FAQ

QUESTIONS & ANSWERS REGARDINGTHE FAMILY MEDICAL LEAVE ACT (FMLA)

What is the Family and Medical Leave Act?
A.    The Family Medical Leave Act (FMLA or “the Act” for short) was enacted to provide protection (from job loss and maintenance of health benefits) to eligible employees in the event of certain qualifying events.  The Act entitles eligible employees to be absent for up to 12 work weeks per year for the birth or adoption of a child; to care for a spouse, son, daughter, or parent with a serious health condition; when unable to work due to their own serious health condition; or due to a qualifying exigency.

Q. Which employees are eligible for FMLA?
A.    To be eligible for FMLA protection an employee must…
1.  Work for a covered employer.  A covered employer is an employer who employs 50 or more employees.
2. Have been employed by the employer for at least 12 months (although the employment need not be consecutive),
3. Have been employed for at least 1,250 hours of service during the 12 month period immediately preceding the commencement of the leave, and
4. Be employed at a worksite where 50 or more employees are employed by the employer within 75 miles of that worksite.

Q. One of my employees is requesting FMLA protected leave to look for a new daycare provider.  Do I have to provide protection for this type of activity?
A.    No.  This employee’s request is subject to your standard leave policies.
Q. Can the flu be considered a serious health condition under the FMLA?
A.    The common cold and flu are not covered unless there are complications.

Q. Is advance notice required for employees’ use of protected leave under FMLA?
A.    An employee must provide their employer at least 30 days advance notice if the need for the leave is foreseeable.  When the need for leave is not foreseeable, an employee should give notice to the employer as soon as practicable by telephone, fax or other electronic means.

Q. Is an employee entitled to 12 work weeks of protected absences under the FMLA for placement or care of an adopted or foster child?
A.    Yes.

Q. Does my supervisor have to approve my requests for intermittent leave to care for my mom who has a serious health condition?

A.    The time off must be allowed provided that you have given your employer proper medical certification that supports that the leave is medically necessary.  It is also necessary that you notify your employer of your need for leave through their usual and customary procedures for requesting leave.  However, in foreseeable cases, you must make a reasonable effort to schedule the absences so as not to disrupt your employer’s operation.  Also, you may be assigned to an alternative position with equivalent pay and benefits that better accommodates the intermittent or reduced leave schedule (this would be subject to the provisions of any applicable collective bargaining agreement).

Q. How do I apply for FMLA protection?
A.    As soon as you know that you need FMLA protection you must notify your employer using their usual and customary process for requesting leave.  FMLA is generally unpaid leave but some employers will allow or may require you to substitute paid vacation or sick leave for unpaid FMLA leave.  Leave under the FMLA is not a separate category or type of leave, it is protection that will be applied to whichever type of leave you are paid.

Q. Do I have to specifically ask for FMLA protection when I request time off for a covered condition?
A.    No.  However, if you don’t ask for FMLA then you must explain the reasons for the absence and give enough information to allow your employer to determine that the leave qualifies for FMLA protection.  If you give no explanation of the reason for the absence and do not ask for FMLA, there is no way for your employer to know that the leave needs to be protected under the FMLA.

Q. If both spouses work for the same employer, does the employer let both take up to 12 work weeks each of protected absences under FMLA each leave year?
A.  It depends.  If the event is the birth of a baby then the employer is only required to give a combined total of 12 weeks of leave to both parents in a 12 month period.  If one spouse is ineligible then the eligible spouse is entitled to a full 12 weeks.  Each person would be entitled to a full 12 weeks for all of their qualifying events combined.  Check with your employer to see if they have established policies more generous than the FMLA.

Q. My mother-in-law who lives with me is ill and requires my care.  Is my employer required to approve my leave as a covered condition?

A.    No, the FMLA only provides protected absences for covered conditions of a spouse, parent, son or daughter.  Leave taken to care for anyone else would require approval under your employer’s normal leave policies.

Q. During an appointment with my doctor he determined that I have a back condition.  He ordered three months of physical therapy treatments.  Are the visits and the treatments protected by the FMLA?
A.    It depends.  Where properly documented as a serious health condition, the absence may qualify for FMLA protection since it involves a continuing treatment under the supervision of a health care provider.  If your health care provider indicates on the certification that a lack of treatment would likely result in a period of incapacity of more than three days then the condition should qualify for FMLA.  Employees needing intermittent FMLA leave or leave on a reduced leave schedule are required to schedule their leave so as not to disrupt the employer’s operations.

Q. I took a week of protected leave under the FMLA to care for my baby who was born 2 months ago.  Now I want to take the week of July 4th off to be with my baby.  Since bonding with my newborn is a condition covered under the FMLA, does my supervisor have to let me off for the week of July 4th?
A.    No.  You are requesting intermittent leave for the birth and care of a child which the regulations say must be approved in advanced by your employer.  Therefore, your request for the week of July 4th is subject to your supervisor’s approval in accordance with your employer’s leave policies.

