Managing Family and Medical Leave (FMLA)

Overview

The Family and Medical Leave Act (FMLA) is a federal law originally enacted in 1993 and amended in 2008 (and again in 2009). The overall purpose of the FMLA is to mandate that certain large employers provide a balance between the demands of the workplace and the needs of families by providing job-protected, unpaid leave to eligible employees. The FMLA amendments of 2008 and 2009 extended the FMLA to certain military-related situations. The amendments provide leave for qualifying military exigencies and leave for families of covered military members.

See:

What You Need to Know About the FMLA

U.S. Department of Labor Wage and Hour Division: Family and Medical Leave Act

Family and Medical Leave Regulations

Managing Military Leave and Military Family Leave

What is FMLA military caregiver leave, and who is eligible to take it?

The FMLA is driven by numerous, complex definitions. The FMLA is influenced by other federal statutes, including the Fair Labor Standards Act (FLSA) and the Americans with Disabilities Act (ADA). Workers' compensation statutes also affect employers' decisions about family and medical leave. Several states have enacted their own laws concerning family and medical leave.  

The interplay of state and federal laws around family and medical leave has often been referred to as a "Bermuda Triangle." In fact, for large, multistate employers, the area of family and medical leave might be better described as a spider web of regulation. See: Interplay of ADA, FMLA and Workers' Compensation Training.

This toolkit discusses topics most often encountered when an employer needs to determine whether an employee is entitled to family or medical leave under the FMLA, including:

• Employer coverage.
• Employee eligibility for leave.
• Qualifying events.
• Serious health condition.
• Employer notice requirements.
• Employee notice of leave requirements.
  
• Medical certification requirements.
• Amount of leave.
• Pay and benefits during leave.
  
• Returning to work.
• Compliance

See Checklist: FMLA Compliance.

Employer Coverage

The FMLA applies to private employers that have employed at least 50 employees during 20 or more calendar weeks during the current or preceding calendar year. The FMLA also applies to public agencies and to public and private elementary and secondary schools (with some special rules), regardless of the number of employees employed.

Private employers with fewer than 50 employees may be covered by a state family, medical or pregnancy leave law. Supervisors and HR professionals may also be held individually liable for violating the FMLA. Therefore, the reach of family and medical leave laws is quite broad. All employers should be aware of the federal and state laws that may pertain to them.

Counting employees

Counting the number of employees to determine whether an employer is subject to the FMLA can be complex for those employers close to the 50-employee threshold. To determine the number of employees counted under the FMLA, any employee whose name appears on the employer's payroll each working day of the calendar week is counted, whether any compensation is received for the week. Thus, part-time employees, employees on disciplinary suspension and employees on leaves of absence (either paid or unpaid) are counted. Employees jointly employed by two employers are counted by both employers if they are on the payrolls of both employers each working day of the calendar week. Employees who work outside the United States, employees who have been laid off and volunteers are not counted. Partners and shareholders, who are not employees as defined by Section 3(g) of the FLSA, are not counted, even if they appear on the employer's payroll.

Successor companies may have to count employees employed by predecessor companies.

See:

How are the FMLA rights of employees handled when the employer undergoes a merger or an acquisition?

Does time spent as a temporary employee count toward FMLA leave eligibility?

What are FMLA requirements for employers with 50 or more employees that are not all within a 75-mile radius?

Employee Eligibility for Leave

An employee of a covered employer is eligible for leave if the employee has been employed by the employer under all the following conditions:

• For at least 12 months.
• For at least 1,250 hours of service during the previous 12-month period.
• At a worksite where the employer employs at least 50 employees within 75 miles of the worksite.

Employees must meet the 12-month and 1,250-hour requirements as of the first day of leave. If an employee is taking intermittent leave, the employee need only meet these eligibility requirements at the time of the first intermittent absence covered by the same medical certification. Whether the employee works at a worksite with 50 employees within 75 miles is determined at the time the employee gives notice of the need for leave.

For determining whether an employee has been employed by a covered employer for at least 12 months, the 12 months do not need to be consecutive. In addition, the 12 months may, in some circumstances, include the time the employee was employed by a predecessor-employer.

To determine whether an employee has worked 1,250 hours, the FMLA uses the definition of hours worked stated in the FLSA. See Fact Sheet #22: Hours Worked Under the Fair Labor Standards Act (FLSA).  

