The FMLA is a federal statute designed to protect families and employees by allowing them to take leave from work without losing their jobs and benefits. In general, the FMLA requires covered employers to allow an eligible employee to take up to 12 weeks of unpaid leave during a 12-month period for reasons including:
Furthermore, eligible employees who are the parent, child, spouse, or next of kin of covered service members are entitled to take up to a combined total of 26 weeks of leave during a single 12-month period to care for a covered service member with:
Covered service members include veterans who were members of the Armed Forces at any point in time within five years preceding the date on which the veteran undergoes medical treatment, recuperation, or therapy.
An administrative interpretation issued by the U.S. Department of Labor extended the reach of the FMLA to situations in which an employee is acting in loco parentis to a son or daughter. In loco parentis, which means “in place of a parent,” applies when an employee is responsible for the day-to-day care or financial support of a minor child. In August 2013, the DOL affirmed that spousal leave based on same-sex marriages is protected under the FMLA and declared its intention to look for every opportunity to implement the law in a way that provides maximum protection for workers. The DOL updated its regulations in early 2014 to clarify that for FMLA purposes, a marriage is considered to exist based on its validity under the law of the jurisdiction where the parties were married.
In most circumstances, employees returning from FMLA leave must be reinstated to the same or equivalent position, with the same pay and benefits.
Because of the complexity of the FMLA statute and the DOL’s FMLA regulations, many employers have difficulty determining when an employee is entitled to FMLA leave and what conditions may be placed upon such leave. Employers must also consider that Minnesota also has its own Parental Leave Act which provides some of the same coverage as FMLA, although to a lesser extent.
Private and public employers are covered by the FMLA if they meet certain threshold requirements.
The FMLA applies to many public employers, including the United States government, the Minnesota government, and agencies of the United States or of the state of Minnesota. Public employers do not have to meet the 50-employee or 20-week thresholds applicable to private employers.
An employee who first becomes eligible for FMLA protection while on a non-FMLA leave may acquire protection during the employee’s leave. Specifically, any portion of the leave taken for an FMLA-qualifying reason after the employee meets the eligibility requirements would be counted as FMLA protected leave.
An employee is not required to request protection under the FMLA specifically. Rather, the employee must only provide notice requesting leave and a qualifying reason for requesting leave. A covered employer must then provide the eligible employee with up to 12 weeks of unpaid leave during any 12-month period for any of the following reasons:
If spouses work for the same employer, the FMLA entitles them to a combined total 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 the spouse's 12-week entitlement for any other qualifying leave.
The FMLA also provides special protection to family members of military personnel. Specifically:
An eligible employee may take up to 12 weeks of leave due to a “qualifying exigency” arising because that employee’s spouse, child, or parent is on active duty or has been notified of an impending call to active duty status
Under the 2013 amendments to the regulations, a qualifying exigency now exists for parental care. Eligible employees may now take qualifying exigency leave for activities related to the care of a military member’s parent who is incapable of self-care where the need for those activities arise directly from a military member’s covered active duty. Those activities include:
Leave under this provision must be taken during a single 12-month period.
If a Minnesota employer is subject to the requirements of the Minnesota Parental Leave Act, the only situations giving rise to leave under that Act are the birth or adoption of a child. The Minnesota Parental Leave Act does not cover the foster care placement of a child with the employee, nor does it provide leave for any medical reason outside of what an employee would have available under the employer's standard sick leave policy (if the employer has such a policy).
Employees are entitled to up to 12 weeks of FMLA leave during any 12-month period (other than for military caregiver leave, which allows a combined 26 weeks of FMLA leave in a single 12-month period). The FMLA allows an employer to choose among the following four methods when determining the 12-month period (other than for military caregiver leave):
Most employers prefer the latter two methods of determining the 12-month period, because they prevent employees from taking more than 12 weeks of leave at any one time. For example, if the calendar year is used as the 12-month period, it would be possible for an employee to start FMLA leave in October of one year and not return to work until April of the following year.
