FMLA – Family and Medical Leave Act

The Family and Medical Leave Act (FMLA) requires employers to grant unpaid leave for eligible employees who meet certain criteria. FMLA regulations specify the details of who is covered and who isn’t; issues surrounding intermittent leave; which serious health conditions qualify for medical leave and which don’t; and what notification and certification procedures must be followed under the Family and Medical Leave Act.

The FMLA gives eligible employees of a covered employer the right to take up to 12 weeks of unpaid leave in any 12-month period:

• for the birth of a child or the placement of a child with the employee for adoption or foster care,
  
  
• if the employee is needed to care for a family member with a serious health condition,
  
  
• if the employee’s own serious health condition renders the employee unable to do his/her job,
  
  
• for any qualifying exigency arising out of the fact that the employee has a spouse, son, daughter, or parent that is on covered active duty.

Employers must grant a combined total of 26 weeks of unpaid FMLA leave in a single 12-month period:

• to employees who are the spouse, son, daughter, parent, or next of kin of a covered service member who has sustained a serious injury of illness while on active duty so that the employee can care for the service member.

Upon return from leave, the FMLA entitles employees to be restored to the same or an equivalent position with equivalent pay, benefits, and working conditions.

Key Definitions

An eligible employee has worked for at least 12 total (but not necessarily consecutive) months for a covered employer, and put in at least 1,250 hours of service with that employer during the previous 12 months.

 
A covered employer under FMLA employs 50 or more employees, at one or more sites within a 75-mile radius, for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year.

 
Covered family members include a spouse, son, daughter, or parent.

• A spouse means a husband or wife as defined or recognized under state law for purposes of marriage in the state where the employee resides.  It includes common law marriages in states where it is recognized, but does not include unmarried domestic partners.
  
  
• For purposes of FMLA leave taken for birth or adoption, or to care for a family member with a serious health condition, a son or daughter is defined as a biological, adopted, foster, or stepchild, a legal ward, or a child of a person standing in loco parentis, who is under 18 years old, or is 18 or older and incapable of self-care because of a mental or physical disability.
  
  
• For purposes of FMLA leave for a qualifying exigency, a son or daughter is defined as an employee’s biological, adopted, or foster child, stepchild, legal ward, or a child for whom the employee stood in loco parentis, who is on covered active duty, and who is of any age.  Note: This does not alter the definition of son or daughter for the purpose of leave for other FMLA-qualifying reasons.
  
  
• For purposes of military caregiver leave, a son or daughter is defined as the covered service member’s biological, adopted, or foster child, stepchild, legal ward, or a child for whom the covered service member stood in loco parentis, and who is of any age.  Note: This does not alter the definition of son or daughter for the purpose of leave for other FMLA-qualifying reasons.
  
  
• A parent is a biological, adoptive, step, or foster parent or someone who stood in place of a parent to an employee when the employee was a son or daughter. It does not include parents-in-law.  Although some states allow an employee to take time off for other family members, the FMLA does not require family leave for a person in any other family relationship.
  
  
• For purposes of military caregiver leave, a parent is defined as the covered service member’s biological, adoptive, step, or foster father or mother, or any other individual who stood in loco parentis to the service member.  Parents-in-law are not included.
  
  
• For purposes of military caregiver leave, next of kin is defined as the service member’s nearest blood relative, other than the service member’s spouse, parent, son, or daughter, in the following order of priority: blood relatives who have been granted legal custody of the service member, brothers and sisters, grandparents, aunts and uncles, and first cousins, unless the service member has specifically designated in writing another blood relative as his/her nearest blood relative.

In cases of adoption, FMLA requires the use of licensed adoption agencies; foster care requires state action, rather than just an informal arrangement to take care of another person’s child.

 
A serious health condition is defined as an illness, injury, impairment, or physical or mental condition that involves:

1. Any period of incapacity or treatment in connection with or consequent to inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical care facility.
   
   
2. Any period of incapacity requiring absence from work, school, or other regular daily activities of more than three consecutive, full calendar days, that also involves continuing treatment by a health care provider.  Continuing treatment involves either two visits to a health care provider or one visit and a regimen of continuing treatment.
   
