The Complexity of FMLA
The Family Medical Leave Act was passed in February of 1993. It is one of the more complex acts when dealing with employer and employee regulations. The following information is the general federal rulings on the act. Each section of the act contains great details which makes it difficult to follow. The regulations may have additions or overlaps when comparing both state and federal regulations.
HRSentry is a clear, simple and concise way to get all the FMLA information you need to ensure the act is being carried out legally at your organization.
Family Medical Leave Act
What the Law States
If an employee who has worked for at least twelve months (whether or not consecutive) and for at least 1,250 hours during the previous twelve months he or she is entitled to take Family Medical Leave under specific circumstances. Changes Effective January 2008
Caregiver and Active Duty Leave
Caregiver Leave: FMLA-eligible employees who are the spouse, child, parent, or next of kin to a service member who has been seriously injured (including illness) while on active duty can take up to 26 weeks of unpaid leave in a 12-month period to care for the service member. Important: Where appropriate, all existing provisions of the FMLA apply, including the intermittent leave, the substitution of paid leave, and the notice provisions. This amendment came into effect on January 28th, 2008.
Active Duty Leave: FMLA amendment an employee may take FMLA leave for "any qualifying exigency" arising out of the fact that his/her spouse, child, or parent is on active duty or has been notified of an active-duty call. Amount of leave available: up to 12 weeks in a 12-month period (i.e., the usual FMLA leave allotment).
According to the DOL, this amendment won't become effective until final regulations defining any qualifying exigency are issued. In the interim, the DOL advised employers to provide this type of leave. Here, too, the regular FMLA provisions apply, so when the need for leave is foreseeable, employees must provide their employers with reasonable and practicable notice. Also, employers may require that leave requests be supported by certification.
Active Duty Leave: FMLA amendment an employee may take FMLA leave for "any qualifying exigency" arising out of the fact that his/her spouse, child, or parent is on active duty or has been notified of an active-duty call. Amount of leave available: up to 12 weeks in a 12-month period (i.e., the usual FMLA leave allotment).
According to the DOL, this amendment won't become effective until final regulations defining any qualifying exigency are issued. In the interim, the DOL advised employers to provide this type of leave. Here, too, the regular FMLA provisions apply, so when the need for leave is foreseeable, employees must provide their employers with reasonable and practicable notice. Also, employers may require that leave requests be supported by certification.
Qualifications and Acceptable Terms of Leave
The eligible employee is entitled to a total of 12 workweeks of leave during any 12-month period for one or more of the following:
- pregnancy or the birth of a child;
- placement of a child with the employee for adoption or foster care;
- the serious illness of the employee's child, stepchild, or ward who lives with the employee, foster child, parent, or spouse; or
- the employee's own serious illness.
"Serious illness" is defines as an accident, disease, or physical or mental condition, including illness, injury, or impairment that
1. Poses imminent danger of death
2. Requires inpatient care in a hospital, hospice, or nursing home
3. Requires continuing treatment, including outpatient, by a health care provider
Exclusions
- Any Federal officer or employee covered under subchapter V of chapter 63 of title 5, United States Code.
View US Code - Any employee of an employer who is employed at a worksite at which such employer employs less than 50 employees if the total number of employees employed by that employer within 75 miles of that worksite is less than 50.
Employment Benefits
When on leave federal requirements include a continuation of employment benefits. Meaning all benefits provided or made available to employees by an employer, including group life insurance, health insurance, disability insurance, sick leave, annual leave, educational benefits, and pensions, regardless of whether such benefits are provided by a practice or written policy of an employer or through an "employee benefit plan", of the Employee Retirement Income Security Act of 1974. Substitution of Leave
During Birth or Adoption of Child; or Serious Health Condition
An eligible employee may elect, or an employer may require the employee, to use any accrued paid vacation leave, personal leave, or medical or sick leave, for any part of the 12-week period of such.However, nothing in this title shall require an employer to provide paid sick leave or paid medical leave in any situation in which such employer would not normally provide any such paid leave.
Foreseeable Leave
REQUIREMENT OF NOTICEIn any case in which the necessity for leave under FMLA is foreseeable based on an expected birth or placement, the employee shall provide the employer with not less than 30 days' notice, before the date the leave is to begin, or of the employee's intention to take leave, except that if the date of the birth or placement requires leave to begin in less than 30 days, the employee shall provide such notice as is practicable.
DUTIES OF EMPLOYEE
In any case in which the necessity for leave is foreseeable based on planned medical treatment, the employee
-Shall make a reasonable effort to schedule the treatment so as not to disrupt unduly the operations of the employer, subject to the approval of the health care provider of the employee or the health care provider of the son, daughter, spouse, or parent of the employee, as appropriate; and
-Shall provide the employer with not less than 30 days' notice, before the date the leave is to begin, or of the employee's intention to take leave, except that if the date of the treatment requires leave to begin in less than 30 days, the employee shall provide such notice as is practicable.
Certification Request by Employer
And What the Certification Must State
An employer may require that a request for leave be supported by a certification issued by the health care provider of the eligible employee or of the son, daughter, spouse, or parent of the employee, as appropriate. The employee shall provide, in a timely manner, a copy of such certification to the employer.
The US Department of Labor provides a certification form
Form WH-380
The US Department of Labor provides a certification form
Form WH-380
- The date on which the serious health condition commenced
- The probable duration of the condition
- The appropriate medical facts within the knowledge of the health care provider regarding the condition
- (A) For purposes of leave, a statement that the eligible employee is needed to care for the son, daughter, spouse, or parent and an estimate of the amount of time needed for the care
(B) A statement that the employee is unable to perform the functions of the position of the employee - In the case of certification for intermittent leave, or leave on a reduced leave schedule, for planned medical treatment, the dates on which such treatment is expected to be given and the duration of such treatment
- A statement of the medical necessity for the intermittent leave or leave on a reduced leave schedule, and the expected duration of the intermittent leave or reduced leave schedule
- A statement that the employee's intermittent leave or leave on a reduced leave schedule is necessary for the care of the son, daughter, parent, or spouse who has a serious health condition, or will assist in their recovery, and the expected duration and schedule of the intermittent leave or reduced leave schedule
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