Wage and Hour Division (WHD)
Frequently Asked Questions About The Proposed Revisions To The Department's FMLA Regulations
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.