   The two visits must occur within a 30-day period, which begins with the first day of incapacity.  The first visit must occur within seven days of the first day of incapacity, absent extenuating circumstances that prevent the follow-up visit from occurring as planned by the health care provider (e.g., there are no available appointments during the 30-day period).
   
   Where the employee’s serious health condition involves one visit to a health care provider, plus a regimen of continuing treatment, this one visit must also occur within seven days of the first day of incapacity.
   
   
3. Continuing treatment by a health care provider for a chronic or long-term health condition that is incurable or so serious that, if not treated, would likely result in a period of incapacity of more than three calendar days or for prenatal care.
   
   A chronic serious health condition requires periodic treatment by a health care provider or a nurse under direct supervision of a health care provider that occurs at least twice a year.  The determination as to whether two treatments are necessary must be made by the health care provider.

Examples of serious health conditions include, but are not limited to: heart conditions, back conditions, respiratory conditions, nervous disorders, arthritis, appendicitis, emphysema, and most cancers.

Qualifying exigencies are defined as:

1. Short-notice deployment.  When the notice of an impending call or order to covered active duty is seven calendar days or fewer prior to the date of deployment.
   
   
2. Military events and related activities.  To attend any official ceremony, program, or event sponsored by the military, or to attend family support and assistance programs and informational briefings sponsored or promoted by the military, military service organizations, or the American Red Cross that are related to the covered active duty of a covered military member.
   
   
3. Childcare and school activities.  To arrange childcare or to attend certain school activities for a son or daughter when the need arises due to covered active duty.
   
   
4. Financial and legal arrangements.  To make or update financial or legal arrangements to address the covered military member’s absence.
   
   
5. Counseling.  To attend counseling for the covered military member or their son or daughter when the need for counseling arises from the covered active duty of the covered military member.  This provision is intended to cover counseling that is not already covered by the FMLA, such as counseling provided by a military chaplain, who does not meet the FMLA’s definition of a health care provider.
   
   
6. Rest and recuperation.  To spend time with a covered military member who is on short-term, temporary rest and recuperation leave during the period of deployment.  Eligible employees may take up to five days of leave for each instance of rest and recuperation.
   
   
7. Post-deployment activities.  To attend arrival ceremonies, reintegration briefings and events, and any other official ceremony or program sponsored by the military for a period of 90 days following the termination of covered active duty, and to address issues arising from the death of the covered military member while on covered active duty status.
   
   
8. Additional activities.  The employer and employee can agree on other events that qualify for leave, and the timing and duration of such leave.

For purposes of qualifying exigency leave, covered active duty is defined to mean: 

• duty during the deployment of the member with the Armed Forces to a foreign country, in the case of a member of the regular component of the Armed Forces; and
  
  
• duty during the deployment of the member with the Armed Forces to a foreign country under a call or order to active duty, in the case of a member of a reserve component of the Armed Forces.

A covered service member is defined as: 1) a member of the Armed Forces (including a member of the National Guard or Reserves) who is undergoing medical treatment, recuperation, or therapy; is otherwise in outpatient status; or is otherwise on the temporary disability retired list for a serious injury or illness, or 2) a veteran who is undergoing medical treatment, recuperation, or therapy for a serious injury or illness and who was a member of the Armed Forces (including a member of the National Guard or Reserves) at any time during the five years preceding the date on which the veteran undergoes that medical treatment, recuperation, or therapy.

Incapable of self-care means that the individual requires active assistance or supervision to provide daily self-care in several of the “activities of daily living.”  These include grooming, dressing, eating, cooking, cleaning, shopping, taking public transportation, paying bills, maintaining a residence, and using telephones and directories.

Mental or physical disability means an impairment that substantially limits one or more of the major life activities of an individual.

For purposes of military caregiver leave, the terms “serious health condition” and “serious injury or illness” are not interchangeable.  Plus, the definition of a serious injury or illness differs slightly based on whether the covered service member is a member of the Armed Forces or is a veteran.  Specifically:

• In the case of a member of the Armed Forces, a serious injury or illness is defined as an injury or illness that was incurred by the member in the line of duty on active duty in the Armed Forces (or existed before the beginning of the member’s active duty and was aggravated by service in the line of duty on active duty in the Armed Forces) and that may render the member medically unfit to perform the duties of the member’s office, grade, rank, or rating.
  
