In general, the FMLA allows eligible employees to take up to 12 weeks of unpaid leave for the following reasons:
to recover from illness or pregnancy
to care for sick family members
for qualifying exigencies resulting from the employee’s spouse, child, or parent being notified of an impending call to, or active duty with, the Armed Forces.
In addition to the complexities of navigating the FMLA, employers should be aware that circumstances qualifying for leave under the acts might also trigger other employment laws such as workers’ compensation and discrimination laws. For instance, many workers’ compensation injuries will qualify as serious health conditions under the FMLA. In a parallel manner, chronic health conditions requiring leave may present disability law involvement.
A private employer is covered under the FMLA if the employer employs 50 or more employees each working day for 20 or more full (not necessarily consecutive) calendar workweeks in the current or preceding calendar year. Once a private employer satisfies the 50-employee and 20‑workweek thresholds, the employer remains covered until it no longer employs at least 50 employees during 20 non-consecutive workweeks in both the current and preceding calendar years. The definition for “employee” under the FMLA is relatively broad and includes:
All public employers and educational agencies are covered under the FMLA, regardless of whether they meet the private employer threshold requirements.
For an employee to be entitled to FMLA leave, the employee must meet both of the following criteria:
These eligibility requirements are calculated as of the date the employee commences leave, and not from the date the employee requests leave.
The employee must also be employed at a location where the employer employs at least 50 employees within a 75‑mile radius of the job site where the employee requesting leave is employed. These requirements are calculated from the date the employee requests leave.
According to the new regulations, special hours of service eligibility apply to airline flight crew employees. In order to be eligible for FMLA leave, the airline flight crew employee must have worked or been paid for not less than 60% of the monthly guarantee and must have worked or been paid for not less than 504 hours during the previous 12-month period (not including commute time, vacation, sick, or medical leave).
Under the new regulations, leave for flight crew employees is calculated differently than leave for other employees. Instead of the standard 12 weeks, an airline flight crew employee is entitled to 156 days of FMLA leave for military caregiver leave, but is only entitled to 72 days of FMLA leave if the employee is taking the leave for any of the other qualifying reasons.
An employee need not specifically request protection under the FMLA. Rather, the employee must only provide notice and a qualifying reason for requesting leave to the covered employer. A covered employer must provide an eligible employee with up to 12 weeks of unpaid leave during any 12-month period for any of the following reasons:
A qualifying exigency may include:
If spouses work for the same employer, the FMLA entitles them to an aggregate of 12 weeks of leave per 12-month period for birth, adoption, foster care, or to care for a sick parent. Each spouse, however, is entitled to the remainder of his/her 12-week entitlement for any other qualifying leave. See:
A “serious injury or illness” for a current service member is one that may render the service member medically unfit to perform duties and for which he/she is undergoing medical treatment, recuperation, or therapy, or otherwise on the military’s temporary disability retired list. The 2013 regulations expanded the definition to include injuries or illnesses that existed before the beginning of the member’s active duty and were aggravated by service in the line of duty on active duty in the Armed Forces. More information about military caregiver leave is located at:
A serious injury or illness for a covered veteran means an injury or illness that was aggravated by the member in the line of duty on active duty in the Armed Forces and manifested itself before or after the member became a veteran, and meets any of the following criteria:
The FMLA defines the term “serious health condition” as an illness, injury, impairment, or physical or mental condition involving either one of the following:
Absence plus treatment - A period of incapacity of more than three consecutive days that also involves either two or more treatments by a healthcare provider, or treatment by a healthcare provider that results in a regimen of continuing treatment and supervision.
“Incapacity” is the inability to work, attend school, or perform other regular daily activities due to the serious health condition, treatment for the serious health condition, or recovery from the serious health condition.
“Treatment” includes (but is not limited to) examinations to determine if a serious health condition exists and evaluations of the condition. Treatment does not include routine physical examinations, eye examinations, or dental examinations.
