HEALTH CARE: Family Medical Leave Act: frequently asked questions
Q: Which employees are eligible to take FMLA leave?
Employees are eligible to take FMLA leave if they have worked for their employer for at least 12 months, have worked at least 1,250 hours over the previous year, and work at a location where at least 50 employees are employed by the employer within 75 miles. The 1,250 hours include only those hours actually worked for the employer. Paid leave and unpaid leave, including FMLA leave, are not included.
Q: How much leave am I entitled to under FMLA?
If you are an “eligible” employee, you are entitled to 12 weeks of leave for certain family and medical reasons during a 12-month period.
Q: Does the law guarantee paid time off?
No. The FMLA only requires unpaid leave. However, the law permits an employee to elect, or the employer to require the employee, to use accrued paid leave, such as vacation or sick leave, for some or all of the FMLA leave period. When paid leave is substituted for unpaid FMLA leave, it may be counted against the 12-week FMLA leave entitlement if the employee is properly notified of the designation when the leave begins.
Q: Can the employer count leave taken due to pregnancy complications against the 12 weeks of FMLA leave for the birth and care of my child?
Yes. An eligible employee is entitled to a total of 12 weeks of FMLA leave in a 12-month period. If the employee has to use some of that leave for another reason, including a difficult pregnancy, it may be counted as part of the 12-week FMLA leave entitlement.
Q: Can the employer count time on maternity leave or pregnancy disability as FMLA leave?
Yes. Pregnancy disability leave or maternity leave for the birth of a child would be considered qualifying FMLA leave for a serious health condition and may be counted in the 12 weeks of leave, so long as the employer properly notifies the employee in writing of the designation.
Q: How do I determine if I have worked 1,250 hours in a 12-month period?
Your individual record of hours worked would be used to determine whether 1,250 hours had been worked in the 12 months prior to the commencement of FMLA leave. The 12 months do not have to be continuous or consecutive; all time worked for the employer is counted.
As a rule of thumb, the following may be helpful for estimating whether this test for eligibility has been met; 24 hours worked in each of the 52 weeks of the year; or over 104 hours worked in each of the 12 months of the year; or 40 hours worked per week for more than 31 weeks (over seven months) of the year.
Q: Can my employer require me to return to work before I exhaust my leave?
Subject to certain limitations, your employer may deny the continuation of FMLA leave due to a serious health condition if you fail to fulfill any obligations to provide supporting medical certification. The employer may not, however, require you to return to work early by offering you a light duty assignment.
Q: Will I lose my job if I take FMLA leave?
Generally, no. It is unlawful for any employer to interfere with or restrain or deny the exercise of any right provided under this law. Employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions; nor can FMLA leave be counted under “no fault” attendance policies. Under limited circumstances, an employer may deny reinstatement to work, but not the use of FMLA leave to certain highly-paid, salaried (“key”) employees.
Q: Are there other circumstances in which my employer can deny me FMLA leave or reinstatement to my job?
In addition to denying reinstatement in certain circumstances to “key” employees, employers are not required to continue FMLA benefits or reinstate employees who would have been laid off or otherwise had their employment terminated had they continued to work during the FMLA leave period as, for example, due to a general layoff. Employees who give unequivocal notice that they do not intend to return to work lose their entitlement to FMLA leave. Employees who are unable to return to work and have exhausted their 12 weeks of FMLA leave in the designated “12 month period” no longer have FMLA protections of leave or job restoration.
Under certain circumstances, employers who advise employees experiencing a serious health condition that they will require a medical certificate of fitness for duty to return to work may deny reinstatement to an employee who fails to provide the certification, or may delay reinstatement until the certification is submitted.
Q: Does an employer have to pay bonuses to employees who have been on FMLA leave?
The FMLA requires that employees be restored to the same or an equivalent position. If an employee was eligible for a bonus before taking FMLA leave, the employee would be eligible for the bonus upon returning to work.
The FMLA leave may not be counted against the employee. For example, if an employer offers a perfect attendance bonus, and the employee has not missed any time prior to taking FMLA leave, the employee would still be eligible for the bonus upon returning from FMLA leave.
On the other hand, FMLA does not require that employees on FMLA leave be allowed to accrue benefits or seniority. For example, an employee on FMLA leave might not have sufficient sales to qualify for a bonus. The employer is not required to make any special accommodation for this employee because of FMLA. The employer must, of course, treat an employee who has used FMLA leave at least as well as other employees on paid and unpaid leave (as appropriate) are treated.
Source: U.S. Department of Labor