  
• In the case of a veteran of the Armed Forces, a serious injury or illness is defined as an injury or illness that was incurred by the member in the line of duty on active duty in the Armed Forces (or existed before the beginning of the member’s active duty and was aggravated by service in the line of duty on active duty in the Armed Forces) and that manifested itself before or after the member became a veteran.

Determining A 12-Month Period

The FMLA gives employers four methods for computing the 12-month period in which employees may receive 12 weeks of FMLA leave.  An employer is allowed to choose any of these methods, as long as it is applied consistently and uniformly to all employees.

1. The calendar year.
   
   
2. Any fixed 12-month “leave year,” such as a fiscal year, a year required by state law, or a year starting on an employee’s anniversary date.
   
   (Under these two options, employees would be entitled to take up to 12 weeks of FMLA leave at any time in the fixed 12-month period selected.  Example: An employee could take 24 consecutive weeks of FMLA leave by scheduling 12 weeks of leave at the end of the calendar year and 12 weeks at the beginning of the following year.)
   
   
3. The 12-month period measured forward from the date an employee’s first FMLA leave begins.  An employee would be entitled to 12 weeks of leave during the year beginning on the first date FMLA leave is taken.  The next 12-month period would begin the first time FMLA leave is taken after completion of any previous 12-month period.
   
   Example: An employee takes a 12-week FMLA leave beginning on September 1 of one year.  He/she would not be eligible for another 12 weeks of leave until September 1 of the following year.  If four weeks are taken beginning October 1 of that following year, the employee has until October 1 of the year after that to use the remaining eight weeks.
   
   
4. A “rolling” 12-month period measured backward from the date an employee uses any FMLA leave.  Each time an employee takes FMLA leave, the remaining leave entitlement would be any balance of the 12 weeks which has not been used during the immediately preceding 12 months.
   
   Example: If an employee used four weeks beginning February 1 of one year, four weeks beginning June 1 of the same year, and four weeks beginning December 1 of the same year, the employee would not be entitled to any additional leave until February 1 of the following year.  However, on February 1 of the following year, the employee would only be entitled to four weeks of leave; on June 1 of the same year, the employee would be entitled to an additional four weeks, etc.
   
   Note: The “rolling” method is the best way to prevent “stacking” of back-to-back leave entitlements.

In order to change calculation methods, an employer must give at least 60 days’ notice to all employees, and the transition must allow employees to retain the full 12 weeks of leave under whichever method affords the greatest benefit to the employees.  It is a violation to implement a new method in order to avoid the Act’s leave requirements.

Intermittent Or Reduced Schedule Leave

An intermittent or reduced leave schedule may be taken for the serious health condition of the employee or employee’s family member.  The employer and employee must agree first before either of these leave schedules may be used for the birth or placement of a child.  Both qualifying exigency leave and military caregiver leave can be taken on an intermittent or reduced schedule leave basis when necessary.

Intermittent leave is taken in separate blocks of time as needed, rather than in one continuous period of time.  Periods of leave may range from an hour to several weeks.

Reduced schedule leave reduces the usual number of hours worked per week or day.

There is no limit on the size of an increment of leave when an employee takes intermittent leave or reduced schedule leave.  However, leave increments must be accounted for using an increment no greater than the shortest period of time that the company uses to account for use of other forms of leave, provided it is not greater than one hour.

If an employee’s work schedule varies from week to week, the average weekly hours worked during the 12 months prior to the start of the FMLA leave will be used to calculate the employee’s “normal” work schedule.

For part-time employees and those who work variable hours, FMLA leave entitlement is calculated on a proportional basis.  Example: An employee normally works 30 hours per week and reduces his hours to 20 per week on reduced schedule leave.  The 10 hours of FMLA leave equals one-third of a week of FMLA leave each week.

Employee Transfer

If an employee requests intermittent leave or a reduced work schedule for planned medical treatment or military caregiver leave, the employer may temporarily transfer the employee to an available alternative position under these conditions.