A “regimen of continuing treatment” includes, for instance, a course of prescription medication (for instance, an antibiotic) or therapy requiring special equipment to resolve or alleviate the health condition (for instance, oxygen). A regimen of continuing treatment that includes the taking of over-the-counter medications (such as aspirin, antihistamines, or salves), bed rest, drinking fluids, exercise, or other similar activities that can be initiated without a visit to a healthcare provider is not alone sufficient to constitute a regimen of continuing treatment for purposes of the FMLA.
Pregnancy - A period of incapacity due to pregnancy or for pre-natal care, including severe morning sickness.
Chronic conditions requiring treatment - Any period of incapacity due to a chronic condition requiring treatment. A chronic serious health condition is one that:
requires periodic visits or treatments by a healthcare provider
continues over an extended period of time
may cause episodic periods of incapacity.
Treatment or a visit to a healthcare provider is not required for every absence. Examples of chronic conditions requiring treatment are diabetes and asthma. The regulations define “periodic visits” as at least twice a year.
Permanent or long-term conditions requiring supervision - A period of incapacity for permanent or long-term conditions requiring supervision and involving treatments that may not be effective. Examples of such conditions are Alzheimer’s disease and terminal cancer.
Multiple treatments for non-chronic conditions - A period of absence to receive multiple treatments by a healthcare provider for a condition that would likely result in incapacity for more than three consecutive calendar days if left untreated. Examples of such treatments include chemotherapy, radiation treatments, and physical therapy.
Several types of illnesses or injuries are specifically excluded from the definition of serious health condition in the regulations. Some examples include the following:
The FMLA defines “healthcare provider” as a Doctor of medicine or osteopathy who is authorized to practice medicine or surgery (as appropriate) by the state in which the doctor practices, or any other person determined by the Secretary of Labor to be capable of providing healthcare services. The regulations include in this definition podiatrists, dentists, clinical psychologists, optometrists, and chiropractors (limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by X-ray) that are authorized to practice in the state. Also included in the regulations are nurse practitioners, nurse midwives, clinical social workers, and physician assistants who are authorized to practice in the state and performing within the scope of their practices as defined under state law.
Employees are entitled to 12 weeks of FMLA leave during any 12-month period. The 12-month period may be calculated by any of the following methods:
Most employers prefer the rolling method or the counting forward method because such methods prevent an employee from joining multiple leave periods together by taking 12 weeks of leave at the end of a calendar year and then 12 weeks of leave at the beginning of the next calendar year for a total of 24 consecutive weeks. The employer must designate which method it wishes to use to calculate the 12-month leave periods and apply the method uniformly and consistently. If the employer fails to select a method and notify the employees of which method applies, the method most beneficial to the employee will apply. If an employer changes methods, it must notify employees at least 60 days in advance of implementing and enforcing such change.
The FMLA defines “intermittent leave” as leave taken in separate blocks of time due to a single qualifying condition. A “reduced leave schedule” is a change from full time to part time employment. An employee is entitled to take intermittent FMLA leave or reduced leave where it is “medically necessary” to care for a serious health condition of the employee or the employee’s immediate family member. An employee may also take intermittent or reduced schedule leave for a service member’s illness or injury if there is a medical need for leave that is best accommodated through intermittent leave. With respect to intermittent FMLA leave or reduced leave related to the adoption or birth of a child, however, an employee can take such leave only with the employer’s consent.
If an employee has made a request for intermittent leave or a reduced leave schedule, an employer is entitled to temporarily transfer employees to an “alternative position” for the duration of the intermittent or reduced leave, provided that the employee both:
Benefits may be reduced proportionate to the number of hours worked only if such reduction is a normal practice. The employer may only charge the employee’s FMLA leave for the actual amount of leave taken. In other words, employees may not be required to take more FMLA leave than necessary to address the circumstances that caused the need for leave.