An employer should designate in advance which method it wishes to use to calculate the 12-month leave periods, and it must then apply the method uniformly and consistently. If the employer fails to select a method and/or to notify the employees as to which method applies, the method most beneficial to each employee will apply. Employers are allowed to change the method of calculation, but only if employees are notified at least 60 days in advance and as long as the employees will receive the full benefit of their 12 weeks. In other words, if an employer changes from calendar year to the “rolling” method, it must allow employees to continue to use the calendar year method until it is more beneficial for them to use the rolling method.
Significantly, calculation of the single 12-month period for military caregiver leave begins on the first day the employee takes leave for this reason and ends 12 months later, regardless of the 12-month period established by the employer for other types of FMLA leave.
An employee does not have to take all 12 weeks of FMLA at once. It can also be taken as intermittent leave or on a reduced leave schedule. “Intermittent leave” means that leave is taken in separate blocks of time due to a single qualifying condition. “Reduced leave schedule” means that the employee works fewer than the employee’s usual number of working hours per workweek or hours per workday.
Assuming that an employer is covered under the FMLA and the employee is eligible for FMLA leave, the employer must allow intermittent leave and or a reduced leave schedule in the following circumstances:
Intermittent leave and/or reduced schedule leave is also available to eligible employees for the birth of a child or placement of a child for adoption or foster care, but only with the consent of the covered employer.
During intermittent leave and or reduced schedule leave, the covered employer may temporarily transfer an employee to an alternative position, but only under the following circumstances:
An employee’s salary may be reduced while on intermittent leave and/or reduced schedule leave, but employee benefits may only be reduced proportionately to the number of hours worked if such reduction is normal practice for the employer.
Employees must make a reasonable effort to schedule treatment so as not to disrupt unduly the employer’s operations. Moreover, employers are not required to account for FMLA leave in increments smaller than one hour just because their payroll systems are capable of tracking smaller time increments. Rather, an employer may choose to account for FMLA leave in any increment not to exceed one hour so long as it matches the smallest increment used by the employer to track any other type of leave.
For instance, if an employer accounts for sick leave in 30-minute increments and vacation time in one-hour increments, FMLA leave must be accounted for in 30-minute increments.
Additionally, employers may not charge FMLA leave for any period of time during which an employee performs work. For example, if an employee needs FMLA leave 45 minutes before the end of the employee’s shift, but the employer tracks all time off in increments of one hour, the employee only can be charged 45 minutes of FMLA leave. Accordingly, employers must be cautious in how they account for FMLA leave.
It is important to consider the definitions contained in the FMLA regulations. Some of the more important definitions are:
While the FMLA does not require a covered employer to pay employees during FMLA leave (unless the employer agrees to substitute paid leave – see Substitution of paid leave), the employer must continue to provide eligible employees any benefits that they may have accrued prior to beginning FMLA leave. If benefits are added or changed during the leave to other employees of a covered employer, the employee on leave is also subject to those modifications.
For example, 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 will have to continue to make such payments while on leave if the employee wants to continue group health plan coverage during the leave. If an employee does not pay the employee's portion of premiums during leave, the employer is not required to pay that portion and can let the policy lapse. However, this can cause problems when the employee returns to work, since the coverage will need to be in place at that time. With some health plans, it is difficult to drop coverage and then reinstate coverage in a timely manner. Therefore, many employers choose to pay the premiums on the employee’s behalf and then to obtain reimbursement from the employee. 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 the employee's control. An employee should note that 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 of 1986 (COBRA).
An employee on FMLA leave will remain entitled to any unconditional pay increases granted during the leave. However, under the new regulations, employers may deny certain bonuses or payments to employees who took FMLA leave if such bonuses or other payments are “based on the achievement of a specified goal such as hours worked, products sold or perfect attendance, and the employee has not met the goal due to FMLA leave.” Significantly, however, FMLA and similar, non-FMLA leave must be treated the same for purposes of determining such bonuses or other payments.