• The position has equivalent pay and benefits.  Employers may increase the pay and benefits of an existing alternative position to make them equivalent to the employee’s regular job, or transfer the employee to a part-time job with the same hourly rate of pay and benefits, provided the employee is not required to take more leave than is medically necessary.
  
  
• The employee is qualified to perform the job.  
  
  
• The alternative position accommodates recurring periods of leave better than the employee’s regular job.

A job transfer does not require the employee’s agreement, and there are no limitations on the nature of the alternative position.  However, before selecting an alternative position, the employer should consider the provisions of the Americans with Disabilities Act (ADA), which might require accommodating the employee’s health condition.

Reinstatement Rights

The FMLA requires that after a leave, an employee must be restored to the position he/she held when the leave began, or to an equivalent position, with equivalent benefits, pay, and other terms and conditions of employment.  An equivalent position must involve the same pay, benefits, and working conditions.  It should offer the same or substantially similar duties and responsibilities, and must include substantially equivalent skill, effort, and authority.

If special qualifications required for the position have lapsed during the employee’s leave, the employee must be given a reasonable opportunity to fulfill the requirements after returning to work.  The employee must be restored to the same work site from which he/she started leave, or to a geographically proximate work site.

If the employees’ original work site has been closed or moved, and other employees were transferred to another work site, the employee must have the same rights for transfer as would have been available had the employee not taken leave.  The employee is also entitled to be returned to the same shift or equivalent schedule, and have the same opportunity for bonuses, profit sharing, and other non-discretionary payments.

An employee is entitled to any unconditional pay increases that may have occurred during the FMLA leave period, such as cost of living increases.  Pay increases conditioned upon seniority, length of service, or work performed need not be granted to employees on FMLA leave, unless otherwise granted to employees on an equivalent leave status for a reason that does not qualify as FMLA leave.

An employee is also entitled to be restored to a position with the same or equivalent pay premiums, such as a shift differential.  If an employee departed from a position averaging 10 hours of overtime each week, he/she is ordinarily entitled to such a position on return from FMLA leave.

The requirement that a restored employee receive the same or equivalent pay and benefits does not extend to intangible or unmeasurable aspects of the job, such as chances for promotion.

 
“Key” Employees

An employee who qualifies as a key employee may be denied restoration to employment under very limited circumstances.  An employer may use the “key” employee designation:

• for the highest paid 10% of all salaried and non-salaried, eligible and ineligible, employees (calculated from year-to-date earnings as of the date leave is requested); or
  
  
• if the employee’s restoration to employment after taking leave would cause substantial and grievous economic injury.

Employers must inform employees in writing of their “key” employee designation at the time FMLA leave is requested or shortly after it starts.  Notice must also:

• fully inform the employee of the potential consequences with respect to reinstatement and maintenance of health benefits;
  
  
• explain the basis for the finding that substantial and grievous economic injury will result; and
  
  
• provide the employee a reasonable time in which to return to work, taking into account the circumstances, such as the length of the leave and the urgency of the need for the employee to return.

Employer Notification Requirements

FMLA-covered employers that have any eligible employees must provide a notice to each employee explaining the FMLA’s provisions and providing information concerning the procedures for filing complaints of violations of the Act.  Employers may distribute the general notice by including it in employee handbooks or other written guidance to employees concerning employee benefits or leave rights.

Employers that do not have employee handbooks or other written materials concerning benefits and leave that are distributed to all employees must provide the general notice to each new employee upon hire.  A covered employer with no eligible employees is not required to distribute the general notice, but it must post the notice.

The FMLA’s distribution requirements may be satisfied through an electronic posting, as long as it otherwise meets statutory requirements and as long as all employees and applicants have access to the information.

The DOL’s Employee Rights And Responsibilities Under The Family And Medical Leave Act (WH-1420) may be used to satisfy the general notice requirements.

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 his/her eligibility to take leave within five business days, absent extenuating circumstances.  The eligibility notice must state whether the employee is eligible for FMLA leave.  If the employee is not eligible, the notice must state at least one reason why. 

