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This Web
page provides answers to some commonly-asked questions about the Department
of Labor’s proposed revisions to the Family and Medical Leave Act (FMLA)
regulations, 29 C.F.R.
Part 825. For a full discussion of the proposed changes, please review
the FMLA Notice of Proposed Rulemaking
Website. The
Department is seeking public comment on its proposal. Accordingly, the
proposal may be revised in response to those comments before it is finalized.
Military Family Leave
Question: Are there new FMLA
leave entitlements for military families?
Yes. On January 28, 2008, President
Bush signed into law a bill that provides new FMLA leave entitlements to
military families. Section 585(a) of the National Defense Authorization
Act for FY 2008 (NDAA), Public Law 110-181, amended the FMLA to provide
eligible employees of covered employers with 26 weeks of FMLA leave in a single
12-month period to care for a member of the Armed Forces 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 incurred in the line of duty on active duty. The NDAA also
amended the FMLA to allow eligible employees of covered employers to take FMLA
leave because of any qualifying exigency arising out of the fact that a covered
family member is on active duty or has been notified of an impending call to
active duty status in support of a contingency operation.
Question: When do the new
military family leave provisions become effective?
The provisions of NDAA providing
FMLA leave to care for a covered servicemember became effective on January 28, 2008, when the law
was enacted. The provisions of NDAA providing for FMLA leave due to a
qualifying exigency arising out of a covered family member’s active duty (or
call to active duty) status are not effective until the Secretary of Labor
issues regulations defining “qualifying exigencies.”
Question: Does the
Department’s proposal address these new military family leave provisions?
Yes. Because of the
significant number of servicemembers currently on active duty or call to active
duty status, the Department is fully aware of the need to issue regulations
under the military family leave provisions of NDAA as soon as possible.
Therefore, the Department included in its proposal a description of the
statutory provisions regarding military family leave, a discussion of the
issues the Department has identified, and a series of questions seeking comment
on subjects and issues that may be considered in the final regulations.
Because of the need to issue regulations as soon as possible so that employees
and employers are aware of their respective rights and obligations regarding
military family leave under FMLA, the Department anticipates that the next step
in the rulemaking process, after full consideration of all comments received,
will be the issuance of final regulations regarding military family leave.
Qualifying Reasons for FMLA Leave
Question: Can I still use
FMLA leave during pregnancy or after the birth of a child?
Yes. Under both the current and proposed rule, a mother can
use 12 weeks of FMLA leave for the birth of a child, for prenatal care and
incapacity related to pregnancy, and for her own serious health condition
following the birth of a child. A father can use FMLA leave for the birth of a
child and to care for his pregnant spouse who is incapacitated.
Question: Can I continue to
use FMLA for leave due to my chronic serious health condition?
Yes. Under both the current and proposed rules, continuing
treatment for a serious health condition includes any period of incapacity or
treatment due to a chronic serious health condition. Both the current and
proposed regulations define a chronic serious health condition as one that (1)
requires “periodic visits” for treatment by a health care provider or nurse
under the supervision of the health care provider, (2) continues over an
extended period of time, and (3) may cause episodic rather than continuing
periods of incapacity. The proposed rule clarifies this definition by defining
“periodic visits” as at least twice a year.
Question: Are there any
changes to the definition of a serious health condition under the proposed
regulations?
Under the current and proposed rules, a “serious health
condition” is defined as an illness, injury, impairment, or physical or mental
condition that involves inpatient care or continuing treatment by a health care
provider. The “continuing treatment” test for a serious health condition under
both the current and proposed regulations may be met through (1) a period of
incapacity of more than three consecutive calendar days plus treatment by a
health care provider twice, or once with a continuing regimen of treatment, (2)
any period of incapacity related to pregnancy or for prenatal care, (3) any
period of incapacity or treatment for a chronic condition, (4) a period of
incapacity for permanent or long-term conditions for which treatment may not be
effective, or (5) any period of incapacity to receive multiple treatments
(including recovery from those treatments) for restorative surgery, or for a
condition which would likely result in an incapacity of more than three
consecutive calendar days absent medical treatment.