The DOL has clarified another topic of much debate for employers. The regulations state that if an employer grants a non-FMLA leave of absence to an employee before the employee becomes eligible for FMLA leave, and while on that leave the employee becomes eligible for FMLA leave, all of the leave taken after the employee becomes eligible is considered FMLA leave, and all of the leave that was taken before the date of eligibility is not considered FMLA leave. See If an employee was not eligible for FMLA at the start of his or her medical leave but reaches the 12-month, 1,250-hour requirement while out on leave, do we have to offer FMLA?

When applying the Uniformed Services Employment and Reemployment Rights Act (USERRA), the hours that an employee returning from military leave would have worked during the period of military service are counted toward the required 1,250 hours.

The Airline Flight Crew Technical Corrections Act of 2010 amended Section 101(2) of the FMLA. The amendment provides that an airline flight attendant or flight crew member meets the hours-of-service requirement if, during the previous 12-month period, the employee a) has worked or been paid for not less than 60 percent of the applicable total monthly guarantee (or its equivalent) and b) has worked or been paid for not less than 504 hours, not including personal commute time, or time spent on vacation, medical or sick leave.

Whether an employee is employed at a worksite where the employer employs at least 50 employees within 75 miles is determined by using surface transportation over public streets, roads, highways and waterways, by the shortest route from the facility where the employee needing leave is employed. A quick and practical way to measure such miles is by using mapping websites or apps. See Is an employee who works remotely (75 miles or more from the employer's office) covered under the FMLA?

Qualifying Events

The FMLA provides eligible employees protected, unpaid leave for the following qualifying events:

• The birth of a son or daughter or placement of a son or daughter with the employee for adoption or foster care.
  
• To care for a spouse, son, daughter or parent who has a serious health condition.
  
• For a serious health condition that makes the employee unable to perform the essential functions of the employee's job.
  
• For any qualifying exigency arising out of the fact that a spouse, son, daughter or parent is a military member on covered active duty or call to covered active duty status.
  
• To care for a covered service member with a serious injury or illness if the employee is the spouse, son, daughter, parent or next of kin of the service member.

See:

Does FMLA apply to absences due to infertility?

May an employee with a newborn child use FMLA leave for child care issues?

Definitions of son, daughter, parent and spouse

Under the FMLA, a "son or daughter" includes a biological, adopted or foster child, a stepchild and a legal ward or other child for whom the employee has day-to-day caregiving and financial support responsibilities, who is either under 18 or incapable of self-care because of a mental or physical disability. "Incapable of self-care" means that the son or daughter requires active assistance or supervision to provide daily self-care in three or more of the following activities of daily living: grooming, hygiene, bathing, dressing, eating, cooking, cleaning, shopping, taking public transportation, paying bills, maintaining a residence, using the telephone and directories, and using a post office. Children of same-sex spouses are considered to be stepchildren of the non-natural parent, and employees are entitled to take FMLA leave for their care, as well.

Under the FMLA, a "parent" includes an employee's biological parent or an individual who had day-to-day caregiving and financial support responsibilities for the employee when the employee was a child. See

Under the FMLA, a "spouse" means a husband or wife, including those in same-sex marriages (as of March 27, 2015), which were made legal in all 50 United States as of the June 26, 2015, Supreme Court ruling in United States v. Windsor.

See How does "standing in loco parentis" apply to leave eligibility under the FMLA regulations? and Who is a covered family member under the FMLA?

Coverage of adult children under the FMLA

In general, an employee may not take FMLA leave to care for a son or daughter who is 18 years of age or older. However, an employee may take FMLA leave to care for a biological, adopted or foster child, a stepchild, a legal ward, or a child to whom the employee stands in loco parentis who is 18 years or older and incapable of self-care because of a mental or physical disability at the time that FMLA leave is to commence. See Fact Sheet #28K: Using FMLA Leave to Care for an Adult Child with a Disability and Questions and Answers concerning the use of FMLA leave to care for a son or daughter age 18 or older.

Parental leave

The FMLA contains special rules for the birth, adoption or foster care placement of a child. Leave to care for a healthy newborn or newly placed adopted or foster child must be taken within 12 months of the birth or placement. This parental leave is available to both mothers and fathers; however, if married parents work for the same employer, the amount of leave available for bonding with the child is limited to a combined total of 12 weeks. This rule does not apply to unwed parents. See U.S. DOL Opinion Letter FMLA-66.

