken for your
own serious health condition.
Q: As an eligible employee what are my rights and benefits?
? 12 weeks of unpaid FMLA leave in a 12-month period.
? continuation of group health benefits during FMLA leave.
? restoration to the same or an equivalent job upon return
? retention of accrued benefits.
? protection from discrimination as a result of taking FMLA
Q: What are my notification responsibilities as an employer?
The following is a summary of the major employee notifications
an employer is required to make in various circumstances under
POST FMLA POSTER http://www.dol.gov/esa/regs/compliance/posters/pdf/fmlaen.pdf
? The poster and the text must be large enough to be easily
read and contain fully legible text. An employer that willfully
violates the posting requirement may be assessed a civil money
? Failure to post the required notice prevents the employer
from taking any adverse action against an employee, including
denying FMLA leave, failing to provide advance notice of a
need to take FMLA leave.
? When appropriate, the employer must provide the notice in
a language the employees can read.
REVISE EMPLOYEE HANDBOOK
If an employer provides an employee handbook to all employees
that describes the employer's policies regarding leave, wages,
attendance, and similar matters, the handbook must incorporate
information on FMLA rights and responsibilities and the employer's
policies regarding FMLA.
UPDATE COLLECTIVE BARGAINING AGREEMENT (CBA)
An employer must observe any employment benefit program or
plan that provides greater family or medical leave rights
to employees than the rights established by the FMLA. Conversely,
the rights established by the Act may not be diminished by
any employment benefit program or plan. For example, a provision
of a CBA which provides for reinstatement to a position that
is not equivalent because of seniority is superseded by FMLA.
NOTIFY EMPLOYEE OF ELIGIBILITY STATUS
? 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
? work at a location where at least 50 employees are employed
by the employer within 75 miles.
PROVIDE WRITTEN NOTICE WHEN EMPLOYEE REQUEST LEAVE
There are eight pieces of information that an employer must
provide in writing to an employee who requests FMLA leave:
1. Whether the leave will be counted against the employee’s
FMLA leave entitlement;
2. Requirements for furnishing medical certification (Form
for a serious health condition and the consequences for failing
to do so;
3. The employee’s right to substitute paid leave and
whether the employer will require the substitution of paid
4. Requirements for making any health benefit premium payments;
consequences for failing to make timely payments; and, circumstances
under which coverage might lapse;
5. Requirements to submit a fitness-for-duty certificate to
be restored to employment;
6. Employee’s status as a "key" employee;
7. Employee’s right to restoration when leave is completed;
8. Employee’s potential liability if the employer makes
the employee’s health insurance premium payments while
the employee is on unpaid FMLA leave if the employee fails
to return to work.
This written Prototype Notice (Form WH-381) http://www.dol.gov/esa/forms/whd/WH-381.pdf
should be provided to the employee within a reasonable time
after the employee gives notice of the need for FMLA leave,
within one or two business days, if feasible.
NOTIFY EMPLOYEES OF CHANGE IN METHOD TO MEASURE 12-MONTH
PERIOD FOR FMLA LEAVE
There are four methods for determining the 12-month period
in which the 12 weeks of leave entitlement occurs. The employer
has the option of selecting any one, but once selected, it
must be applied uniformly.
Below is a list of the four methods:
1. Calendar year
2. Fixed 12-month "leave year" such as fiscal year,
a year required by state law, or a year starting on an employee's
3. 12-month period measured forward from the date any employee's
first FMLA leave begins
4. "Rolling" 12-month period measured backward from
the date an employee uses any FMLA leave An employer wishing
to change to another alternative is required to give at least
60 days notice to all employees.
NOTIFY EMPLOYEE OF DECISION TO DROP GROUP HEALTH BENEFIT PLAN
If an employee's premium payment is more than 30 days late,
absent other company policies, the employer may drop the employee
from coverage of the group health benefit plan. Before doing
so, however, the employer must provide the employee with at
least 15 days written notice before the date coverage is to