The proposed rule makes two small changes. First, it
specifies that if an employee asserts a serious health condition under the
requirement of a “period of incapacity of more than three consecutive calendar days
plus treatment by a health care provider twice”, the two visits to a health
care provider must occur within 30 days of the beginning of the period of
incapacity. Additionally, as explained in the response to the previous
question, the proposed regulations define “periodic visits” for treatment of a
chronic serious health condition as at least twice a year.
Eligibility for FMLA Leave
Question: I have 12 months
of service with my employer, but they are not consecutive. Do I still qualify
for FMLA?
You may. Under both the current and proposed regulations, in
order to be eligible to take leave under the FMLA, an employee must (1) work for
a covered employer, (2) work 1,250 hours during the 12 months prior to the
start of leave, (3) work at a location where 50 or more employees work at that
location or at site with 75 miles of it, and (4) have worked for the employer
for 12 months. The 12 months of employment are not required to be consecutive
under either the current or proposed regulations in order for the employee to qualify
for FMLA leave. The proposed rule clarifies, however, that employment prior to
a continuous break in service of five years or more need not be counted unless
the break in service is (1) due to an employee’s fulfillment of military
obligations, or (2) governed by a collective bargaining agreement or other
written agreement.
Question: If I have to miss
work due to National Guard or Reserve duty, will this affect my eligibility for
FMLA leave?
No. The proposed rule makes clear the protections for our
men and women serving in the military by stating that a break in service due to
an employee’s fulfillment of military obligations must be taken into
consideration when determining whether an employee has been employed for 12
months or has the required 1,250 hours of service.
Under the Uniformed Services Employment and Reemployment
Rights Act of 1994 (USERRA), hours that an employee would have worked but for
his or her military service are credited toward the employee’s required 1,250
hours worked for FMLA eligibility. Similarly, the time in military service
also must be counted in determining whether the employee has been employed at
least 12 months by the employer.
Example:
Dean worked for his employer for six months in 2006, then
was called to active duty status with the Reserves and deployed to Iraq. In
2008, Dean returned to his employer, requesting to be reinstated under the
USERRA. Both the hours and the months that Dean would have worked but for his
military status must be counted in determining his FMLA eligibility.
Employer Notice Requirements
Question: What are an
employer’s posting and general notice requirements?
Under the current and proposed regulations, an employer must
post a notice explaining the FMLA’s provisions and providing information
regarding procedures for filing a claim under the Act. Additionally, under
both the current and proposed regulations, an employer must include information
regarding an employee’s rights and responsibilities under FMLA in any employee
handbook or other written policies or manuals describing employee benefits and
leave provisions. Under the current regulations, an employer who does not have
a handbook or other written guidance must provide this required general notice
to an employee within one or two business days of a request for leave every six
months but only if the employee takes FMLA leave during that six-month period.
Under the proposed regulations, an employer without a handbook or written
guidance will be required to provide general notice to all employees at least
once a year, even where there has not been a specific request for leave.
Question: Is there a penalty
if an employer fails to post the required FMLA notice?
Both the current and proposed regulations provide that an
employer who willfully fails to post the required FMLA notice may be assessed a
civil monetary penalty. Under the current regulations, the penalty is $100;
the proposed regulations increase the penalty to $110 to meet the requirements
of the Debt Collection Improvement Act of 1996.
Question: How soon after an
employee provides notice of the need for leave must an employer determine
whether someone is eligible for FMLA leave?
Under the current regulations, an employer must inform the
employee within two business days of making an eligibility determination. The
employer is also required to notify the employee of his or her specific rights
and responsibilities and the consequences of failing to meet these
responsibilities, but this notice requirement does not specifically encompass
eligibility status. Under the proposed regulations, this specific notification
of rights and responsibilities incorporates notification of the employee’s
eligibility status and must be provided by the employer within five business days
of the employee requesting leave or the employer learning that an employee’s
leave may be for a FMLA-qualifying condition.