To clarify further, the FMLA provides for five situations when an employee may take leave related to the birth, adoption or foster care placement of a child:

• Both parents may take FMLA leave for the actual birth of their child.
• Both parents may take FMLA leave prior to the actual adoption or foster care placement of a child if the absence from work is required for the adoption or foster care placement to proceed (for example, to attend required counseling sessions, appear in court, consult with an attorney or doctor, or travel to another country).
• Both parents may take FMLA leave to be with a healthy newborn or a newly adopted or foster child within 12 months of the birth or placement. Married parents employed by the same employer, however, are limited to a combined total of 12 weeks of leave.
• The mother may take FMLA leave for her own serious health condition related to her pregnancy. The spouse may take FMLA if needed to care for the pregnant spouse, who has a serious health condition related to the pregnancy or birth.
• Both parents may take FMLA leave if needed to care for a newborn or newly adopted or foster child with a serious health condition.

Family leave

Family leave is available under the FMLA when an employee is needed to care for a family member or a covered service member with a serious health condition. (The definition of a "serious health condition" is discussed in detail below.) The other key concept for employers to understand is the "needed to care for" requirement. At first glance, the "needed to care for" requirement appears to be a mechanism that may limit the opportunities for an employer to grant family leave. In practice, this requirement rarely operates to disqualify an employee from family leave. Under the FMLA regulations, the term "needed to care for" encompasses both physical and psychological care. Thus, family leave is available even when the family member is unable to care for his or her own medical, hygienic, nutritional, safety and transportation needs. Family leave is also available when "psychological comfort and reassurance" would be beneficial to the family member.

Medical leave

Medical leave is available under the FMLA when an employee with a serious health condition is unable to perform the functions of his or her job. The requirement that the employee be "unable to perform the functions" of his or her job means that the employee must be unable to work at all or is unable to perform any one of the essential functions of the employee's positions within the meaning of the ADA. See 29 C.F.R § 825.123.

Serious Health Condition

Under the FMLA, a "serious health condition" (SHC) is an illness, injury, impairment, or physical or mental condition that involves either of the following:

• Inpatient care in a hospital, hospice or residential medical care facility.
• Continuing treatment by a health care provider.

Inpatient care

Inpatient care requires an overnight stay at a hospital, hospice or residential medical care facility. In addition to the actual overnight stay, inpatient care also includes any period of incapacity in connection with the inpatient care.

The term "incapacity" means inability to work, attend school or perform other regular daily activities because of the SHC, treatment for the SHC or recovery from the SHC.

An employee may also take FMLA leave for any subsequent treatments related to the inpatient care, such as follow-up doctor visits or physical therapy.

Continuing treatment

The FMLA regulations include five categories of continuing treatment.

The first category of continuing treatment is for "incapacity and treatment." This is defined as a period of incapacity of more than three consecutive calendar days, including any subsequent treatment or period of incapacity relating to the same condition that also involves either of the following:

• Treatment two or more times by a health care provider, by a nurse or by a physician's assistant under direct supervision of a health care provider, or by a provider of health care services (a physical therapist, for example).
• Treatment by a health care provider on at least one occasion that results in a regimen of continuing treatment under the supervision of the health care provider. A "regimen of continuing treatment" may include, for example, a course of prescription medication or therapy requiring special equipment to resolve or alleviate the serious health condition. A "regimen of continuing treatment" does not include taking over-the-counter medications (such as aspirin or antihistamines), bed rest, drinking fluids, exercising or similar activities that can be initiated without a visit to a health care provider.

The second of the five categories of continuing care is any period of incapacity due to pregnancy and prenatal care. FMLA leave is available for pregnancy and prenatal care even though the employee or family member does not receive treatment during the absence and even though the absence does not last more than three days. For example, a pregnant employee who is unable to report to work because of severe morning sickness is eligible for FMLA leave.

The third category is any period of incapacity, or treatment for such incapacity, due to a chronic condition. A chronic condition is a condition that meets all of the following conditions:

• Requires periodic visits for treatment by a health care provider or by a nurse or physician's assistant under direct supervision of a health care provider.
• Continues over an extended period of time (including recurring episodes of a single underlying condition).
• May cause an episodic (rather than a continuing) period of incapacity.

Chronic conditions include asthma, diabetes and epilepsy. FMLA leave is available for chronic conditions even though the employee or family member does not receive treatment during the absence and even though the absence does not last more than three days. For example, an employee with asthma who is unable to report for work due to the onset of an asthma attack is eligible for FMLA leave.