Employers should also note that an employee is not entitled to the accrual of any seniority or employment benefits during the period of leave, although any benefits that accrued before the leave began are unaffected by the leave. At the same time, unpaid FMLA leave periods need not be treated as credited service for purposes of benefit accrual, vesting, or eligibility to participate in employee benefits, unless the terms of the benefit plans require the leave period to be credited service.
In general, after returning from a qualified FMLA leave, an employee must be reinstated to the employee's former job or to an “equivalent” position with equivalent benefits, pay, and other terms and conditions of employment. Reinstatement must occur even if someone else has been hired to take the employee’s position or the former position has been changed because of the employee’s absence.
An “equivalent” position is one that is virtually identical to the employee’s former position in terms of pay, benefits, and working conditions, including privileges and status. Furthermore, it must have the same or substantially the same duties and responsibilities, which must require substantially equivalent skill, effort, responsibility, and authority.
There are a number of exceptions to the general reinstatement rule. One exception to the right to reinstatement exists if an employee is unable to perform an essential function of the position because of a physical or mental condition. For instance, if the employee is on FMLA leave because of a serious health condition, and if the serious health condition continues after the end of the FMLA and renders the employee unable to work or unable to work in the same capacity, the employer is not obligated to reinstate the employee to the employee's former position. However, the ADA may govern such instances, so an employer should seek legal counsel before refusing reinstatement to someone returning from FMLA leave.
A second exception is that an employee who finishes FMLA leave has no greater entitlement to reinstatement than the employee would have had if there had been no absence due to the FMLA leave. For example, if the employee’s position was eliminated in a nondiscriminatory reduction in force, reinstatement is not required. An employer has the burden to prove that an employee would have been terminated even if the employee had not taken FMLA leave in order to deny restoration to employment.
Reinstatement is also not required if the employee informs the employer that the employee does not intend to return to work. Similarly, if the employee fails to return after exhausting FMLA benefits, the employer’s FMLA obligations end. Employers may also deny reinstatement to “key employees” if all of the following are true:
When an eligible employee plans to take foreseeable leave, such as 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 the leave is to begin.
The notice from the employee can be verbal and does not have to mention the FMLA. However, an employer can require an employee to comply with its usual and customary notice and procedural requirements for requesting leave, absent extenuating circumstances. Therefore, it is very important for an employer to train its managers to recognize when FMLA leave may be required and as to what constitutes proper notice under the FMLA.
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 FMLA notice requirements. The employer can also waive the notice requirement, however, waiving it for one employee may set a precedent for other employees.
If the employee intends to take leave sooner than 30 days or otherwise changes the start date for the anticipated leave, the employee must provide notice of any such change “as soon as practicable,” which ordinarily may be satisfied by at least verbal notification to the employer either the same day or next business day after 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 health care provider.
As stated previously, the employee need not specifically assert rights under FMLA or even mention the FMLA, but the employee may only state that leave is needed for a reason that is potentially qualifying under the FMLA. As soon as the employee informs the employer of the need for such an absence, the employer has the burden to determine whether the leave is actually for an FMLA-qualifying reason. If a serious health condition is the reason for the requested FMLA leave, the employer may request medical certification to determine if the reason for the leave qualifies as a serious health condition.
If a collective bargaining agreement, state law, or an employer’s leave plan allows for lesser notice requirements, an employer cannot require compliance with the stricter FMLA requirements. Therefore, it is important for an employer to remember that its sick leave or personal leave policy may relax the notice requirements under FMLA.
If a covered employer provides written guidance concerning leaves, wages, attendance, or similar matters in handbooks or other written policies, the employer must include information concerning FMLA rights and employee FMLA obligations in those written materials. The materials must also include any requirements for medical certifications and fitness-for-duty certifications that the employer will impose. Electronic distribution of this type of notice is permitted.