Question: How soon after an
employee provides notice of the need for leave must an employer notify an
employee that the leave will be designated and counted as FMLA leave?
Under the current regulations, an employer must notify an
employee that leave will be designated and counted as FMLA leave within two business
days of learning that the leave is being taken for an FMLA reason, absent
extenuating circumstances. Under the proposed regulations, this timeframe is
extended to five days.
In addition, the proposed regulations require an employer to
inform the employee of (1) the number of hours, days or weeks that will be designated
as FMLA leave; and (2) whether paid leave will be substituted for unpaid FMLA.
Where it is not possible to provide the number of hours, days, or weeks that will
be designated as FMLA leave (e.g., for unforeseeable intermittent leave), an
employer must provide this information every 30 days if leave was taken during
the prior 30-day period.
Example:
On March 30, April 17, and May 15, Rachel takes unscheduled
intermittent FMLA leave for her asthma attacks. Rachel’s employer must ensure
that within 30 days of each absence Rachel receives a written notice detailing
how much FMLA leave she has used and whether her paid leave is being
substituted for unpaid FMLA leave.
Question: If an employer
fails to tell an employee that the leave is FMLA leave, can the employer count
the leave against the employee’s 12 week FMLA leave entitlement?
Under
the current regulations (in most situations), the employer cannot designate leave
as FMLA leave retroactively if it did not notify the employee that the absence was
being designated as FMLA leave within two days of learning that the leave was
being taken for a FMLA required reason although there are exceptions to this
rule. If the employer was unaware of the reason for the leave, it may
retroactively designate the leave as FMLA leave while the leave is in progress
or within two business days of the employee’s return to work. Additionally,
under the current regulations, where an employer fails to designate the leave
as FMLA-qualifying and notify the employee of the designation, the employee is
provided the full protections of the FMLA, but none of the absence preceding
the notice can be counted against the employee’s 12 week FMLA entitlement. In
other words, under the current regulations, the employee may receive additional
FMLA-protected leave beyond the 12 weeks provided by the statute.
The
proposed regulations revise the designation provisions to comply with the U.S. Supreme
Court’s decision in Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81
(2002). Ragsdale ruled that the “categorical” penalty for failure to
appropriately designate FMLA leave under the current regulations was
inconsistent with the statutory entitlement to only 12 weeks of FMLA leave and
contrary to the statute’s remedial requirement to demonstrate individual harm.
Under the proposed regulations, retroactive designation is permitted, however, if
an employer fails to timely designate leave as FMLA leave (and notify the
employee of the designation). The employer may be liable if the employee can
show that he or she has suffered harm or injury as a result. Additionally, an
employee and employer may agree to retroactively designate an absence as
FMLA-protected.
Example:
Henry plans to take 12 weeks of FMLA leave
beginning in August for the birth of his second child. Earlier in the leave
year, however, Henry took two weeks of annual leave to care for his mother
following her hospitalization for a serious health condition. Henry’s employer
failed to notify him at the time of his mother’s hospitalization that the time
he spent caring for his mother would be counted as FMLA leave. If Henry can
establish that he would have made other arrangements for the care of his mother
if he had known that the time would be counted against his FMLA entitlement,
the two weeks his employer failed to appropriately designate may not count
against his 12 week FMLA entitlement.
Employee Notice Requirements
Question: How much notice
must an employee give before taking FMLA leave?
Under the current and proposed regulations, and as required
by the statute, when the need for leave is foreseeable, an employee must give at
least 30 days notice. If 30 days notice is not possible, an employee is
required to provide notice “as soon as practicable.” Under the current
regulations, this provision has been interpreted to mean that an employee’s
notice is sufficient if it takes place within two business days from the date
the need for leave becomes known, even when it would have been practicable for
the employee to provide notice sooner.