Employers are permitted to track FMLA leave in the shortest period of time that their payroll systems use, provided it is one hour or less. For airline flight crew employees, employers must account for intermittent or reduced schedule FMLA leave in an increment no greater than one day.
While the act does not require a covered employer to pay employees during FMLA leave (unless the employer requires substitution of paid leave – see page 246, discussing substitution of paid leave in Designation notice requirements), the employer must continue to provide eligible employees any employment benefit that they may have accrued prior to beginning FMLA leave. If benefits are added or changed during the leave, the employee is also entitled to those modifications. The key here is that the employee maintains the benefits under the same conditions as those existing before the leave.
For instance, a covered employer must continue to provide coverage under its group health plan to the employee during the leave period under the same terms as if the employee continued employment. If employees regularly pay a portion of the insurance premiums, an employee should continue to make such payments while on leave. Even if an employee does not pay his/her portion of premiums during leave, the employer should pay the premiums on the employee’s behalf and attempt to recoup payment upon the employee’s return. If the employee returns to work following the leave period, the employee is immediately entitled to reinstatement of insurance coverage. If the employee fails to return to work, an employer is entitled to recover premiums paid for maintaining coverage so long as the failure to return is not due to a serious health condition of the employee or other circumstances beyond his/her control. Although a covered employer’s FMLA obligations end when the employment relationship ends, the employer may still have obligations to maintain health benefits as required by the Consolidated Omnibus Budget Reconciliation Act (COBRA) or Colorado law.
Employees also may not be excluded from perfect attendance bonuses, safety bonuses, or similar bonuses because they are on FMLA leave. Similarly, an employee on FMLA leave will remain entitled to any unconditional pay increases granted during the leave.
An employee, however, is not entitled to the accrual of any seniority or employment benefits during the period of leave. For instance, if an employee’s bonus or pay increase is calculated based on work time or accrued earnings, the employee has not accrued such hours or earnings during the leave period and, therefore, an employer can pay the employee a lesser amount than other employees. However, any hours or earnings accrued at the time the leave began must be used toward calculating such bonuses or pay increases upon the employee’s return from FMLA leave. Similarly, unpaid FMLA leave periods need not be treated as credited service for purposes of benefit accrual, vesting, or eligibility to participate in pension or other retirement plans.
Within a reasonable time after the employee is able to return from FMLA leave, the employer must restore the employee to his/her former job or to an “equivalent” position. An “equivalent” position is one that is virtually identical to the employee’s former position in terms of pay, benefits, working conditions, duties, skill, authority, privileges, and status. The position must be in the same or geographically similar worksite with an equivalent work schedule and shift.
If an employee is unable to perform an essential function of the position because of a physical or mental condition, the employee has no right to be restored to another position under the FMLA. In many circumstances, however, the Americans with Disabilities Act (ADA) may dictate further obligations for the employer.
A reinstated employee has no greater entitlement to reinstatement or as previously discussed, other benefits and conditions of employment, than if the employee had been continuously employed during the leave period. For instance, if the employee’s position was eliminated in a non-discriminatory reduction in force (RIF), the employee informs the employer that he/she does not intend to return to work, or the employee fails to return after exhausting FMLA benefits, the employer’s FMLA obligations end. An employer has the burden to prove that an employee would have been terminated if the employee had not taken FMLA leave in order to deny restoration to employment.
An exception to the FMLA’s reinstatement requirement permits employers to exclude salaried employees who are among the highest paid 10% of all employees (both salaried and non-salaried) in the employer’s workforce within 75 miles of the facility where the employee works. This exception, referred to in the regulations as the “key employee” exception, permits an employer to refuse reinstatement if:
The employee need not specifically assert rights under the FMLA or even mention the FMLA, but may provide adequate notice by only stating that leave is needed for a potentially FMLA-qualifying reason. As soon as the employee informs the employer that an absence may potentially qualify under the FMLA, the employer has the burden to determine whether the leave is actually for an FMLA-qualifying reason. The employer may request medical certification (see page 247, Medical certification form) to determine if the reason for the leave qualifies as a serious health condition.
