The Family and Medical Leave Act of 1993 (FMLA) permits eligible employees to take a total of 12 weeks of job-protected leave (mandated leave is unpaid, but employers may provide paid leave) during a 12-month period due to the employee’s or a family member’s serious health condition, or care of a new child due to the birth, adoption, or placement of a child for adoption or foster care. Eligible employees are defined as employees who have been employed for at least 12 months (not necessarily consecutive), have worked at least 1250 hours during the 12 months preceding the leave, and work for an employer who has 50 or more employees at the office or worksite (within 75 mile area). (All employees are counted in the number, including part-time employees). The employer is required to designate the 12 month period in its policy. The 12 week leave is not required to be taken in one block, but under certain circumstances, may be taken intermittently in smaller blocks or with a reduced work schedule (may require employer permission). In some circustances, two spouses with the same employer must take leave for the same issue concurrently.
29 U.S.C. § 2601 et.seq covers the FMLA. Regulations are published by the U.S. Department of Labor in 29 C.F.R. § 825. Iowa has a FMLA policy covering state employees located at the Iowa Department of Administrative Services website.
Leave Requests:
Leave must be requested by the employee, but the employee must give the employer sufficient information for the employer to know if it is being requested for FMLA purposes. The leave must be requested at least 30 days in advance unless it is an emergency situation and then as soon as reasonably possible and at least within 1-2 business days after the need is known. The employer is entitled to know the medical reason for the leave, anticipated timing and dates of leave, duration of leave, why the leave is medically necessary, and the schedule of treatment. 29 CFR § 825.302. Employers may ask the employee to complete a request for leave form which should include questions about the FMLA. Employers should also prepare a checklist of questions if the employee calls in. Case law generally states that if the employee states that he/she is “sick”, “not feeling well”, or “ill”, sufficient information has not been provided to qualify for FMLA. After the employee returns to work, the employer may ask the employee how he/she is feeling, what he/she did on the time off, or if he/she saw a doctor. An employer may question the employee if the employer receives information that the FMLA was not legitimate, and can question suspicious patterns.
Leave may be taken continuously, intermittently, or on a reduced schedule, and the employer cannot force an employee to take more time off than necessary. The employer may obtain medical documentation of the need for leave, and if the employer requires medical certification, must give the employee 15 days to return the certification and advise the employee of the consequences of not returning the form on time. 29 CFR § 825.305. A complete medical certification must contain information required under 29 CFR § 306(b). The employee may extend the 15 day period for a reasonable period of time if the form is not returned on time and the employee has made a diligent effort. The employer can ask for recertification of the need for leave (note that recertification rules are confusing, but recertification can be asked for as often as permissible according to the rules).
Employer Requirements:
Employers are required to post the FMLA poster, provide a general statement of employee rights and obligations in the employee handbook or a separate FMLA policy, and provide a specific notice that the leave has been designated as FMLA leave and specify employee rights and obligations along with the leave request. The employer can force the employee to use and exhaust any paid time off such as vacation, personal days, or sick days. FMLA absences cannot be used against the employee in applying any attendance policy.
The employer is required to provide several notices to an employee applying for FMLA leave. The eligibility notice must be provided to an employee applying for FMLA leave to inform the employee of his/her eligibility for FMLA leave. If the employee is not eligible, the nocie must state the reason why the employee is not eligible. The eligibility notice must be provided within 5 business days after the first time that an employee requests FMLA leave in the employer's FMLA leave year. A new notice is only required within the employer's FMLA leave year if the employee's eligibility status changes. The written designation notice to a FMLA-qualifying employee should designate the leave as FMLA-qualifying or not, and provide the notice within 5 business days after determining whether the leave qualifies. The rights and responsibilites notice to an employee must include the employer's designated 12-month FMLA leave year, whether a certification and other documentation will be required, whether the employee will require the use of paid time off benefits while the employee is on leave, and other rights and responsibilites of the employee.
The employer must reinstate you to the same position held prior to leave, following FMLA leave, or to a position equivalent in pay, benefits, and other working conditions. However, the employee has no greater right to reinstatement than if he/she had not taken leave. The employer cannot eliminate the position just because the employee went on leave, but could possibly eliminate the position for other reasons such as economic. Also, if the employee is a highly paid, key employee, the employer can refuse to reinstate. This would occur if the employee was among the 10% highest paid of the salaried workforce within a 75-mile radius of the workplace and reinstatement would cause substantial and grieous economic injury to the company. However, the employer must warn the employee in advance that he/she is considered a key employee and may not be entitled to return.
The employer must also continue health insurance during FMLA leave if it provides a group health plan. If the employee decides voluntarily not to return to work after the leave ends, the employer can require the employee to reimburse the health care premiums paid during the leave. The employer pays the health insurance premiums as an advance against pay (requiring payback when the employee returns back to work.)
The employer may not retaliate or discriminate agaginst taking FMLA leave. This includes demotion, termination, writing up or reprimanding, refusing to keep your job open, or any other action affecting the terms and conditions of your employment.
The employer is required to provide responsive answers to employee questions about their rights and responsibilities under FMLA, to discuss and resole any disputes about whether the leave qualifies under FMLA, and to document these discussions and their resolutions and to retain this documentation for 3 years.
Accommodation/ADA:
If the employee is released with duty restrictions, the employer may be required to reasonably accommodate the employee if the Americans with Disabilities Act of 1990 (ADA) applies. However, the employee can refuse the accommodations and remain on leave instead until the 12 week period is completed. Until the 12 week period is completed, the employee has guaranteed job reinstatement rights to the same or equivalent job. Employers can provide the health care provider with a list of essential duties which the health care provider is required to rely upon to define restrictions. If no list is provided by the employer, the health care provider is entitled to rely on what the employee provides.
