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Eligible workers must have worked for their employer for at least 12 months, accumulated a minimum of 1,250 work hours in the past 12 months, and be located where the employer has at least 50 employees within a 75-mile (120 km) radius.
What entity can impose penalties for non-compliance with the FMLA?
The U.S. Department of Labor, through the Wage and Hour Division of the Employment Standards Administration, is responsible for enforcing the FMLA. This entity will review the basis of the complaint and attempt to resolve it administratively with the employer.
Are there restrictions on how time is used during an FMLA leave?
Employers with policies on external work during paid or unpaid leave can uniformly apply these policies to employees on FMLA leave. If no such policies exist, the employer cannot restrict the employee’s activities. However, the FMLA does not protect unjustified absences, failure to provide required notifications or certifications, or misrepresentation of the reason for leave.
Can an employer retroactively designate FMLA leave?
Generally, an employer cannot retroactively designate FMLA leave without prior notice. The employee must be notified in writing. If the employer is unaware of the reason for the leave, it can be designated as FMLA leave retroactively while the leave is in progress or within two business days after the employee returns to work.
How is the 12-month period defined under the FMLA?
Employers can choose from four options to define the 12-month period:
- Calendar year.
- Any fixed 12-month year, such as the fiscal year or the employee’s anniversary year.
- 12 months from the date the first FMLA leave begins.
- A rolling 12-month period measured backward from the date an employee uses FMLA leave.
- Can an employer require an employee to return to work before the FMLA leave ends?
Yes, with certain restrictions. An employer can deny the continuation of leave if the employee fails to present the required medical certification for a serious health condition. However, the employer cannot require the employee to return by offering light-duty work.
Does leave for pregnancy complications count towards the 12 weeks of FMLA?
Yes, leave for pregnancy complications does count towards the total 12 weeks of FMLA leave that an eligible employee is entitled to within a 12-month period. The Family and Medical Leave Act (FMLA) allows eligible employees to take up to 12 weeks of unpaid, job-protected leave for certain family and medical reasons, including serious health conditions like pregnancy complications. This means that if an employee needs to take leave due to complications during pregnancy, the time off will be deducted from their 12-week FMLA entitlement. This leave can be used for prenatal medical appointments, severe morning sickness, medically required bed rest, or other pregnancy-related health issues. Once the 12-week limit is reached, any additional leave needed may not be protected under the FMLA, and the employee would need to discuss further leave options with their employer, potentially using other available leave policies.
Is leave for illness or work-related injury considered part of the FMLA?
It can be. Leave for illness or work-related injury may coincide with FMLA leave if the illness or injury is serious and the employer has properly notified the employee that the leave counts as FMLA leave.
Can I use FMLA leave for physical therapy sessions?
Yes, the FMLA allows leave for receiving continuous treatment from a healthcare provider, which includes therapies prescribed by a doctor.
Do I have to provide my medical records to my employer for an FMLA leave?
No, you are not required to provide medical records. However, the employer may require a medical certification confirming the serious health condition for any FMLA leave taken.
Can an employer fire me for claiming an FMLA violation?
No, it is illegal for an employer to fire or retaliate against an employee for opposing illegal practices under the FMLA.
Can an employer refuse to grant FMLA leave?
If the employee is «eligible» and meets the notification and certification requirements, the employer cannot deny FMLA leave.
How much leave do I have under the FMLA?
An eligible employee is entitled to 12 weeks of leave for specific family or medical reasons within a 12-month period. This leave can be used for various reasons, such as the birth and care of a newborn, adoption or foster care of a child, caring for an immediate family member with a serious health condition, or the employee’s own serious health condition that prevents them from performing their job. The FMLA also includes provisions for emergencies related to a family member on active duty in the Armed Forces. Employers must maintain the employee’s health insurance under the same conditions as if they were working. After FMLA leave, the employee generally has the right to return to the same or an equivalent position with the same pay, benefits, and working conditions.
Do the 1,250 hours include paid leave?
No, the 1,250 hours refer only to hours actually worked. Paid and unpaid leaves, including FMLA leave, are not included.
Do the 12 months of service with the employer have to be continuous?
No, the 12 months of service do not have to be continuous or consecutive; all time worked for the employer counts. This means if an employee has had breaks in employment, such as job changes within the same company or periods of unemployment, those intervals can still add up to meet the 12-month eligibility requirement under the FMLA. For example, if an employee worked 8 months, left, and then returned to complete another 4 months, those periods combine to fulfill the 12-month eligibility under the FMLA.
Can an employer consider FMLA leave a violation of an absenteeism policy?
No, an employer cannot consider using FMLA leave as a violation of an absenteeism policy. The FMLA is designed to protect employees who need to take leave for specific family or medical reasons and ensures they are not penalized for doing so. This includes protection against disciplinary actions, termination, or other negative actions based on FMLA leave. Additionally, employers cannot use FMLA leave time as a factor in performance evaluations, promotions, or termination decisions. Employees facing retaliation or discrimination for using FMLA leave can file a complaint with the U.S. Department of Labor, which can investigate and take corrective action.
Consult with a lawyer specializing in the Family and Medical Leave Act (FMLA) today
This article is informative, but legal issues can be complex and stressful. A lawyer specializing in FMLA can address your specific legal needs, explain the law, and represent you in court. Contact a qualified FMLA lawyer to discuss your particular legal situation.