The fourth category is for any period of permanent or long-term incapacity for which treatment may not be effective. The employee or family member must be under the continuing supervision of a health care provider but does not have to be receiving active treatment. Permanent or long-term conditions include Alzheimer's, severe stroke and the terminal stages of a disease.

The fifth category of continuing treatment under the FMLA is any period of absence to receive multiple treatments by a health care provider, by a provider of health care services or on referral by a health care provider for either of the following:

• Restorative surgery after an accident or other injury.
• A condition that would likely result in a period of incapacity of more than three consecutive calendar days in the absence of medical intervention or treatment (e.g., chemotherapy or radiation for cancer, physical therapy for severe arthritis and dialysis for kidney disease).

Excluded from the definition of a serious health condition

Some, although very few, conditions are explicitly excluded by the FMLA regulations from recognition as serious health conditions:

• Conditions for which cosmetic treatments are administered (e.g., acne or plastic surgery unrelated to an injury or illness).
• The common cold, the flu, earaches, upset stomach, minor ulcers, headaches (other than migraine), routine dental or orthodontia problems and periodontal disease—unless complications arise that lead to a temporary incapacity of more than three consecutive calendar days.

If the conditions for inpatient care or continuing treatment described above are met, then substance abuse may be a serious health condition. However, FMLA leave may be taken only for substance abuse treatment by a health care provider or by a provider of health care services on referral by a health care provider. FMLA leave is not available for an absence due to an employee's use of an illegal substance.

See How do I know if an employee's medical absence qualifies for FMLA leave? What is considered a serious health condition?

Employer Notice Requirements

The FMLA requires employers to post a notice of FMLA rights and to respond in writing to employee leave requests. Employees also have obligations to provide notice to employers of the need for leave.

Poster

Once an employer is covered by the FMLA, it is required to post a notice of FMLA rights in the workplace. In addition, if a covered employer has any FMLA-eligible employees, it must also include a notice of FMLA rights in the employee handbook. If the employer does not have an employee handbook, the employer must provide written guidance to each employee regarding the FMLA upon hire. In cases in which an employer's workforce is composed of a significant portion of workers who are not literate in English, the employer must provide the general notice in a language in which the employees are literate.

Employer Notice to Employees Requesting Leave  

Whenever an employee requests leave that may potentially be FMLA-qualifying, the employer must provide the employee with a notice of eligibility to take FMLA leave within five business days. See Notice of Eligibility and Rights & Responsibilities Form (WH-381)

If an employer intends to designate an employee's leave as FMLA-qualified, it must generally provide notice of that fact to the employee within five business days, although, under some circumstances, designation may be made retroactively. See Designation Notice Form (WH-382)

Normally, an employer will want to make sure to comply with this procedure to start the clock running on the amount of FMLA leave the employee has remaining. The failure to designate the leave as FMLA-qualified may result in the employee's leave having all the job-protection, anti-discrimination and anti-retaliation benefits of the FMLA without counting against the employee's 12 weeks of available leave. 

If there is a dispute between an employer and an employee as to whether leave qualifies as FMLA leave, it should be resolved through discussions between the employee and the employer. Such discussions and the decision must be documented.

See:

Should an employer initiate the process for FMLA leave when it learns of an employee's extended medical treatment even if the employee has not asked for it?

Can an employer retroactively designate FMLA leave?

Can Employees Decline FMLA Leave While Using Paid Time Off?

Viewpoint: When Employers Fail to Designate FMLA Leave

Employee Notice of Leave Requirements

When the need for leave is foreseeable, an employee must provide the employer with 30 days' advance notice of the need for FMLA leave. For example, the need for FMLA leave for birth or adoption is almost always foreseeable 30 days in advance, and even surgeries are often scheduled 30 or more days in advance. An employer may require an employee to comply with the employer's normal notice and procedural requirements for requesting leave, absent unusual circumstances. For example, an employer may generally require that written notice set forth the reasons for the requested leave, the anticipated duration of the leave and the anticipated start of the leave. An employee may also be required by an employer's policy to contact a specific individual. Nevertheless, employers should be wary of denying FMLA leave based on a determination that the employee has not provided adequate notice of the need for leave. See Employee Must Follow Call-In Procedure for FMLA Leave to Be Protected and General Reasons for Leave Call-Ins Satisfied FMLA Requirements.

The employee's notice is sufficient if it meets all of the following conditions:

• Is at least a verbal notice.
• Is sufficient to make the employer aware that the employee needs FMLA leave.
• Includes the anticipated timing and duration of the leave.