An employer may require an employee to comply with the employer’s usual and customary notice and procedural requirements for requesting leave. However, if a collective bargaining agreement, state law, or an employer’s leave plan provides for lesser notice requirements, an employer cannot require compliance with the stricter FMLA requirements.
Where an eligible employee plans to take foreseeable leave in the case of expected birth, placement for adoption or foster care, or planned medical treatment for a serious health condition, the employee must provide at least 30-days’ notice of the employee’s intention to take leave before leave is to begin. If the employee fails to give 30-days’ notice for a foreseeable leave with no reasonable excuse for the delay, the employer may deny the taking of leave until at least 30 days after the employee provides notice, provided that the employee had actual notice of the FMLA notice requirements. If the employee intends to take leave in less than 30 days or otherwise changes the start date, the employee must provide notice “as soon as practicable,” which ordinarily may be satisfied by at least verbal notification to the employer, within one or two business days of when the need for leave becomes known to the employee. If an employee takes leave for planned medical treatment, the employee must make a reasonable effort to schedule the treatment in a manner that will not unduly disrupt the employer’s operations, subject to approval by a healthcare provider.
Where the employee takes unforeseeable leave, the employee must provide such notice as is practicable, or within two or three working days of learning of the need for leave, except in extraordinary circumstances where such notice is not feasible.
The FMLA regulations clearly spell out the “notice requirements” an employer owes to its employees. In an effort to clarify an employer’s obligations, the regulations have divided the notice requirements into four separate categories:
Poster - Covered employers are required to post notice of FMLA rights conspicuously and prominently (even if there are no eligible employees at a particular worksite). Electronic posting is sufficient to meet the posting requirement if all employees have access to a computer. If a significant portion (usually 10%) of the workforce is not literate in English, the posting must also be in the language in which the employees are literate. Employers in violation of FMLA’s posting requirements may suffer civil penalties of up to $189 per violation and forfeit their rights to take adverse action against employees who fail to satisfy notice requirements for taking FMLA leave, including denying FMLA leave. Employers can obtain copies of the new mandatory FMLA poster that reflects the most recent FMLA amendments through the U.S. Department of Labor (DOL) website:
Policy - Covered employers who have any eligible employees must provide general notice of FMLA rights to each employee by including it in employee handbooks, or if there is no handbook, by distributing a copy of the general notice to each new employee upon hiring. Distribution of the FMLA policy can also be done electronically. Employers may duplicate the text of the DOL notice, which may be obtained from the DOL or the local offices of the Colorado Department of Labor and Employment.
The eligibility notice is a notice that employers must give employees who request leave or need leave informing them whether they meet the eligibility requirements of the FMLA (for instance, length of employment, number of employees within a 75-mile radius). It does not inform the employee whether or not the reason for leave has been approved (for instance, whether or not the employee’s condition is a serious health condition or whether the employee has a qualifying exigency).
Timing - When an employee requests FMLA leave, or when the employer acquires knowledge that an employee’s leave may be for an FMLA-qualifying reason, the employer must notify the employee of the employee’s eligibility to take FMLA within five business days.
Content of eligibility notice - The eligibility notice must state whether the employee is eligible for FMLA leave. If the employee is not eligible for FMLA leave, the eligibility notice must state at least one reason why the employee is not eligible, including (as applicable) the number of months the employee has been employed by the employer or the number of hours of service the employee is employed at a worksite where 50 or more employees are employed by the employer within 75 miles of that worksite. While notification of eligibility may be oral or in writing, it is recommended that employers provide written notice in order to demonstrate that the notice was provided.
The rights and responsibilities notice is a notice that provides employees who need FMLA leave with general information about their rights and responsibilities under the FMLA. An employee must be given a rights and responsibilities notice each time an eligibility notice is given. A rights and responsibilities notice must include the following information:
Leave may be designated and counted against the employee’s annual FMLA leave entitlement if qualifying and the applicable 12-month period for FMLA entitlement.
