Harris Dowell Fisher & Harris, L.C. -- Family & Medical Leave Act FAQ's

work for a covered employer
have worked for their employer for at least 12 months
have worked for at least 1,250 hours over the previous 12 months
work at a location where at least 50 employees are employed by the employer within 75 miles.

Q. What employers are covered?

A. Employers who employ 50 or more employees for each working day in 20 or more calendar weeks of the current or preceding calendar year.

Q. What family and medical reasons to qualify an employee for FMLA leave?

A. FMLA leave may be required for the following reasons, if both the employer and employee are eligible:

Birth of a child to the employee and in order to care for such child
Placement of a child with the employee for adoption or foster care
Serious health condition of the employee
Caring for employee's spouse, child, or parent with a serious health condition.

Q. How is the 12-month period calculated under FMLA?

A. 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 an employee's first FMLA leave begins
a "rolling" 12-month period measured backward from the date an employee uses FMLA leave.

Q. Does the law guarantee pay for time off taken as FMLA leave?

A. No. The FMLA only requires unpaid leave. However, the law permits 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. An employee may also elect to do so.

When paid leave is used for an FMLA-qualifying absence in this manner, it may be counted against the 12-week FMLA leave entitlement.

Q. Does workers' compensation leave count against an employee's FMLA leave entitlement?

A. It can, if the reason for the absence qualifies as a serious health condition under the FMLA.

Q. Can the employer count leave taken due to pregnancy complications against the 12 weeks of FMLA leave for the birth and care of a child?

A. Yes. An eligible employee is entitled to up to 12 weeks of FMLA leave in a 12-month period. If the employee has to use some of that leave for a covered reason other than birth and care of the child, including a serious health condition related to a difficult pregnancy, it may be counted as part of the 12-week FMLA leave entitlement.

Q. Can the employer count time on maternity leave or pregnancy disability as FMLA leave?

A. Yes. Maternity leave for the birth of a child or pregnancy disability leave would be considered qualifying FMLA leave for a serious health condition and may be counted in the 12 weeks of leave.

Q. Can an employee be required to provide medical records to support a request for leave due to a serious health condition?

A. No, not complete medical records. The employee may, however, be required to provide a medical certification confirming that a serious health condition exists.

Q. Are there circumstances in which an employer can deny reinstatement to an employee following FMLA leave?

A. Yes. In addition to denying reinstatement in certain circumstances to "key" employees, employers are not required to 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 also lose their entitlement to FMLA leave.

Employees who are unable to return to work and have exhausted their 12 weeks of FMLA leave 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.

Q. Does an employer have to pay bonuses to employees who have been on FMLA leave?

A. 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.

Q. Can FMLA leave be counted against an employee under a no fault absenteeism policy?

A. No. Since the effect of the FMLA is to legitimize a significant number of absences that otherwise would be counted, employers may be well advised to review and revise no fault absenteeism policies. An exception for approved FMLA leave should be added, and the points required for various levels of discipline adjusted downward somewhat. Employees should be receiving less points, since FMLA-qualifying absences may no longer be held against them.

Q. Where can I learn more about the FMLA?

A. The US Department of Labor's website is probably the best place. Here are a few specific links within that very large site that you may find helpful:

Q. Is everything the Department of Labor (DOL) says about the FMLA legally binding?

A. Good question. Some lawsuits challenging particular FMLA regulations issued by the DOL have been successful. This may open the door to more successful challenges.

Most employers prefer not to be litigating the test cases, spending substantial legal fees just to make new law and beat a federal agency in court. If you feel this way, you're obviously better off complying with the DOL's regulations and interpretations as much as possible. It may not be absolutely necessary, but "better safe than sorry."