See How to Approve or Deny the Request for FMLA Leave.

Furthermore, the notice does not have to be in writing and can be made in person or by telephone, e-mail or other reasonable electronic means. The notice does not even need to mention the FMLA, and it need only provide information sufficient for the employer to understand that the employee is seeking leave for an FMLA-qualifying event.

If 30 days' notice is not practicable, because of a medical emergency or changed circumstances, the employee must give notice as soon as practicable. In most cases, this means that employees must provide notice within one or two business days of becoming aware of the need for FMLA leave.

Medical Certification Requirements

An employer may require an employee seeking FMLA leave to provide medical certification from a health care provider. The employer must allow an employee at least 15 calendar days to return the certification form or a longer period when circumstances reasonably prevent an employee from submitting the certification on time. Employers may not request a medical certification for leave to bond with a healthy newborn child or a child placed for adoption or foster care. However, employers may request documentation to confirm the family relationship.

See:

FMLA Certification Forms

What kind of certification is required when an employee requests FMLA leave to adopt a child?

What are an employer's options when employees do not return FMLA certification forms?

When Might an Employer Question FMLA Certification?

Employer contact with the health care provider

If an employee submits a complete medical certification signed by the health care provider, the employer may not request additional information from the employee's health care provider. However, the employer may contact the employee's health care provider, with the employee's permission, for purposes of clarification and authentication of the medical certification. Also, for work-related injuries, the employer may have direct contact with the employee's health care provider to the extent allowed under the applicable workers' compensation statute. See What guidelines must employers follow when an employee submits an FMLA certification that is vague or incomplete? 

Second and third opinions

If the employer has reason to doubt the validity of the medical certification, the employer may require, at its own expense, that the employee obtain a second opinion of another health care provider. The employer may designate the health care provider for the second opinion, but may not designate a provider employed on a regular basis by the employer.

If the second health care provider's opinion differs from the first health care provider's opinion, the employer may require, at its own expense, that the employee obtain the opinion of a third health care provider. The third health care provider must be designated or approved jointly by the employer and the employee. The opinion of the third health care provider will be binding on the employer and the employee.

If the employer requires second or third opinions, the employer is also required to reimburse the employee for out-of-pocket expenses incurred while obtaining a second or third opinion. The employer must provide the employee a copy of the second or third opinion, within two business days, at the employee's request.

Recertification

The FMLA regulations allow an employer to require recertification of an employee's need for FMLA leave. If the initial certification indicates that the minimum duration of the serious health condition will be more than 30 days, an employer must generally wait until that minimum duration expires before requesting recertification. In all cases, an employer may request recertification every six months. Employers may also request recertification in the following circumstances:

• The employee requests an extension of leave beyond what was indicated in the original certification.
• The circumstances described by the previous certification have changed significantly, such as the duration or frequency of absences.
• The employer receives information that casts doubt on the employee's stated reason for the absence, such as a pattern of Monday or Friday absences.

An employer may not require a second or third opinion on a recertification.

See:

Can we require notes from physicians every time an employee misses work while taking FMLA leave intermittently? 

Viewpoint: What If Employees Are Absent Beyond What Their FMLA Certification Allows?

Avoid Common FMLA Certification and Recertification Mistakes

Employer Can Request FMLA Recertification After Employee Extends Leave

Amount of Leave

Except in the case of leave to care for a covered service member with a serious injury or illness—and this is an important distinction—an eligible employee's FMLA leave entitlement is limited to a total of 12 workweeks of leave during any 12-month period. See Is an employee entitled to more than 12 weeks of FMLA leave if there are multiple qualifying reasons?

Determining the 12-month period

An employer is permitted to choose any one of the following four methods for determining the 12-month period for purposes of tracking the amount of leave taken by employees:

• The calendar year.
• Any fixed 12-month period such as a fiscal year, a year required by state law or a year starting on an employee's employment 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 any FMLA leave.

Most practitioners agree that the rolling 12-month method provides employers with the best protection against FMLA leave abuse by employees with absentee issues. An employer wishing to change its method for determining the 12-month period—from a calendar year to a rolling 12 months, for example—must give its employees at least 60 days' notice, and the transition must take place in such a way that the employees retain the full benefit of 12 weeks of leave under the method that affords the greatest benefit to the employees. See What is a 12-month period under FMLA? and How to Calculate the FMLA's 12-Month Period.

