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Frequently Asked Questions and
Answers
Q: How much
leave am I entitled to under FMLA?
Q: How is
the 12-month period calculated under FMLA?
Q: Does the law
guarantee paid time off?
Q: Does workers’ compensation leave count against an employee’s FMLA
leave entitlement?
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?
Q: Can the employer count time on maternity leave or pregnancy
disability as FMLA
leave?
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?
Q: Who is considered an immediate "family member" for purposes of taking
FMLA
leave?
Q: May I take FMLA leave for visits to a physical therapist, if my
doctor prescribes the
therapy?
Q: Which
employees are eligible to take FMLA leave?
Q: Do the 12 months of service with the employer have to be continuous
or
consecutive?
Q: Do the 1,250 hours include paid leave time or other absences from
work?
Q: How do I determine if I have worked 1,250 hours in a 12-month period?
Q: Do I have to give my employer my medical records for leave due to a
serious health
condition?
Q: Can my employer require me to return to work before I exhaust my
leave?
Q: Are there any restrictions on how I spend my time while on leave?
Q: Can my employer make inquiries about my leave during my absence?
Q: Can my
employer refuse to grant me FMLA leave?
Q: Will I lose my
job if I take FMLA leave?
Q: Are there other circumstances in which my employer can deny me FMLA
leave or
reinstatement to my job?
Q: Can my employer fire me for complaining about a violation of FMLA?
Q: Does an employer have to pay bonuses to employees who have been on
FMLA
leave?
Q: Under what circumstances is leave designated as FMLA leave and
counted against
the employee's total entitlement?
Q: Can my employer count FMLA leave I take against a no fault absentee
policy?
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.
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Q: How is
the 12-month period calculated under FMLA?
Employers may select one of four options for
determining the 12-month period:
- 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.
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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.
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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.
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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
entitlement.
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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.
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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.
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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 Act (ADA).
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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.
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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.
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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.
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Q: 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.
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Q: How do I determine if I have worked 1,250 hours in a 12-month period?
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.
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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.
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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.
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Q: Are there any restrictions on how I spend my time while on leave?
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.
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Q: Can my employer make inquiries about my leave during my absence?
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.
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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.
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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.
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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 restoration
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 is submitted.
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Q: Can my employer fire me for complaining about a violation of FMLA?
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.
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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.
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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 leave; or,
- 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.
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Q: Can my employer count FMLA leave I take against a no fault absentee
policy?
No. |