Any requirements for the employee to furnish certification of a serious health condition, serious illness or injury or qualifying exigency arising out of the active-duty or call to active-duty status and the consequences of failing to do so.
The employee’s right to substitute paid leave, whether the employer will require the substitution of paid leave, conditions related to any substitution and the employee’s entitlement to unpaid FMLA leave if the employee does not meet conditions for paid leave.
Any requirement for an employee to make any premium payments to maintain health benefits and arrangements for making such payments and the consequences of failure to make such payments on a timely basis.
Employee’s status as a key employee and the potential consequence that restoration may be denied following FMLA leave, explaining the conditions required for such denial.
Employee’s right to maintenance of benefits during the FMLA leave and restoration into the same or an equivalent job upon return from FMLA leave.
The employee’s potential liability for payment of health benefits paid by employer during employee’s unpaid FMLA leave if the employee fails to return to work after leave.
The designation notice is a notice that the employer must give employees who have requested or need FMLA leave, informing them whether that leave has been approved and will be counted as FMLA leave or that the leave has been denied.
When the employer has enough information to determine whether the leave is being taken for an FMLA-qualifying reason, the employer must notify the employee whether the leave will be counted as FMLA leave within five business days.
The designation notice must be in writing and must notify the employee that the employer has determined that the leave does or does not qualify for FMLA.
If the employer requires paid leave to be substituted for unpaid FMLA leave, or that paid leave taken under the existing leave plan be counted as FMLA leave, the employer must inform the employee of this designation at the time of designating the FMLA leave.
If the employer will require the employee to present a fitness-for-duty certification to be restored to employment, the employer must provide notice of such requirement with the designation notice, and must include a list of essential job functions. If the employee handbook describing the leave policy clearly provides that a fitness-for-duty certification is required in specific circumstances, written notice is not required, but the employer must give oral notice no later than when the designation notice is given.
The employer must notify the employee as to the amount of leave counted against the employee’s FMLA leave entitlement.
The FMLA imposes strict recordkeeping requirements. Covered employers must make, keep, and preserve records pertaining to their obligations under the FMLA in accordance with section 11(c) of the Fair Labor Standards Act (FLSA) and FMLA regulations. Employers must keep records for at least three years and make them available for inspection, copying, and transcription by the DOL upon request. Employers must maintain records of the following information:
basic payroll and employee identification data
dates of FMLA leave
the hours of leave if FMLA leave is taken in increments of less than one day
copies of employee notices of leave and general and specific notices given to employees
documents describing employee benefits and employer policies and practices regarding the taking of paid and unpaid leave
premium payments of employee benefits
records of disputes between the employee and employer regarding designation of FMLA leave.
Note: Information relating to medical certifications, re-certifications, or medical histories of employees or family members (created for the purpose of FMLA leave) must be maintained as confidential medical records in separate files from the usual personnel files.
When an employee submits a request for FMLA leave related to a serious health condition, an employer may require the employee to submit a medical certification form, signed by a healthcare provider, indicating that the employee (or the employee’s family member) does in fact suffer from a serious health condition. Normally, an employer should make the request for written certification within two days of receiving notice of leave from the employee and can provide the employee with 15 days to respond to the request by certification, or as soon as reasonably possible due to the circumstances.
Once the employee has submitted a complete and sufficient medical certification, the employer cannot request additional information from the healthcare provider. However, the employer’s human resources department or leave administrator (not the employee’s supervisor) can contact the healthcare provider after the employee has been given the opportunity to cure any deficiencies in order to authenticate or clarify certification. If the employer has reason to doubt the validity of the certification, then it may require the employee to obtain a second or third opinion from another healthcare provider at the employer’s expense, provided that the healthcare provider is not employed by the employer on a regular basis. Upon request, employers must provide an employee with copies of second and third opinions within five business days.