Even if a covered employer does not have a handbook or other written policies, the employer must still provide written guidance explaining the FMLA to each employee upon hire, either in hard copy or electronically. Employers may use a form prepared by the DOL, known as the Employee Rights and Responsibilities under the Family and Medical Leave Act (WH Publication 1420 – Revised February 2013) to comply with this requirement. Alternatively, employers may use another format so long as the information includes, at a minimum, all of the information contained in the current WH Publication 1420, which is available at:
If a significant portion of the workforce is not literate in English, the notice must be in the language in which the employees are literate. Moreover, if FMLA notices are distributed to sensory-impaired individuals, the notices must comply with applicable requirements under federal and state laws.
A covered employer also has the responsibility to provide employees certain information about their eligibility for FMLA leave within five business days after acquiring knowledge that an employee’s leave may be for an FMLA qualifying reason, absent extenuating circumstances. Many employers use the optional Notice of Eligibility and Rights and Responsibilities form to comply with this requirement, which can be downloaded from the Department of Labor at:
Once an employer has sufficient information to determine whether the leave is being taken for an FMLA-qualifying reason (such as after receiving a completed medical certification), the employer has five business days to notify the employee of that designation, absent extenuating circumstances. Many employers use the optional Designation Notice form from the Department of Labor, which form is available at:
If the employer requires a fitness-for-duty certification before an employee can be restored to employment, this requirement must be contained in the designation notice.
The FMLA regulations provide that an employer’s failure to give notice that the leave has been designated as FMLA leave, standing alone, does not violate the FMLA and that an employee must demonstrate individual harm as a result of the employer’s failure to follow the FMLA notification procedures in order for the employer to be liable.
The FMLA regulations also explicitly permit employers to retroactively designate /leave as FMLA leave, so long as the employer provides the affected employee with the applicable notices and the employer’s failure to make a timely designation does not cause harm or injury to the employee. Employers and employees may, but are not required to, mutually agree to a retroactive designation of FMLA leave.
If an employee provides notice of a subsequent need for FMLA leave during the applicable 12-month period for a different FMLA-qualifying reason and the employee’s eligibility status has not changed, no further eligibility notice must be provided (although a designation notice still is required). On the other hand, if the employee’s eligibility status has changed since the initial eligibility notice was provided, the employer must provide a new notice within 5 business days of acquiring knowledge that the employee’s leave may qualify as FMLA leave, absent extenuating circumstances.
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 permitted.
A poster satisfying the posting requirements and incorporating the new FMLA regulations can be obtained from a Department of Labor office and is also available at:
Again, the posting must be in the language in which the employees are literate. A Spanish version of the poster also can be obtained from a Department of Labor office.
Employers in violation of FMLA’s posting requirements may suffer civil penalties of up to $176 per violation and forfeit their rights to take adverse action, including denying FMLA leave, against employees who fail to satisfy requirements for taking FMLA leave.
Employers should be aware that the FMLA imposes strict recordkeeping requirements. Covered employers must make, keep, and preserve records pertaining to their obligations under FMLA in accordance with section 11(c) of the Fair Labor Standards Act and FMLA regulations. Employers must keep these records for at least three years and make them available for inspection, copying, and transcription by the Department of Labor upon request.
Employers must maintain records of the following information:
Information relating to medical certifications, recertifications, 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.
An employer may require an employee on FMLA leave to substitute any applicable accrued paid leave for unpaid FMLA leave. In the alternative, an employer may permit the employee to make that decision. An employer may not prohibit the employee from making such substitution, however.
If the requirements to qualify for payments under an employer’s temporary disability benefits plan or other paid leave policy are more rigorous than the FMLA requirements, the employee must meet the more stringent eligibility and notification requirements of the plan in order to receive paid benefits under the plan during designated FMLA leave. If an employee receives paid disability benefits during an FMLA-qualifying leave, the provision for substitution of paid leave is applicable, and neither the employer nor the employee may require substitution of paid leave. However, where state law permits, employers and employees may agree to supplement paid disability benefits with accrued paid leave, such as in instances where the employee’s disability benefits only cover a portion of the employee’s wages.