In addition to providing a notice of eligibility, a notice of rights and responsibilities (not to be confused with the general notice) must be provided at the same time.  The DOL has combined these two required notices into one model notice.  Employers may use the DOL’s Notice Of Eligibility And Rights & Responsibilities (WH-381) for this purpose.

Employers must notify employees within five business days of making the determination whether leave has or has not been designated as FMLA leave, absent extenuating circumstances.  Only one designation notice is required for each FMLA-qualifying reason per leave year, regardless of whether the leave is taken as a continuous block or on an intermittent or reduced schedule basis.

Employees must also be notified whether the substitution of paid leave is required, or whether paid leave taken under an existing leave plan will be counted as FMLA leave.

The employer must also notify the employee of the amount of leave counted against the employee’s FMLA leave entitlement.  If the amount of leave needed is known at the time the employer designates the leave as FMLA-qualifying, the employer must specify the number of hours, days, or weeks that will be counted.  If this is not possible, the employer must provide notice of the amount of leave counted against an employee’s FMLA leave entitlement upon request by the employee, but no more than once in a 30-day period and only if leave was taken in that period.  This notice may be oral or in writing.  Oral notice must be confirmed in writing no later than the following payday.  If the following payday is less than one week after oral notice, then notice must be provided by the subsequent payday.

Any requirement for a fitness-for-duty certification must be provided with the designation notice.  Oral notice is sufficient; written notice is not required.

The DOL created WH-382, Designation Notice, which employers may choose to use.

The FMLA allows employers to deny reinstatement to employees who are designated as “key” employees.  To be able to deny reinstatement based on the key employee designation, employers must inform the employee in writing of the designation at the time FMLA leave is requested or when FMLA commences, if earlier.  Employers who fail to notify employees of their key employee designation forfeit their right to deny reinstatement, even if substantial and grievous injury will result.

Medical Certification

If an employee requests leave for the serious health condition of a covered family member or for his/her own serious health condition, an employer may require that the employee provide medical certification, in a timely manner, from the health care provider of the person with the condition. 

Employers should request medical certification at the time the employee gives notice of the need for FMLA leave, or within five business days thereafter.  In the case of unforeseen leave, within five business days after the leave commences.  The employer may request certification at some later date if the employer later has reason to question the appropriateness of the leave or its duration.  The employee must provide the requested certification to the employer within 15 calendar days after the employer’s request.

The employee must provide a complete and sufficient certification if required by the employer.  A certification is considered incomplete if one or more applicable entries has not been completed or if the information provided is vague, ambiguous, or non-responsive.

If certification is found to be incomplete, the employer must inform the employee in writing and give the employee seven calendar days to cure any such deficiencies.  If the employee fails to cure such deficiencies in the resubmitted certification, the employer may deny FMLA leave.

If the need for leave is due to a serious health condition (either the employee’s or the employee’s family member’s) and lasts beyond a single leave year, the employer may require the employee to provide new medical certification in each subsequent leave year.  The new certifications are subject to the provisions for authentication and clarification, including second and third opinions.

When leave is taken because of an employee’s own serious health condition or the serious health condition of a family member, an employer may require the certification to contain the following information.

1. The name, address, telephone number, and fax number of the health care provider.
   
   
2. The date the serious health condition began.
   
   
3. Appropriate medical facts regarding the condition for which FMLA leave is requested.
   
   
4. If the employee has the serious health condition, information that establishes that the employee cannot perform the functions of the job, and the likely duration of the inability.
   
   Note: An employer has the option, in requiring certification, to provide a statement of the essential functions of the employee’s position for the health care provider to review.  The final rule requires a sufficient medical certification to specify what functions of the position the employee is unable to perform, so that the employer can then determine whether the employee is unable to work at all or is unable to perform any one of the essential functions of the job. 
   
   
5. If the employee is needed to care for a family member, a statement that the family member needs care and approximately how long the employee will be needed.
   
   
6. In the case of intermittent leave for planned medical treatment, the dates on which treatment is expected to be given and the treatment’s duration.
   
   
7. In the case of intermittent or reduced schedule leave, information that establishes the medical necessity for that type of leave.
   
