FMLA & GENERAL LEAVE FAQs

Generally, unless otherwise specifically indicated in a particular state law, the employment laws of the state in which the employee works will apply.

Unless specifically indicating that the state leave law may not run concurrently with federal FMLA leave, employers must provide the benefits of each particular provision in each law that gives employees the greater benefit. One entire law does not usually supersede another.

Yes, as long as that one policy captures all the provisions of all the applicable state leave laws.

Generally, the leave law of the state in which the employee works from home. Refer to the specific law, however, as the definition of “employee” or what qualifies for eligibility can differ. One state does not generally have jurisdiction over employees in other states.

No. The federal Family and Medical Leave Act requires covered employers to provide unpaid, job-protected leave. If leave is provided as an accommodation under the federal Pregnant Workers Fairness Act or the federal Americans with Disabilities Act, it may be unpaid if similarly situated employees are given unpaid leave.

Many states, however, require employers to provide paid leave for certain reasons.

The FMLA applies to all public agencies, including local, state, and federal employers, and local education agencies (schools); and private sector employers who employ 50 or more employees for at least 20 workweeks in the current or preceding calendar year – including joint employers and successors of covered employers.

Eligible employees who work for a covered employer are entitled to take FMLA leave for a qualifying reason. FMLA eligibility requires the employee to meet the following criteria:

• The employee must have worked at least 1,250 hours during the 12 months prior to the start of leave,
• The employee must have worked for the employer for at least 12 months (need not be consecutive), and
• The employee must work at a location where the employer has at least 50 or more employees within 75 miles.

No. An employee’s personal residence is not a worksite for determining if the employee works at a location with at least 50 company employees within 75 miles. The employee’s worksite is the the office to which they report and from which assignments are made.

Employees who meet the eligibility criteria may take up to 12 weeks of FMLA leave in a 12-month leave year period for reasons other than military caregiver leave. They may take up to 26 weeks of FMLA leave for military caregiver leave

Employers may give employees more than 12 weeks of leave, but only 12 of those weeks should be designated and counted as FMLA leave.

Much will depend upon which method an employer chooses to calculate the 12-month leave year period for leave other than military caregiver leave. Employers may generally choose from the following:

• The calendar year,
• Another static 12-month leave year such as the employer’s fiscal year,
• The 12 months measured forward from when an employee first takes FMLA leave, or
• A ‘‘rolling’’ 12-month period measured backward from the date an employee uses any FMLA leave.

No. Employers, however, need not include time worked prior to a break of seven years or more.

The Family & Medical Leave Act requires only unpaid leave. Employees may elect, or the employer may require, however, to use accrued paid time off for some or all of the FMLA leave period.

A serious health condition is an illness, injury, impairment, or physical or mental condition that involves inpatient care, or continuing treatment by a health care provider.

Inpatient care is generally an overnight stay in a health care facility.

Continuing treatment is a bit more involved, however. Please note that “treatment” can include exams to determine if a serious health condition exists and evaluations of the condition.

A serious health condition involving continuing treatment includes the following:

• A period of incapacity of more than three, consecutive, full calendar days, and any subsequent treatment that also involves -
  • Treatment two or more times within 30 days of the first day of incapacity by a health care provider, or
  • Treatment at least once, resulting in a regimen of continuing treatment.
• Any period of incapacity due to pregnancy or for prenatal care.
• Any period of incapacity (or treatment for) a chronic serious health condition requiring treatments at least twice per year and continuing over an extended period of time.
• A period of incapacity for a permanent or long term condition in which treatment may not be effective.
• Any period of absence to receive multiple treatments for restorative surgery or a condition that would likely result in a period of incapacity of more than three days in the absence of treatment.

• For the birth of a son or daughter, and to bond with the newborn child;
• For the placement with the employee of a child for adoption or foster care, and to bond with that child;
• To care for an immediate family member (spouse, child, or parent – but not a parent “in-law”) with a serious health condition;
• To take medical leave when the employee is unable to work because of a serious health condition; or
• For qualifying exigencies arising out of the fact that the employee’s spouse, son, daughter, or parent is on covered active duty or call to covered active duty status as a member of the National Guard, Reserves, or Regular Armed Forces.
• To care for a covered service member with a serious injury or illness.

Eligible employees may take FMLA leave to care for a spouse, child, or parent.