An employee may be terminated if the leave extends beyond the 12 week (24 week in some circumstances). However, if the ADA applies, the ADA may trump the FMLA 12 week requirement. An employer may reinstate an employee after the 12 week limit, but the employer is required to be consistent in its policies.
Consent to Communicate/Fraud
Employee consent is required for the employer to communicate with the health care provider (unless the case is a worker’s compensation case). Employers should obtain employee permission. If the employee refuses, it can be an indicator of possible fraud. If fraud is suspected, an employer can obtain second or third opinions (in case of initial request for intermittent leave or renewed request for intermittent leave, but not for recertifications). If the employee refuses a second or third opinion, the employee can forego FMLA leave. The employer may utilize surveillance when fraud is suspected, and if the employee is not following doctor recommendations, the employer may be able to discharge the employee if sufficient reliable evidence is produced to support a good faith belief of fraud.
2009 Amendments:
The FMLA was amended by the National Defense Authorization Act for 2010 (and previously in 2008). The amendments expand on changes requiring certain employers to provide unpaid leave for qualifying family members whose spouse, son, daughter, or parent is on covered active military duty of the regular Armed Forces (as well as the National Guard or Reserve) who are deployed to a foreign country (not just in support of a contingency operation as previously mandated) or been notified of an impending call or order to active duty. Leave for an exigency includes the need to arrange for alternative childcare, to attend official military ceremonies, or to attend counseling. Exigency is defined under 8 circumstances:
1. Short term notice deployment (notified 7 or fewer calendar days prior to deployment). Employee is entitled to up to 7 days leave.
2. Military events and related activities (including ceremonies) related to active duty or call to active duty, to attend family support or assistance programs.
3. Childcare and school activities
4. Financial and legal arrangements
5. Counseling for self, military member, or child
6. Rest and recuperation to spend time with military member on short-term leave during period of deployment (up to 5 days for each leave)
7. Post deployment activities
8. Other activities provided employer and employee agree that they qualify as exigency
Leave has also been extended to cover military caregiver leave to families of certain veterans for serious injuries or illnesses that are the result of pre-existing conditions aggravated by service while on active duty. Leave for serious injury or illness covers leave to care for a servicemember with a serious injury or illness incurred while on active duty in the line of duty, covering current members of the Armed Forces or veterans (as long as the veteran was a member of the Armed Forces in the preceding 5 years). Up to 26 workweeks of unpaid leave in a single 12-month period (starting when employee uses leave) is allowed to care for a service member undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is on temporary disability retired list for a serious injury or illness incurred in line of duty while on active duty. This also provides for psychological injuries.
FMLA posters will be revised and regulations by the Secretary of Labor will be amended to cover the new amendments. All new employees and those requesting FMLA leave are supposed to receive a copy of (or reference to) the employer’s current FMLA policy. Employee handbooks being rewritten need to be revised to cover the new FMLA law. Current handbooks should be sufficient since employees are provided a copy of the current FMLA policy as stated above.
Violations of FMLA:
Violations of the FMLA allow the employee to file a complaint with the Secretary of Labor, or file a private lawsuit pursuant to section 107 of the FMLA. A lawsuit must be filed within 2 years after the last action which the employee contends was a violation or 3 years if the violation was willful. An employee may receive wages, employment benefits, or other compensation denied or lost, or actual monetary loss due to direct result of violation up to 26 weeks of wages of servicemember or 12 weeks of wages for employee. Interest is also authorized. Equitable relief is also allowed, and reasonable attorney’s fees may be awarded. 29 CFR 825.400.
____________________________________________________________________________________________________
Disclaimers: Information on this web site can not be construed as legal advice, and you are advised to seek legal counsel and not rely on this or any other website. Use of this web site does not create an attorney/client relationship and should not be viewed as creating such a relationship.
The determination of the need for legal services and the choice of a lawyer are extremely important decisions and should not be based solely upon advertisements or self-proclaimed expertise.
A description or indication of limitation of practice does not mean that any agency or board has certified such lawyer as a specialist or expert in an indicated field of law practice nor does it mean that such lawyer is necessarily any more expert or competent than any other lawyer. All potential clients are urged to make their own independent investigation and evaluation of any lawyer being considered.
"We are a Debt Relief Agency. We Help People File for Bankruptcy Under the Bankruptcy Code."
Contingent fee rates are subject to rule 32:1.5(c) and (d). Percentages are computed after deduction of costs and the public is advised that, in the event of an adverse verdict or decision, the contingent fee litigant could be liable for court costs, expenses of investigation, expenses of medical examinations, and costs of obtaining and presenting evidence. Contingent fee agreements are not available for criminal law cases and most family law cases.
In the event a lawyer’s communication seeks to advise the client of litigation, the client is advised that the filing of a claim or suit solely to coerce a settlement or to harass another could be illegal and could render the person so filing liable for malicious prosecution or abuse of process.
IRS Circular 230 Disclosure: To ensure compliance with requirements imposed by the U.S. Internal Revenue Service, we inform you that any tax advice contained on this website is not intended or written to be used, and cannot be used, for the purpose of (1) avoiding tax-related or other penalties under the U.S. Internal Revenue Code, or (2) promoting, marketing or recommending to another party any tax-related matter addressed herein.