Q.  Dan has a recurrent degenerative arthritis condition that qualifies as a serious health condition.  The certification indicates his condition may “flare up” 1 to 2 days per month and may render him incapacitated.  When Dan’s condition does flare he requests absences under the FMLA with little or no advance notice.   Does this meet the criteria or intent of the intermittent leave entitlement under the FMLA?
A.    If properly certified, intermittent absences due to a chronic condition which incapacitates an employee are covered by the FMLA.  (This example does not address all of the certification criteria.)

Q. Do I have to use all of my sick pay and vacation time before I can take unpaid time off for a condition covered under the FMLA?
A.    Generally FMLA is unpaid although most employers will allow you to substitute your earned, accrued sick or vacation leave for unpaid FMLA leave.  Also, an employer may require you to substitute paid leave for unpaid leave in some situations.  The use of leave, paid or unpaid, is subject to management’s approval consistent with your employers leave policies.  Your employer will notify you of which is applicable (whether you have the option to elect or will be required to use paid leave) when you request FMLA protection.

Q. What happens if my doctor says I need more than 12 weeks off due to my condition?
A.    Twelve work weeks is the maximum amount of protected leave which must be granted for all of the covered conditions under the FMLA.  After being off for 12 work weeks, you may request leave under your employer’s current leave policies, but that time would not be protected under the FMLA.  Approval will be subject to the terms and conditions of you employer’s applicable leave policies.

Q. Does FMLA protected leave have to be taken as a continuous block?
A.    No, the leave may be taken intermittently or on a reduced schedule basis if the health care provider certifies that it is medically necessary to do so.  When leave is taken because of the birth or placement of a child for adoption or foster care, an employee may take leave intermittently or on a reduced leave schedule only if the supervisor agrees.

These and many other questions can be

answered by Family Medical Leave Advisors…..

Q. Is treatment for substance abuse covered under the FMLA?

Q. What happens after I ask for FMLA?  What information should my supervisor tell me?

Q. What can an employer do if he or she questions the adequacy of medical certification that includes all the required information?

Q. Can a supervisor have a blanket policy that requires recertification every 30 days for all employees requesting FMLA protection for chronic conditions and permanent/long-term conditions?

Q. Jolie had a baby and took 6 weeks of medical leave off after the baby during a period when she was not eligible under the FMLA.  Now she is eligible, and the baby is still less than a year old.  Can she now take the 12 work weeks of protected absences under the FMLA for bonding?

Q. Can an employee who is separated or divorced take a protected absence under the FMLA to care for a spouse or ex-spouse with a serious health condition?

Q. Can an employee file an EEO complaint related to FMLA?

Q. Can my raise be withheld as a result of my failure to be at work due to an FMLA absence?

Q. My wife’s doctor said she needs almost total bed rest for the last two months of her pregnancy, and I need to stay home to care for our other children.  Is this condition covered under the FMLA?

Q. I have been in trouble because of my attendance before.  I have entered into a “last chance agreement” with my employer which states that if I have more than 2 unscheduled absences within the next six months, I can be fired.  Will an absence protected under the FMLA count as an absence for the purposes of my last chance agreement?

Q. I have requested FMLA protection.  How will I know if the requested leave counts as part of my 12 week entitlement under the Family and Medical Leave Act?

Q. If I call in sick with a cold but while I am absent it develops into something more serious such as bronchitis will my entire absence be protected under the FMLA?

Q. Am I required to use an M.D. for my pregnancy?  My preference would be to have a midwife for both my prenatal care and the delivery of my child, would my pregnancy still be a condition covered under the FMLA if I do?

Q. Okay, I can’t be fired for an FMLA absence but can my supervisor discuss my FMLA absences with me in periodic attendance reviews concerning the importance of regular attendance?

Q. I was hired for a special project on contract by my employer, the contract is not to exceed two years.  I am currently absent on protected leave under the Family and Medical Leave Act, and my employment contract expires next week.  How will that affect me?

Q. If I exhaust my leave protected under the FMLA but I am still unable to return to work can I be terminated due to those absences?

Q. I have been a temporary employee for nine months.  Am I an eligible employee under the FMLA?

Q. I didn’t request FMLA leave by my supervisor put me in for it without my knowledge.  Can she do that?  I want to save my protection for when I want to use it later in the year.

Q. Can my boss require me to recertify my condition for each absence when a health care provider has already certified that I am receiving treatment for my condition?

Q. Do sick pay, vacation pay, personal leave, injury compensation pay, and
military leave count toward eligibility requirements under the FMLA?

Q. What certification do I have to provide when I request FMLA because of the birth or placement of a son or daughter and to care for that son or daughter after the birth or placement?

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