The "same employer" limitation

If a husband and wife are employed by the same employer, FMLA leave is limited to a combined total of 12 weeks in a 12-month period when leave is taken for the birth, adoption or foster care placement of a child, or to care for the employee's parent with a serious health condition. See When spouses work for the same employer, do they each receive 12 weeks of FMLA leave or, when military caregiver leave is involved, 26 weeks?

Determining the 12-month period in the military situation when 26 weeks is available to care for a covered service member

An employee whose son, daughter, parent or next of kin is a covered service member may take up to 26 weeks in a single 12-month period to care for that service member. See What is military caregiver leave, and who is eligible to take it?

The 12-month period is calculated differently in the situation in which an eligible employee is entitled to 26 workweeks of leave to care for a covered service member with a serious injury or illness during a "single 12-month period." In this situation, an employer must determine the single 12-month period for the 26-weeks-of-leave entitlement using the 12-month period measured forward from the date an employee's first FMLA leave to care for the covered service member begins. During the single 12-month period, an eligible employee's FMLA leave entitlement is limited to a combined total of 26 workweeks of FMLA leave for any qualifying reason.

Overtime

The preamble to the regulations clarifies that the hours that an employee would have been required to work if the employee were not on FMLA leave may be counted against the employee's FMLA entitlement. If an employee is required to work overtime but is unable to do so because of FMLA leave, then the hours of overtime that the employee would have worked are counted against the employee's FMLA entitlement. Any overtime that is voluntary or discretionary would not be counted against the employee's leave.

Intermittent leave and reduced schedule leave

FMLA leave may be taken intermittently or on a reduced leave schedule under certain circumstances.

Intermittent leave is FMLA leave that is taken in separate blocks of time due to a single qualifying reason. A reduced leave schedule is a leave schedule that reduces an employee's usual number of working hours per workweek, or hours per workday. A reduced leave schedule is a change in the employee's schedule for a period of time, normally from full time to part time.

Leave may be taken intermittently or on a reduced leave schedule when medically necessary for planned or unanticipated medical treatment or recovery from treatment of a serious health condition. Leave may be taken intermittently or on a reduced leave schedule to provide care or psychological comfort to a covered family member with a serious health condition or a covered service member with a serious injury or illness.

"Medically necessary" means that the leave must have a medical need that is best accommodated through intermittent or reduced schedule leave.

Examples of intermittent leave would include leave taken on an occasional basis for medical appointments or leave taken several days at a time spread over a period of six months, such as for chemotherapy. A pregnant employee may take leave intermittently for prenatal examinations or for her own condition, such as for periods of severe morning sickness. An example of an employee taking leave on a reduced leave schedule is an employee who is recovering from a serious health condition and is not strong enough to work a full-time schedule.

When intermittent or reduced schedule leave is requested after the birth of a child or for placement of a child for adoption or foster care, and for those reasons alone, intermittent leave and reduced schedule leave are available only with employer agreement. For example, unless other bases for leave exist, an employer does not have to grant reduced schedule leave to the parent of a newborn child (thereby extending the total number of weeks that an employer would have to make other arrangements to cover that employee's duties while the employee is absent on a reduced schedule). An employee's request for a reduced schedule solely on the basis that the employee is now a parent and would like to have more time to spend with the child while still maintaining employment on an intermittent or reduced schedule does not need to be honored by the employer; however, many employers do allow such schedule changes.

An employee may not be required to take more FMLA leave than necessary to address the circumstance that precipitated the need for leave, and only the leave actually taken may be counted against the employee's 12-workweek entitlement. For example, if an employee needs one hour to attend a medical appointment, the employer may not require the employee to take four hours of leave. The employer may limit leave increments to the shortest period that the employer's payroll system uses to account for absences or use of leave, as long as that increment is one hour or less.

The employee must attempt to schedule leave so as not to unduly disrupt the employer's operations, and the employee may be reassigned to an alternative position with equivalent pay and benefits that better accommodates the employee's schedule.

In addition, an employer may require an employee to temporarily transfer to an available alternative position that better accommodates intermittent or reduced schedule leave if the need for leave is foreseeable based on planned medical treatment, or when the employer agrees to permit intermittent or reduced schedule leave after the birth of a child or for placement of a child for adoption or foster care. The alternative position must have equivalent pay and benefits, but need not have equivalent job duties. An employer may increase the pay and benefits of an existing alternative position so that it is equivalent to the employee's regular job or transfer an employee to a part-time job with the same hourly rate of pay and benefits.