   
8. In the case of intermittent or reduced schedule leave to care for a family member, information that establishes that this type of leave is necessary for the care of the family member or will assist in their recovery, and the expected duration and schedule of the leave.

The DOL created two separate optional certification forms for use in obtaining medical certification — Certification Of Health Care Provider For Employee’s Serious Health Condition (WH-380-E) and Certification Of Health Care Provider For Family Member’s Serious Health Condition (WH-380-F).  An employer may use another form containing the same basic information, as long as no information beyond what is requested on the DOL’s forms is required.

 
If the Americans with Disabilities Act (ADA) or a state Workers’ Compensation statute also applies, the FMLA does not prevent employers from following ADA or Workers’ Comp procedures for requesting medical information.  Also, any information received under these laws may be considered in determining the employee’s entitlement to FMLA leave.

While an employee may choose to comply with the certification requirement by providing the employer with authorization to communicate directly with the health care provider, employers may not require employees to sign a release of their medical information as a condition of taking FMLA leave.

Note: Previously, employers could contact an employee’s health care provider only through another health care provider and only with the employee’s consent.  The final regulations allow the employer (e.g., HR professional, leave administrator, management official) to contact the employee’s health care provider directly; however, the employee’s direct supervisor may not make contact.

Second And Third Opinions

Employers who have reason to doubt the validity of the medical certification may require the employee to obtain a second medical opinion, at the employer’s expense.  The second health care provider may not be employed on a regular basis by the company.  If the opinions of the first and second health care providers differ, the employer may require a third opinion, again at the employer’s expense, from a health care provider mutually agreed upon by the employer and employee.  The third opinion is final and binding.  Employers have five business days, absent extenuating circumstances, to provide a copy of a second or third opinion to an employee who requests one.

Recertification 

Recertification of the employee’s or family member’s serious health condition may not be requested more than once every 30 days, longer if the minimum duration of the condition is longer than 30 days.  However, employers may ask for recertification every six months in all cases, including conditions for which the minimum duration is more than six months or the duration is indicated as lifetime, indefinite, or unknown.

An employer may request recertification in less than 30 days if the employee requests an extension of leave, circumstances described by the previous certification have changed significantly, or the employer receives information that casts doubt on the validity of the certification or reason for the absence.

Qualifying Exigency Certification 

Employers may require employees to provide a copy of the covered military member’s active duty orders or other military-issued documentation that indicates that the covered military member is on covered active duty, and the dates of the active duty service.  This information need only be provided once; new active duty orders or other documentation must be provided only if the need for leave arises out of a different covered active duty of the same or a different covered military member.

Employers may require employees to support a request for qualifying exigency leave by providing certification containing the following information:

• a statement or description signed by the employee of appropriate facts regarding the qualifying exigency;
  
  
• the approximate date on which the qualifying exigency commenced or will commence;
  
  
• if the employee requests leave for a single, continuous period of time, the beginning and end dates for the absence;
  
  
• if the employee requests leave on an intermittent or reduced schedule basis, an estimate of the frequency and duration of the qualifying exigency; and
  
  
• if the qualifying exigency involves meeting with a third party, appropriate contact information for the individual or entity with whom the employees is meeting, and a brief description of the purpose of the meeting.

The DOL has created an optional form, Certification Of Qualifying Exigency For Military Family Leave (WH-384), for this purpose.

Employers may contact the individual or entity with whom the employee is meeting in order to verify a meeting or appointment schedule and the nature of the meeting.  Employers may also contact an appropriate unit of the Department of Defense to request verification of covered active duty.  In both cases, the employee’s permission is not required, and no additional information may be requested.

 
Military Caregiver Leave Certification 

Employers may require employees to obtain a certification completed by an authorized health care provider of the covered service member, including:

• a U.S. Department of Defense (DOD) health care provider;
  
  
• a U.S. Department of Veterans Affairs (VA) health care provider;
  
  
• a DOD TRICARE network authorized private health care provider; or
  
  
• a DOD non-network TRICARE authorized private health care provider.