Certification is generally sufficient if it states the date on which the serious health condition began, the probable duration of the condition, the appropriate medical facts within the knowledge of the healthcare provider regarding the condition, and a statement that the employee is unable to perform the functions of the employee’s position.
Employers may also require employees to submit a timely, complete, and sufficient certification to support a request for FMLA leave due to a qualifying exigency or for military caregiver leave due to a serious illness or injury. Sample forms are provided on the DOL’s website at:
The statute and regulations governing family and medical leave are enforced by the Wage and Hour Division of the DOL’s Employment Standards Administration. Most violations of the FMLA are the result of employer confusion in interpreting and implementing the act, as opposed to willful violations. Common violations committed by employers include the following:
failure to notify an employee of his/her FMLA rights
failure to notify an employee that leave counted towards the 12-week FMLA entitlement
failure to grant leave to provide care to a family member with a serious health condition
termination of an employee during or at the conclusion of FMLA leave.
An eligible employee may file a private civil action against an employer in state or federal court for FMLA violations. An employee must file such lawsuit within two years of the date of the alleged violation for ordinary damages, or within three years for willful violations. Unlike other civil rights statutes, an employee enforcing his/her rights under the FMLA is not required to file a complaint with the Wage and Hour Division prior to filing a civil lawsuit, although such an employee is entitled to do so.
The Colorado Healthy Families and Workplaces Act requires all Colorado employers to provide employees with up to six days, or 48 hours, of earned paid sick leave.
Employees begin to accrue sick leave immediately upon hire and may use such leave as soon as it is accrued.
An employee earns one hour of paid sick leave for every 30 hours he or she works , up to 48 hours of paid sick leave per year, unless the employer voluntarily selects to provide a higher limit to its employees.
Employees may use accrued paid sick leave for the following reasons:
The employee (or a family member he or she needs to care for) has a mental or physical illness, injury or health condition that prevents him or her from working.
The employee (or a family member he or she needs to care for) needs to obtain a medical diagnosis, are or treatment of a mental or physical illness, injury or health condition.
The employee (or a family member he or she needs to care for) needs to obtain preventative medical care.
The employee or his or her family member has been a victim of domestic abuse, sexual assault or harassment and needs to:
Due to a public health emergency a public official has ordered the closure of the employee's place of business or the school or place of care of the employees' child and the employee needs to be absent from work to care for the child.
Employees must take paid sick leave in no less than one-hour increments, unless the employer chooses to permit leave to be taken in smaller increments. Employers may loan paid sick leave to an employee who has not yet accrued it.
The employer may not require the employee to search for and find a replacement worker for their absence.
Requests for paid sick leave may be made orally, in writing, electronically or by any other means acceptable to the employer. When possible, the employee must include the expected duration of the absence in the request.
The employer may establish a Company policy that contains reasonable procedures of the employee to provide notice when the use of sick leave is foreseeable, but an employer cannot deny paid sick leave the employee based on noncompliance with such a policy.
While employees may carry over up to 48 of unused paid sick leave per year, the employer can limit to the amount of leave to be taken to 48 hours per year.
There is no obligation on employers to pay out unused, accrued paid sick leave at separation, regardless of the reason for the separation.
If an employer rehires a separated employee within six months of the employee’s separation, the employer must reinstate any unused accrued paid sick leave the employee had during the previous employment.
Employers must retain records for each employee for a two-year period, documenting hours worked, paid sick leave accrued and paid sick leave utilized.
Employers must notify its employees in writing that they are entitled to paid sick leave. The Colorado workplace Public Health Rights Poster must be posted in a conspicuous place where all employees can see it . In addition, employers must distribute a copy of the Interpretative Notice & Formal Opinion: #6A to each of its employees. The poster and required notice must be provided to employees in any language that is the first language spoken by at leave 5% of the workforce.