The proposed regulations reiterate the current regulatory
requirement that in all instances in which 30 days notice is not possible, employees
are expected to provide notice of the need for leave as soon as practicable. The
proposed regulations make clear, however, that “as soon as practicable” does
not mean that employees may delay providing notice of the need for FMLA leave
to their employers. When the need for foreseeable leave is not known to the
employee 30 days in advance, the employee must provide notice as soon as
practicable. An example included in the proposed regulations indicates that,
depending on when the employee becomes aware of the need for leave, it will
ordinarily be practicable for the employee to provide notice to his or her
employer on the same day or the next business day. When the need for leave is
unforeseeable, employees are required to provide notice as soon as practicable,
which the proposed regulations clarify to mean that the employee must promptly
notify the employer of the need for FMLA leave. The Department expects that in
all but the most extraordinary circumstances, employees should be able to
provide notice at least prior to the start of their shift.
Example:
On June 15, Mandy schedules her cancer treatment for July 16.
On June 15, she also tells her employer that she will be taking FMLA leave on
July 16. This is foreseeable leave. Mandy has met the 30 day notice requirement.
Question: What type of
notice must an employee give when taking FMLA leave?
Under the current and proposed regulations, an employee does
not need to specifically assert his or her rights under FMLA, or even mention
FMLA, when providing notice. The employee must provide “sufficient
information” to make the employer aware of the need for FMLA leave and the
anticipated timing and duration of the leave.
The proposed regulation provides additional guidance for
employees regarding what is “sufficient information.” It clarifies that the
employee must indicate that he or she is unable to perform the functions of the
job (or that a covered family member is unable to participate in regular daily
activities), the anticipated duration of the absence, and whether he or she (or
the family member) intends to visit a health care provider or is under the
continuing care of a health care provider.
Question: Is an employee
required to follow an employer’s normal call-in procedures when taking FMLA
leave?
Yes. Under the current and proposed regulations an employee
may be required to comply with an employer’s call-in procedures, except those
that have a more stringent timing requirement than the regulations impose and
those that require advance written notice when the leave is due to a medical
emergency. The proposed regulations make clear that, if the employee fails to
properly follow the procedures, he or she may have the FMLA leave request
delayed or denied and may be subject to whatever discipline the employer’s
rules provide.
Example:
Sam has a medical certification on file with his employer
for his chronic serious health condition, migraine headaches. He is unable to
report to work at the start of his shift due to a migraine and needs to take
unforeseeable FMLA leave. He follows his employer’s absence call-in procedure
to timely notify his employer about his need for leave. Sam has provided his
employer with appropriate notice.
Certification of Need for FMLA Leave
Question: Do I have to give
my employer my medical records for leave due to a serious health condition?
No. You are not required under either the current or the
proposed regulations to give your employer your medical records. Your
employer, however, does have a statutory right to request that you provide
medical certification containing sufficient medical facts to establish that a
serious health condition exists.
Question: What if I do not
want my employer to know about my medical condition?
Under both the current and proposed rule, if your employer
requests it, you are required to provide a complete and sufficient medical
certification in order to take FMLA-protected leave. However, under both the
current and proposed rule, employers are required to maintain any medical
records or documents as confidential medical records in separate files/records
from the usual personnel files.
Question: How soon after I
request leave does my employer have to request a medical certification of a
serious health condition?
Under the current regulations, your employer should request
medical certification, in most cases, at the time you give notice of your need
for leave or within two business days. If the leave is unforeseen, your
employer should request medical certification within two business days after
the leave begins. Under the proposed regulations, these time frames are
extended to five business days.
Under both the current and proposed regulations, your
employer may request certification at a later date if it has reason to question
the appropriateness or duration of your leave.
Question: What happens if my
employer says my medical certification is incomplete?
Under the current and proposed regulations, an employer must
advise the employee if it finds the certification is incomplete and allow the
employee a reasonable opportunity to cure the deficiency. The proposed
regulations require that the employer state in writing what additional
information is necessary to make the certification complete and sufficient. The
proposed regulations also require that the employer allow the employee at least
seven calendar days to cure the deficiency, unless seven days is not
practicable under the particular circumstances despite the employee’s diligent
good faith efforts.