Employers may request the following information from the health care provider:

• the name, address, and appropriate contact information (telephone number, fax number, and/or e-mail address) of the health care provider; the type of medical practice; the medical specialty; and whether the health care provider is: a U.S. Department of Defense (DOD) health care provider, a U.S. Department of Veterans Affairs (VA) health care provider; a DOD TRICARE network authorized private health care provider; or a DOD non-network TRICARE authorized private health care provider;
  
  
• whether the covered service member’s injury or illness was incurred in the line of duty on active duty;
  
  
• the approximate date on which the injury or illness commenced, and its probable duration;
  
  
• a statement or description of appropriate medical facts regarding the service member’s health condition for which FMLA leave is requested;
  
  
• information sufficient to establish that the covered service member is in need of care, and whether the service member will need care for a single, continuous period of time, including any time for treatment and recovery, and an estimate as to the beginning and ending dates for this period of time;
  
  
• if leave is requested on an intermittent or reduced schedule basis for planned medical treatment appointments, whether there is a medical necessity for the covered service member to have such periodic care and an estimate of the treatment schedule of such appointments; and
  
  
• if leave is requested on an intermittent or reduced schedule basis to care for a covered service member other than for planned medical treatment (e.g., episodic flare-ups of a medical condition), whether there is a medical necessity for the service member to have such care, which can include assisting in the service member’s recovery, and an estimate of the frequency and duration of the periodic care.

In addition to the information requested from an authorized health care provider, employers may request that such certification set forth the following information from the employee and/or covered service member:

• the name and address of the employer of the employee requesting leave, the name of the employee requesting leave, and the name of the covered service member for whom the employee is requesting leave;
  
  
• whether the covered service member is a current member of the Armed Forces, the National Guard, or the Reserves, and the service member’s military branch, rank, and current unit assignment;
  
  
• whether the service member is assigned to a military medical facility as an outpatient or to a unit established for the purpose of providing command and control of members of the Armed Forces receiving medical care as outpatients, and the name of the medical treatment unit or facility;
  
  
• whether the covered service member is on the temporary disability retired list;
  
  
• a description of the care to be provided to the service member and an estimate of the leave needed to provide the care.

The DOL has created an optional form, Certification For Serious Injury Or Illness Of Covered Servicemember For Military Family Leave (WH-385), for this purpose.

In lieu of WH-385 or the employer’s own certification form, an employer must accept invitational travel order (ITOs) and invitational travel authorizations (ITAs) issued to any family member to join an injured or ill service member at his/her bedside.  The employee does not need to be named in the ITO or ITA, and it is sufficient even if it is not signed by a health care provider.

 
Benefits

An employee cannot lose any employment benefit accrued prior to the start of FMLA leave.  Benefits include 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 benefits plan as defined by the Employee Retirement Income Security Act of 1974 (ERISA).

 
At the end of leave, benefits must be resumed in the same manner and at the same levels as provided when leave began.  However, they are subject to any changes affecting the entire workforce that may have taken place while the employee was on FMLA leave.
 
Employees on FMLA leave are entitled to have health benefits maintained while on leave.  If employees were paying all or part of the premium payments prior to leave, they would continue to pay their share during that leave period.  The employer can recover its share only if the employee does not return to work for a reason other than the serious health condition of the employee or the employee’s immediate family member or another reason beyond the employee’s control.
 
FMLA requires employers to maintain coverage under an existing group health plan for the duration of leave and under the conditions coverage would have been provided if the employee had not taken leave.  An employer is not required to provide health benefits unless it is already doing so.  If a plan is established or changed by the employer during an employee’s leave period, entitlement to benefits starts at the same point as if the employee were still on the job.
 
Employees have a 30-day grace period after the agreed upon date for payment to pay the premium without affecting health benefits coverage.  If the employee does not make the payment within the 30-day grace period, an employer may discontinue health coverage on the date the grace period ends, or the employer may choose to continue health coverage by making the premium payments.
 
Employers who pick up the employee’s share of health care costs during leave are entitled to recover the additional payments after the employee returns to work.
 
It is illegal to require a restored employee to meet any qualification requirements, such as a waiting period, including any new pre-existing conditions, waiting for an open season, or passing a medical examination.

