FMLA 101: Frequently Asked Questions About the Family Medical Leave Act
 

To what employers does the FMLA apply?

Public agencies, including state, local and federal employers, local education agencies (schools) are automatically covered 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.
 

What employees are eligible for FMLA?

Even if your company is covered by the Act, the employee seeking FMLA benefits must be at a worksite where there are 50 or more employees within 75 miles. The employee must have been employed for at least 12 months and must have worked 1250 hours in the 12-month period immediately prior to the commencement of the leave.
 

Do the 1,250 hours include paid leave time or other absences from work?

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.
 

How much leave is an employee entitled to under FMLA?

An "eligible" employee is entitled to a maximum 12 weeks of leave for qualifying family and medical reasons during a 12-month period.
 

How is the 12-month period calculated under FMLA?

Employers may select one of four options for determining the 12-month period:

1. the calendar year;
2. 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;
3. the 12-month period measured forward from the date any employee's first FMLA leave begins; or
4. a "rolling" 12-month period measured backward from the date an employee uses FMLA leave.
    

For what reasons can employees take leave?

(1) The birth of a child, to care for the newborn child, or the placement with the employee of a child for adoption or foster care and (2) to care for the employee's spouse, son, daughter, or parent with a serious health condition or for the employee's own serious health condition if the employee is unable to perform the functions of his or her job.
 

What is a "serious health condition"?

An injury or illness that involves either: (1) inpatient treatment (overnight stay) in a hospital or medical resident care facility; (2) period of inactivity, absence from work or daily activities of more than three consecutive days plus (a) two or more treatments by a health care provider, or one treatment by a healthcare provider with continuing treatment or (b) continuing treatment for two or more treatments; or (3) supervision by a health care provider for a serious condition (cancer, pregnancy) or disability that cannot be cured or if it were not treated would likely result in incapacity for more than three consecutive days.
 

Does the law guarantee paid time off?

No. The FMLA only requires unpaid leave. 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.
 

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.
 

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.
 

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 answer is "yes." 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.
 

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."
 

May an employee take FMLA leave for visits to a physical therapist, if the doctor prescribes the therapy?

Yes. FMLA permits an employee to take leave to receive "continuing treatment by a health care provider," which treatment 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.
 

Can an employer request proof of a serious health condition?

Yes. While the employee does not have to provide medical records, the employer can, however, request that an employee provide a medical certification confirming that a serious health condition exists.
 

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 FMLA leave employees 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.
 

What notice is an employee required to give before taking leave or returning to work?

Employees are required to give 30 days notice of their desire to take a leave, if the need is foreseeable. Note: the employee is not required to request FMLA, the employer must make any inquiry necessary to make that determination.
 

Does an employer have to continue to pay for group health insurance and other benefits while an employee is on leave?

Employers must continue an employee's group health coverage while on leave as if the employee were employed. This includes providing notice of any changes made in the policy during the leave status.

     
STRASBURGER & PRICE, LLP  •  DISCLAIMER
This publication provides information on general legal issues and is not intended to provide advice on any specific legal matters.