Question: May my employer
contact my health care provider about my serious health condition?
Under the current regulations, the employer’s health care provider may, with
the employee’s permission, contact the employee’s health care provider to clarify and
authenticate a medical certification.
The proposed regulations clarify that any contact between the
employer and the employee’s health care provider must comply with the Health Insurance
Portability and Accountability Act (HIPAA) privacy regulations. Under the proposed
regulations, employers may contact the employee’s health care provider directly for
authentication or clarification of the medical certification. Such contact may not
take place, however, until after the employer has informed the employee in writing
that the medical certification is insufficient or incomplete and given the employee
the opportunity to cure the deficiency. Moreover, pursuant to the HIPAA privacy
regulations, the employee will need to provide his or her health care provider
with a written authorization allowing the doctor to provide medical information
directly to the employer. The proposed regulations also clarify
that “authentication” means providing the health care provider with a
copy of the certification and requesting verification that the
information was completed or authorized by the provider. “Clarification” is
defined under the proposed rule as contacting the health care provider to
understand the handwriting on the medical certification or to understand
the meaning of a response. As is the case under the current
regulations, employers may not ask the health care provider for additional
information beyond that contained on the medical certification form.
Question: Must I sign a
medical release as part of a medical certification?
No. Under both the current and proposed regulations, an
employer may not require employees to sign a release or waiver as part of the
medical certification process. A section has been added to the proposed
regulations to clarify that completing any such authorization is at the employee’s
discretion. Whenever an employer requests a certification, however, it is the
employee’s responsibility to provide the employer with a complete and
sufficient certification. If an employee does not provide either a complete
and sufficient certification or an authorization as required under HIPAA’s
privacy regulations allowing the employer to clarify the certification with the
employee’s health care provider, the employee’s request for FMLA leave may be
denied if the certification is unclear.
Question: How often may my
employer ask for medical certifications for an on-going serious health
condition?
Under the current regulations,
an employer may request recertification for pregnancy, chronic, or permanent or
long-term conditions no more often than once every thirty days and only in
connection with an absence by the employee, unless the employer receives
information that casts doubt upon the stated reason for leave or if the
circumstances of the leave have changed significantly. Where the medical
certification specifies a minimum period of incapacity longer than thirty days,
a recertification cannot be requested until that minimum period has passed,
unless the circumstances of the leave have changed significantly, the employee
requires an extension of leave, or the employer receives information that casts
doubt upon the continuing validity of the certification.
The proposed regulations
establish a general rule allowing recertification no more often than every
thirty days in connection with an absence by the employee. Similar to the
current regulations, the proposed regulations also allow an employer to request
recertification in less than thirty days if the employee requests an extension
of leave, the circumstances described in the previous certification have
changed significantly, or if the employer receives information that casts doubt
upon the employee’s stated reason for the absence or the continuing validity of
the certification. For certifications specifying a minimum period of
incapacity of more than thirty days, the employer generally must wait to
request a recertification until the specified period has passed, except that,
under the proposed rule, in all cases the employer may request recertification
every six months in connection with an absence by the employee.
Additionally, the proposed rule
codifies a 2005 Wage and Hour opinion letter that stated that employers may
request a new medical certification each leave year for medical conditions that
last longer than one year.
Examples:
Janie takes six weeks of FMLA leave for a cancer operation
and treatment and gives her employer a medical certification that states that
she will be absent for six weeks. Since her certification covers a six-week
absence, her employer cannot ask for a recertification during that time. At
the end of the six-week period, Janie asks to take two more weeks of FMLA leave,
and her employer may properly ask Janie for a recertification for the
additional two weeks.
