Questions and Answers
Q: How much leave am I entitled to
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: How is the 12-month period
calculated under FMLA?
Employers may select one of four options
for determining the 12-month period:
fixed 12-month "leave year" such as a fiscal year, a year required by
state law, or a year starting on the employee’s "anniversary" date;
12-month period measured forward from the date any employee’s first FMLA
leave begins; or
"rolling" 12-month period measured backward from the date an employee
uses FMLA leave.
Q: Does the law guarantee paid time
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: Does workers’ compensation leave
count against an employee’s FMLA leave entitlement?
It can. FMLA leave and workers’ compensation
leave can run together, provided the reason for the absence is due to a
qualifying serious illness or injury and the employer properly notifies
the employee in writing that the leave will be counted as FMLA leave.
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
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: If an employer fails to tell
employees that the leave is FMLA leave, can the employer count the time
they have already been off against the 12 weeks of FMLA leave?
In most situations, the employer cannot count
leave as FMLA leave retroactively. Remember, the employee must be
notified in writing that an absence is being designated as FMLA leave.
If the employer was not aware of the reason for the leave, leave may be
designated as FMLA leave retroactively only while the leave is in
progress or within two business days of the employee’s return to work.
Q: Who is considered an immediate
"family member" for purposes of taking FMLA leave?
An employee’s spouse, children (son or
daughter), and parents are immediate family members for purposes of FMLA.
The term "parent" does not include a parent "in-law". The terms son or
daughter do not include individuals age 18 or over unless they are
"incapable of self-care" because of mental or physical disability that
limits one or more of the "major life activities" as those terms are
defined in regulations issued by the Equal Employment Opportunity
Commission (EEOC) under the
Americans With Disabilities Act (ADA).
Q: May I take FMLA leave for visits to
a physical therapist, if my doctor prescribes the therapy?
Yes. FMLA permits you to take leave to
receive "continuing treatment by a health care provider," which can
include recurring absences for therapy treatments such as those ordered
by a doctor for physical therapy after a hospital stay or for treatment
of severe arthritis.
Q: Which employees are eligible to take
Employees are eligible to take FMLA leave if
they have worked for their employer for at least 12 months, and have
worked for at least 1,250 hours over the previous 12 months, and work at
a location where at least 50 employees are employed by the employer
within 75 miles.
Q: Do the 12 months of service with the
employer have to be continuous or consecutive?
No. The 12 months do not have to be
continuous or consecutive; all time worked for the employer is counted.
Q: Do the 1,250 hours include paid
leave time or other absences from work?
No. 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 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. As a rule of thumb, the
following may be helpful for estimating whether this test for
eligibility has been met;
hours worked in each of the 52 weeks of the year; or
104 hours worked in each of the 12 months of the year;or
hours worked per week for more than 31 weeks (over seven months) of the
Q: Do I have to give my employer my
medical records for leave due to a serious health condition?
No. You do not have to provide medical
records. The employer may, however, request that, for any leave taken
due to a serious health condition, you provide a medical certification
confirming that a serious health condition exists.
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: Are there any restrictions on how I
spend my time while on leave?
Employers with established policies regarding
outside employment while on paid or unpaid leave may uniformly apply
those policies to employees on FMLA leave. Otherwise, the employer may
not restrict your activities. The protections of FMLA will not, however,
cover situations where the reason for leave no longer exists, where the
employee has not provided required notices or certifications, or where
the employee has misrepresented the reason for leave.
Q: Can my employer make inquiries about
my leave during my absence?
Yes, but only to you. Your employer may ask
you questions to confirm whether the leave needed or being taken
qualifies for FMLA purposes, and may require periodic reports on your
status and intent to return to work after leave. Also, if the employer
wishes to obtain another opinion, you may be required to obtain
additional medical certification at the employer’s expense, or
rectification during a period of FMLA leave. The employer may have a
health care provider representing the employer contact your health care
provider, with your permission, to clarify information in the medical
certification or to confirm that it was provided by the health care
provider. The inquiry may not seek additional information
regarding your health condition or that of a family member.
Q: Can my employer refuse to grant me
If you are an "eligible" employee who has met
FMLA’s notice and certification requirements (and you have not exhausted
your FMLA leave entitlement for the year), you may not be denied
Q: Will I lose my job if I take FMLA
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
Employees who give unequivocal notice that
they do not intend to return to work lose their entitlement to FMLA
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
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
Q: Can my employer fire me for
complaining about a violation of FMLA?
No. Nor can the employer take any other
adverse employment action on this basis. It is unlawful for any employer
to discharge or otherwise discriminate against an employee for opposing
a practice made unlawful under FMLA.
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.
Q: Under what circumstances is leave
designated as FMLA leave and counted against the employee's total
In all circumstances, it is the employer's responsibility to designate
leave taken for an FMLA reason as FMLA leave. The designation must be
based upon information furnished by the employee. Leave may not be
designated as FMLA leave after the leave has been completed and the
employee has returned to work, except if;
employer is awaiting receipt of the medical certification to confirm the
existence of a serious health condition;
employer was unaware that leave was for an FMLA reason, and subsequently
acquires information from the employee such as when the employee
requests additional or extensions of leave; or,
employer was unaware that the leave was for an FMLA reason, and the
employee notifies the employer within two days after return to work that
the leave was FMLA leave.
Q: Can my employer count FMLA leave I
take against a no fault absentee policy?