See:

10 Ways to Combat Summertime FMLA Leave Misuse

Can an employer transfer an employee to an alternative position in order to accommodate intermittent leave?

How can an employer limit the abuse of intermittent FMLA leave?

Can employees make up intermittent FMLA leave?

Pay and Benefits During Leave

FMLA leave is unpaid. However, under the FMLA, to the extent the leave meets the employer's usual requirements for use of paid leave, an employer may require an employee to use paid vacation, personal leave, family leave or sick days or any other available paid time off (PTO). The FMLA also permits an eligible employee to choose to substitute paid leave for FMLA leave. If an employee does not choose to substitute paid leave, the employer may require the employee to substitute paid leave for unpaid FMLA leave. The term "substitute" means that the paid leave provided by the employer, and accrued pursuant to established policies of the employer, will run concurrently with the unpaid FMLA leave. Accordingly, the employee receives pay pursuant to the employer's applicable paid leave policy during the period of otherwise unpaid FMLA leave. An employee's ability to substitute paid leave is determined by the terms and conditions of the employer's normal leave policy. When an employee chooses, or an employer requires, substitution of paid leave, the employer must inform the employee that the employee must satisfy any procedural requirements of the paid leave policy only in connection with the receipt of such payment. If an employee does not comply with the additional requirements in an employer's paid leave policy, the employee is not entitled to substitute paid leave, but the employee remains entitled to take unpaid FMLA leave.

A federal tax credit is available to employers who offer paid FMLA of at least two weeks. The Consolidated Appropriations Act of 2021 extends the availability of this credit through 2025. See Employer Tax Credit for Paid Family and Medical Leave.

FMLA leave may also run concurrently with leave under a disability benefits plan, a workers' compensation statute or other state statutes that grant wage replacement benefits to employees who would also qualify under the FMLA.

If a work-related injury qualifies for FMLA leave, an employee may decline an offer of a light duty job and instead choose to continue on unpaid FMLA leave, even though declining the light duty job results in the loss of wage replacement benefits under the state workers' compensation statute. Employers may not discriminate against employees on FMLA leave in the administration of their paid leave policies.

Under the FMLA, an employer must continue to provide the same health benefits, including any dental or eye care benefits, under the same terms and conditions as the employer would have provided if the employee had been continuously employed during the entire leave period.

For example, the employee must continue to make the same premium payment contribution as the employee made prior to leave. If the employer provides new or changed health benefits while an employee is on FMLA leave, it must grant an employee on FMLA leave the new or changed benefits to the same extent as if the employee were not on leave.

An employer is not required to continue other benefits during leave. However, the employee retains all benefits accrued prior to leave. For example, if an employee who takes FMLA leave has met all the requirements for a perfect attendance bonus or a safety bonus before the leave began, the employee may not be disqualified for such bonuses because of the FMLA leave. See Does an employee on FMLA leave continue to accrue paid leave?

Pay increases

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 on seniority, length of service or work performed must be granted in accordance with the employer's policy or practice with respect to other employees on an equivalent leave status for a reason that does not qualify as FMLA leave. See Can we postpone employee's pay increases or bonuses for the amount of time an employee is out on FMLA leave?

Bonuses and awards

An employer can deny an employee a bonus or award if payment of the award is based on a specified goal and the employee has not met that goal because of the FMLA absences, as long as other employees on an equivalent leave status are treated the same.

Holidays

The FMLA regulations define the instances in which an employer may count a holiday as FMLA leave. An employer may count a holiday as FMLA leave when the employee is on FMLA leave the entire week in which the holiday falls. If an employee works for part of the week in which the holiday occurs, then the holiday does not count as FMLA leave. See Can an employer count holidays against an employee's FMLA leave?

Seniority during FMLA leave

An employer is not required to permit an employee on FMLA leave to accrue seniority during leave. However, the employee retains the seniority acquired prior to leave.

Returning to Work

Under the FMLA, an employer must generally reinstate an employee returning from leave to the same position or to an equivalent position with equivalent employment benefits, pay, seniority, and other terms and conditions of employment.

Key employees

An employer may deny an employee reinstatement to the same or equivalent position if the employer designates the employee as a key employee at the time the employee gives notice of the need for FMLA leave. A "key employee" is an employee among the highest-paid 10 percent of employees and for whom the employer can demonstrate that reinstatement would cause substantial and grievous economic injury. See What is the "key" employee provision under the FMLA?