Recovering Premiums

Employers may recover premiums paid for maintaining group health plan coverage during any period of unpaid FMLA leave if the employee fails to return to work after the leave entitlement has expired, unless the employee does not return to work because of:

1. The continuation, recurrence, or onset of a serious health condition affecting the employee, an immediate family member, or a covered service member;
   
   
2. The employee’s circumstances suddenly and unexpectedly change during leave; or
   
   
3. Another circumstance beyond the employee’s control.

Examples:

• an immediate family member with a serious health condition who needs the employee to provide care;
  
  
• an employee who is laid off while on FMLA leave;
  
  
• the employee’s spouse is unexpectedly transferred more than 75 miles away from the employee’s work site;
  
  
• an employee is designated a “key” employee.
  
  Note: A key employee who takes leave is still eligible for continuation of health benefits, even if the employee has been notified that reinstatement will be denied.  Under such circumstances, no recovery of the premium may be made by the employer if the key employee has chosen to take or continue leave after receiving notice from the employer that he/she has been designated as a “key” person.

Premiums due may be deducted from any sums owed to the employee (e.g., vacation pay, profit sharing, final paycheck).

Fitness For Duty

Another right the FMLA grants to employers is the right to request fitness-for-duty certification from employees who are returning to work after an FMLA leave of absence for their own serious health condition. 

The DOL requires that fitness-for-duty certification specifically address the employee’s ability to perform the essential functions of the job, as long as the employer provides the employee with a list of those essential job functions no later than with the designation notice.

If the employer will require a fitness-for-duty certification, the employer must advise employees of this requirement in the designation notice, and indicate whether the certification must address the employee’s ability to perform the essential functions of the job.

Fitness-for-duty certification may not be required for each absence taken on an intermittent and reduced schedule leave.  Such certification is allowed up to once every 30 days if reasonable safety concerns exist.  Employees must be informed of this requirement at the same time the designation notice is issued.

Posting Requirements

Every covered employer must post on its premises a notice explaining the FMLA’s provisions and providing information on how to file complaints of FMLA violations with the Wage and Hour Division.  The notice, which is available through the DOL, must be posted prominently where it can be readily seen by employees and applicants.

If most of the workforce is not literate in English, the employer must provide the information in a language in which the employees are literate.

The posting requirements may be satisfied through an electronic posting, as long as it otherwise meets statutory requirements and as long as all employees and applicants have access to the information.

An employer that willfully violates the posting requirement may be fined not more than $110 for each separate offense.  An employer that fails to post the required notice may also not be able to take any adverse action against an employee, including denying FMLA leave for failing to give appropriate notice.

Record-Keeping Requirements

• Payroll records collected by the employer for FMLA purposes must conform with FLSA requirements.
  
  
• Payroll records must contain the following information.
  
  
  1. Basic employee data, including name, address, occupation, rate of pay, terms of compensation, hours worked per day and week per pay period, additions to or deductions from wages, and total compensation paid.
     
     
  2. Dates of FMLA leave taken by employees, which must be designated in records as FMLA leave.  FMLA designation does not apply to leave provided under state law or an employer plan.
     
     
  3. If FMLA leave is taken in increments of less than one full day, the hours of the leave.
     
     
  4. Notices of leave from the employee to the employer, if in writing.
     
     
  5. Copies of all written notices given to the employee as required by the FMLA.
     
     
  6. Any documents explaining employee benefits or employer policies and practices regarding the paid and unpaid leave.
     
     
  7. Premium payments of employee benefits.
     
     
  8. The explanation of any dispute between the employer and an employee regarding designation of FMLA leave.
     
     
• Records must be kept for at least three years from the last date of entry.
  
  
• Medical records collected by the employer for FMLA purposes must conform with ADA confidentiality requirements (when applicable).
  
  All information obtained for medical certification should be treated as a confidential medical record and stored in a locked cabinet apart from personnel files. The only individuals who should have access to this documentation are supervisors and managers who need to know about necessary restrictions or accommodations, medical and safety personnel, and government, state, and insurance officials with a “need to know.”
  
  
• Employers are not required to keep records in any particular order or form, nor are employers required to revise their computerized payroll or personnel records system to comply.
  
  
• Records must be made available for inspection, copying, and transcription by representatives of the DOL upon request.

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