Joe takes six weeks of FMLA leave for a back operation and
intensive therapy, and gives his employer a medical certification that states
that he will be absent for six weeks. At the end of the six-week period, Joe
tells his employer that he will need to take three days of FMLA leave per month
for an indefinite period for additional therapy; his employer may properly
request a recertification at that time. Six months later, and in connection
with an absence for therapy, the employer may properly ask Joe for another
recertification for his need for FMLA leave.
Question: Can employers
require employees to submit a fitness-for-duty certification before returning
to work after being absent due to a serious health condition?
Yes. Under both the current and proposed regulations, as a
condition of restoring an employee who was absent on FMLA leave due to the
employee’s own serious health condition, an employer may have a uniformly
applied policy or practice that requires all similarly situated employees who
take leave for such conditions to submit a certification from the employee’s
own health care provider that the employee is able to resume work. Under the
current regulations, this fitness-for-duty certification need only be a simple
statement of the employee’s ability to return to work. The proposed
regulations stipulate that the fitness-for-duty certification must certify that
the employee is able to return to work and must specifically address the
employee’s ability to perform the essential functions of the position if the
employer has appropriately notified the employee that this information will be
required and has provided a list of essential functions. Additionally, under
the proposed regulations, employers may require a fitness-for-duty
certification once every 30 days for an employee taking intermittent or reduced
schedule FMLA leave if reasonable safety concerns exist regarding the employee’s
ability to perform his or her duties based on the condition for which leave was
taken.
Question: What happens if I
do not submit a requested medical or fitness-for-duty certification?
Medical certification: Under both the current and
proposed regulations, if an employee fails to timely submit a properly
requested medical certification (absent sufficient explanation of the delay),
FMLA protection for the leave may be delayed or denied. If the employee never
provides a medical certification, then the leave is not FMLA leave.
Fitness-for-Duty certification: Under both the
current and proposed regulations, if an employee fails to submit a properly
requested fitness-for-duty certification, the employer may delay the job restoration
until the employee provides the certification. If the employee never provides
the certification, he or she may be denied reinstatement.
Miscellaneous Questions
Question: Can my FMLA leave
be counted against me for my perfect attendance award?
Under the current regulations, to the extent that an
employee has otherwise met the requirements for a perfect attendance bonus, the
employee may not be disqualified from the bonus as the result of taking FMLA
leave. In contrast, if the employee is on FMLA leave during any part of the
period for which a production bonus is paid, the employee may be disqualified
from receiving that bonus so long as employees on other types of leave receive
the same treatment.
The Department proposes to change the treatment of perfect
attendance awards to allow employers to deny a perfect attendance award to an
employee who takes FMLA leave (and is thus absent) as long as it treats
employees taking non-FMLA leave in an identical way. This addresses the
unfairness perceived by employees and employers as a result of allowing an
employee to obtain a perfect attendance award for a period during which the
employee was absent from the workplace on FMLA leave.
Question: My medical
condition limits me to a 40 hour workweek but my employer has assigned me to
work eight hours of overtime in a week. Can I take FMLA leave for the overtime?
Yes. The current and proposed regulations both allow
employees with proper medical certifications to use FMLA leave in lieu of
working required overtime hours. The preamble to the proposed regulations clarifies
that the hours that an employee would have been required to work but for the
taking of FMLA leave can be counted against the employee’s FMLA entitlement. Employers
must select employees for required overtime in a manner that does not
discriminate against workers who need to use FMLA leave.
Question: Can I use my paid
leave as FMLA leave?
It depends upon the circumstances, but in many cases, yes.
Under the current regulations, an employee may choose to substitute accrued
paid vacation or personal leave without limitation for any unpaid FMLA absence.
Additionally, an employee may substitute accrued paid sick or family leave if
the reason for the absence is a qualifying reason for leave under the
employer’s sick or family leave policy. If the employee does not choose to
substitute applicable accrued paid leave, the employer may require the employee
to do so.
The proposed regulations provide that the terms and conditions
of the employer’s paid leave policies apply and must be followed by the
employee in order to substitute all forms of accrued paid leave for FMLA
leave.
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