Frequently Asked Questions About FMLA

If you’re not well versed in labor law and compliance, it’s all too easy to get tripped up on the sea of alphabet soup that seems to guide human resources professionals: FLSA, OSHA, COBRA, FMLA. We’ve already taken deep dives into each of the first three pieces of employment-related legislation, and now we’re taking on the last acronym in that laundry list of employment-related regulations: the Family Medical Leave Act, better known as FMLA.

At its core, the Family Medical Leave Act was passed to ensure eligible, covered employees could take a certain amount of (unpaid) time off to deal with their own or a close family member’s serious health condition without fear of losing their jobs. This over-broad definition, however, doesn’t begin to scratch the surface of the complexities of FMLA, which provides very specific guidelines on not only on the length of time an employee can take, but also on what qualifies as a “serious health condition,” as well as the specific responsibilities both employees and employers have when it comes to FMLA.

To help break down the Family Medical Leave Act into more bite-sized and digestible bits of information, we’re tackling this topic by providing answers to some of the most frequently asked questions employees and employers alike have about FMLA.

Who’s covered under FMLA?

The Family Medical Leave Act applies to eligible employees of covered employers.

A covered employer is an employer who falls into any one of the following three categories:

• A private employer with 50 or more employees in at least 20 weeks of the current or preceding calendar year; or
• A public agency, including state, local and federal employers; or
• A local education agency.

An employee is eligible to take FMLA leave if he or she:

• Has worked for the employer for at least 12 months (don’t need to be consecutive months);
• Has worked at least 1,250 hours for the employer during the 12-month period immediately preceding the leave; and
• Is employed at a location where the employer has at least 50 employees within a 75-mile radius.

Is FMLA leave paid or unpaid?

FMLA leave is unpaid leave. Individual employees or employers may request or require, respectively, that accrued paid leave (sick time, vacation, paid time off, etc.) be substituted for FMLA leave in some cases. In these cases, the paid leave must run concurrently with the unpaid FMLA leave, and the employee must abide by the employer’s normal paid leave policies.

What are some reasons an employee can take FMLA leave?

An eligible employee (as defined above) is entitled to unpaid leave for any of the following reasons:

• The birth and care of the employee’s newborn child;
• The placement of a child with the employee for adoption or foster care;
• To care for the employee’s own parent, child or spouse with a “serious health condition”;
• Because the employee is unable to work due to his or her own “serious health condition”;
• Because of any qualifying exigency arising out of the fact that the employee’s spouse, child or parent is a military member on covered active duty or has been notified of an impending call or order to covered active duty status; or
• The care for a spouse, child, parent or next of kin who is a covered service member with a serious injury or illness.

What is considered a “serious health condition”?

A “serious health condition” is defined as an illness, injury, impairment, or physical or mental condition that involves inpatient care (overnight stay in a hospital or other medical facility and any period of incapacity or subsequent treatment in connection with the inpatient care) or continuing treatment by a health care provider. For the purposes of FMLA leave, a serious health condition involving continuing treatment by a health care provider includes:

• Any period of incapacity of more than three consecutive full calendar days and involving a certain level of treatment;
• Any incapacity related to pregnancy or prenatal care;
• Any period of incapacity which is permanent or long-term due to a condition for which treatment may be ineffective; or
• Any period of absence to receive multiple treatments for a restorative surgery after an accident or other injury, or for a condition that, if left untreated, would likely result in incapacity of more than three consecutive full calendar days.

Here, “incapacity” means the inability to work, attend school or perform other regular daily activities due to a serious health condition.

How much time is an employee on FMLA leave entitled to?

Generally speaking, employers are required to provide eligible employees with up to 12 weeks of FMLA leave during a 12-month period.

There are a few additional caveats regarding the length of time an employee can take however, including that:

If an employee takes FMLA leave to care for a spouse, child, parent or next of kin who is considered a covered service member with a serious injury or illness, employers must provide up to 26 weeks of FMLA leave during a single 12-month period.

Spouses working for the same employer must share FMLA leave taken for the birth of a child, placement of a child for adoption or foster care, care for a parent with a serious health condition, or care for a covered service member with a serious injury or illness.

Are employees required to take their leave continuously?

Unless intermittent leave is specifically granted by the FMLA, or is allowed by the individual employer, employees must take their FMLA leave continuously.

Circumstances in which intermittent leave is permitted by the FMLA include:

• Leave taken for a serious health condition;
• Leave taken for care of a covered service member when medically necessary; or
• Leave taken because of a qualifying exigency.

What happens when an employee returns from FMLA leave?

Generally speaking, upon returning from FMLA leave, an employee must be reinstated or restored to either the same position or a position equivalent to the employee’s previous position in all pay, benefits and other terms and conditions of employment.

How much notice is an employee required to give in order to request FMLA leave?

When the need for leave is known in advance (such as with the birth of a child), employees requesting FMLA leave must do so at least 30 days prior to the date the leave will begin. In cases where the leave is not foreseeable (such as with a qualifying exigency), leave must be requested as soon as is practicable.

Is an employee required to explain the reasons he or she is requesting leave?

Yes. Employees requesting FMLA leave must explain the reasons for the leave so as to allow the employer to determine whether it qualifies as FMLA leave.

An employer may also request that an employee provide a certification of the reason for leave, provide periodic status reports while on leave, and/or demonstrate his or her fitness to return to work after medical leave.

Are employers allowed to deny an employee’s request for FMLA leave?

No. Eligible employees who have met and followed the FMLA’s notice and certification requirements, and who have not already exhausted their FMLA leave in the current 12-month period may not be denied FMLA leave.

How can an employee find out if their request for leave qualifies as FMLA leave?

After an employee submits a request for FMLA leave, or after an employer becomes aware that an employee’s leave may be covered by the FMLA, his or her employer must provide the employee with an eligibility notice within five business days, absent any extenuating circumstances. This eligibility notice (Form WH-381) must state whether or not the employee is eligible to take FMLA leave, and, if the employee is found to be ineligible, must provide an explanation as to why he or she is not eligible for FMLA leave.

How does an employer designate leave as FMLA leave?

Employers bear the responsibility to designate leave as FMLA leave and notify the employee of this designation. The designation must also be made within five business days of an employer learning that the leave is being taken for an FMLA purpose, absent any extenuating circumstances. Employers can use Form WH-382 to designate leave as FMLA leave.