Layoff during FMLA leave

An employee has no greater right to reinstatement or to other benefits and conditions of employment than if the employee had been continuously employed during the FMLA leave period. An employer must be able to show that an employee would not otherwise have been employed at the time reinstatement is requested to deny restoration to employment. For example, if an employee is laid off during the course of taking FMLA leave and employment is terminated, the employer's responsibility to continue FMLA leave, maintain group health plan benefits and restore the employee cease at the time the employee is laid off, provided the employer has no continuing obligations under a collective bargaining agreement or otherwise. However, an employer would have the burden of proving that an employee would have been laid off during the FMLA leave period and, therefore, would not be entitled to restoration. See Can an employer lay off an employee who is on Family and Medical Leave Act (FMLA) leave?

Inquiring whether the employee intends to return after FMLA leave

An employer may require an employee on FMLA leave to report periodically on the employee's status and intent to return to work. The employer's policy regarding such reports may not be discriminatory and must take into account all the relevant facts and circumstances related to the individual employee's leave situation. If an employee gives unequivocal notice of intent not to return to work, the employer's obligations under FMLA to maintain health benefits (subject to COBRA requirements) and to restore the employee cease. However, these obligations continue if an employee indicates he or she may be unable to return to work but expresses a continuing desire to do so. See FMLA Leave Periodic Status Report.

Fitness-for-duty certification for a returning employee

As a condition of restoring an employee whose FMLA leave was occasioned by the employee's own serious health condition that made the employee unable to perform the employee's job, an employer may have a uniformly applied policy or practice that requires all similarly situated employees (i.e., same occupation, same serious health condition) who take leave for such conditions to obtain and present certification from the employee's health care provider that the employee is able to resume work.

Compliance

Compliance with the FMLA includes a multitude of requirements. Employers should ensure that managers and supervisors are trained in complying with the law and recognizing an employee's request for leave that may be FMLA qualifying. See Family and Medical Leave Act (FMLA) Training. 

Record-keeping

Like almost all employment law statutes, the FMLA and state laws impose record-keeping requirements on employers. See 29 C.F.R. §825.500 for a list of records required to be kept.

Anti-discrimination and anti-retaliation

The FMLA also includes anti-discrimination and anti-retaliation provisions. Anti-discrimination and anti-retaliation provisions may provide a basis for suit against an employer even absent a substantive violation of the leave provisions of the statute in question. Therefore, employers should take care to avoid even the appearance of impropriety in the promulgation and administration of their FMLA leave policies and procedures. See Retaliation Claims over Need for Future FMLA Leave Sent to Jury and Immediate Termination Upon Return from FMLA Leave Suggests Retaliation.

Individual liability for supervisors and HR professionals

The FMLA applies to "any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer."¹ Relying on this language, courts have held individuals liable for FMLA violations if they control the conditions and terms of employment. Thus, for example, an HR manager who administers the FMLA for the employer may be held individually liable for an FMLA violation. Supervisors and managers who controlled decisions regarding the granting of family and medical leave have also been held liable. See Avoiding Individual Liability for the HR Professional.

State laws on family and medical leave and on related military leave

As demonstrated above, the law of family and medical leave and military-related leave is quite complex under the FMLA itself. States are free to require leave benefits that are more generous than those provided by the FMLA. State leave statutes may apply to employers with fewer than 50 employees or different eligibility requirements for employees seeking protected leave. State statutes may also require that the employer provide paid leave in cases in which the FMLA does not. Readers should consult their own state statutes to determine how state law interacts with the FMLA. See Federal vs. State Family and Medical Leave Laws and Multistate Laws Comparison Tool.

Additional Resources

Forms

Checklist: Individual FMLA Leave Request
FMLA Recertification Letter
FMLA Affidavit of Family Relationship
FMLA Employee Request Form
Letter to an Employee Who May Be Eligible for FMLA
Notice of Health Insurance Termination due to Nonpayment of Premium During FMLA Leave
FMLA Key Employee Notification
FMLA Repayment of Health Care Premiums Letter
FMLA Transfer to an Alternative Position (Foreseeable Leave)

Policies

FMLA Policy 

U.S. DOL Resources

FMLA Fact Sheets

The Employer's Guide to the Family and Medical Leave Act

FMLA Resources

Endnote

¹U.S. Department of Labor. Glossary of terms used in the FMLA. Retrieved from https://webapps.dol.gov/elaws/whd/fmla/3.aspx?Glossary_Word=EMPLOYER