No. Eligible employees are entitled to up to 12 weeks of FMLA leave. When leave is taken in full weeks, you simply count the weeks. If leave is taken in less than full weeks (such as intermittent or reduced schedule), the actual workweek is the basis of leave entitlement. Therefore, if an employee who normally works 50 hours per week takes off ten hours, he would use 1/5 of a week of FMLA leave. You may convert this fraction into its hourly equivalent.

When it is medically necessary, employees may take family medical leave on a reduced leave schedule. When leave is needed for planned medical treatment, the employee must make a reasonable effort to schedule treatment so as not to unduly disrupt the employer’s operation.

Leave to care for or bond with a newborn child or for a newly placed adopted or foster child may be taken intermittently only with the employer’s approval and must conclude within 12 months after the birth or placement.

The employee will likely have protections under the Americans with Disabilities Act, which could entitle him or her to more leave as a reasonable accommodation.

No, much will depend upon if the injury meets the Family Medical Leave Act definition of a serious health condition.

If the sibling stood in as a parent to the employee when the employee was a child, or the employee stood in as a parent to the sibling when the sibling was a child, the employee would be entitled to FMLA leave to care for the sibling. The sibling would have the role of a parent or a child.

No, the 1,250 hours is only hours actually worked.

No, employers may not request a certification for bonding with a healthy child.

No. Doctor’s notes are tantamount to recertifications and they need to comply with the applicable provisions, including the restrictions on when you may request one.

12 weeks, to be taken within 12 months of the birth.

Eligible employees may take FMLA leave for a serious health condition. The condition may be physical or mental. Therefore, an employee may take FMLA leave for depression or anxiety, as long as the condition otherwise meets the definition of a serious health condition. If, for example, an employee (or family member) has an overnight stay in a health care facility, it would be a serious health condition. Other parts of the definition may also apply. The Leave Manager has an EZ Explanation on the definition of a serious health condition. Employers may request a certification supporting the need for leave, and it should contain enough information to determine if the definition is met. If medically necessary, the leave may be taken intermittently or on a reduced schedule basis.

Yes, it can. For purposes of the FMLA, a serious health condition may be physical or mental. This could include depression, anxiety, post-traumatic stress disorder, and so on.

The condition would still need to meet the definition of a serious health condition.

As with any medical condition, an employee may be entitled to take FMLA leave for a mental condition on an intermittent or reduced schedule as medically necessary. Employers may request a certification to support the need for leave for any condition, including mental ones.

No. Employers are to keep employee and family member leave information confidential as well as separate from the general personnel file.

Employers must have an FMLA general notice posted in the workplace where it can be readily seen by employees and applicants for employment, as well as in employee handbooks or other written guidance to employees concerning employee benefits or leave rights, if such written materials exist, or by distributing a copy of the general notice to each new employee upon hire.

When an employee puts an employer on notice of the need for leave, employers must give the employee an eligibility/rights and responsibilities notice within five business days. Once employers have enough information to determine whether the absence qualifies for FMLA protections, employers have five days to give the employee a designation notice.

Employers may, with the eligibility/rights and responsibilities notice, give employees a certification form. Employers are not mandated to ask for a certification, but may do so in many situations.

Generally, no. Employees returning from FMLA leave must be reinstated to their position or an equivalent one. Equivalent means that the position must be virtually identical to the employee's former position in terms of pay, benefits and working conditions, including privileges, perquisites, and status. It must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority. This includes the same shift or the same or an equivalent work schedule.

No. Employees have no greater right to reinstatement or to other benefits and conditions of employment than if they had been continuously employed during the FMLA leave period. Employers must be able to show that an employee would not otherwise have been employed at the time reinstatement is requested in order to deny employment restoration.

No. They may, however, be denied reinstatement if their reinstatement would cause substantial and grievous economic injury to the operations of the employer. Employers must take certain steps to deny reinstatement of key employees.

Employers may request recertification no more often than every 30 days and only in connection with an absence by the employee, with some exceptions.

If, however, the certification indicates that the minimum duration of the condition is more than 30 days, employers must wait until that minimum duration expires before requesting a recertification,

In all cases employers may request a recertification every six months in connection with an absence by the employee.

Employers 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 (e.g., the duration or frequency of the absence, the nature or severity of the illness, complications); or
• They receive information that casts doubt upon the employee's stated reason for the absence or the continuing validity of the certification.

Yes, but only if the adult child meets the following criteria:

• Has a disability as defined by the federal Americans with Disabilities Act (ADA),
• Is incapable of self-care because of the disability,
• Has an FMLA serious health condition, and
• Needs care from the employee because of the condition.