An employee’s ability to substitute accrued paid leave for unpaid FMLA leave is determined by the terms and conditions of the employer's normal leave policy. Accordingly, if an employer requires employees to provide two days’ notice of the need for paid personal time off, such notice requirements may be applied to the substitution of accrued, paid personal time off for unpaid FMLA leave. Similarly, if an employer requires paid sick leave to be used in full-day increments, and the employee requests FMLA leave for a shorter duration of time but wants to substitute paid sick leave, the employee must take the larger increment of leave required under the paid leave policy unless the employer chooses to waive the requirement.
Regardless of whether the leave is paid, the employee’s FMLA-qualifying absence remains protected by FMLA. If an employee uses paid leave under circumstances that do not qualify as FMLA leave, the leave will not count against the 12 weeks of FMLA to which the employee is entitled.
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 health care provider, indicating that the employee does in fact suffer from a serious health condition. The Department of Labor has developed a medical certification form that most employers use. It is available at:
The DOL also has developed medical certifications for situations where the employee’s family member suffers from a serious health condition and for situations where an employee needs leave to care for a covered service member with a serious illness or injury. These forms are available at:
In addition, the Department of Labor has developed a Certification of Qualifying Exigency for Military Family Leave. The Certification can be downloaded at:
An employer should make the request for written certification within five business days of receiving notice of leave from the employee. Employees must, in turn, provide the requested certification within 15 calendar days after the employer’s request, unless it is not practicable under the circumstances or the employer provides the employee with more than 15 calendar days to return the certification.
The 2009 FMLA regulations also permit an employer to contact an employee’s health care provider directly for clarification and authentication of medical certifications (other than those related to military leaves) once certain conditions have been met. First, the employer must specify in writing what information is lacking from the medical certification and provide the employee with seven calendar days to cure the deficiencies and/or authorize the employer to contact the employee’s health care provider. Second, if the employer has the necessary authorization, the new regulations specify that the employer’s contact must be a health care provider, human resource professional, leave administrator, or a management official, and cannot be an employee’s direct supervisor.
Employers generally are prohibited from requesting additional information from an employee’s health care provider. However, the new regulations provide that if an employee’s serious health condition may also be a disability under the ADA, that the FMLA:
If the employer has reason to doubt the validity of a medical certification, then it may require the employee to obtain a second or third opinion from another health care provider at the employer’s (not the employee’s) expense, provided that the health care provider is not employed by the employer on a regular basis. The third health care provider must be designated or approved jointly by the employer and the employee. The third opinion will be considered final and binding.
If an employer finds a certification insufficient, it must provide the employee with a written statement advising the employee what additional information is necessary to make the certification complete and sufficient and the consequences of failure to cure any deficiencies. An employee must be provided with seven calendar days to cure the deficiency, absent situations where the time frame is not practicable despite the employee’s diligent efforts. If the certification’s deficiency is not cured by a resubmitted certification, the employer may deny FMLA leave based on the incomplete and/or insufficient certification.
An employer generally may require recertification for pregnancy, chronic, or permanent/long-term conditions under continuing supervision of a health care provider no more often than once every 30 days and only in connection with an absence, unless the medical certification indicates a minimum duration of a condition is more than 30 days, in which case the employer must wait until that minimum duration expires before requesting a recertification. However, employers need not wait 30 days or the minimum duration of the certification, if longer than 30 days, and if one of the following circumstances applies:
An employer also may require an employee to provide a new medical certification where the employee’s need for FMLA leave due to the employee’s or family member’s serious health condition lasts beyond a single leave year.
The statute and regulations governing family and medical leave are enforced by the Wage and Hour Division of the U.S. Department of Labor’s Employment Standards Administration. Most violations of the FMLA are the result of employer confusion in interpreting and implementing FMLA, as opposed to willful violations.
Common violations committed by employers include the following:
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, but the time period is extended to three years for willful violations. Unlike some other civil rights statutes, an employee enforcing the employee's 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 employee is entitled to do so.
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