Quiz: Understanding the FMLA Leave Calendar

by Joseph A. Brislin   Bio   email 
TOC Management Services 

[Reproduced with permission from the Employee Benefits Digest, Volume 38 Number 8, August 2001, published by the International Foundation of Employee Benefit Plans, Brookfield, WI.  All rights reserved.  Statements or opinions expressed in this article are those of the author and do not necessarily represent the views or positions of the International Foundation, its officers, directors or staff.  No further transmission or electronic distribution of this material is permitted.]

Answers to the FMLA Quiz Questions

Question #1:  What is the maximum number of days an employee has to request FMLA leave after an unforeseeable leave has commenced?  (Assume no mitigating circumstances exist.)

Answer #1:  The employee should give the employer notice within one or two working days from the date the employee learned the need for unforeseeable leave (29 CFR § 825.303).

Question #2:  The employee has properly requested FMLA leave.  How many days does  the employer have to provide the employee with written notice that designates the leave as FMLA?

Answer #2:  The employer must give the employee notice within one or two business days after the employee requests either foreseeable or unforeseeable leave (29 CFR § 825.301(c)).  The employer may condition FMLA leave for the employee’s own serious health condition or the serious health condition of a spouse, child or parent on the employee’s providing the proper medical certification (see Question #3).

Question #3:  What is the maximum number of days an employee has to provide medical certification to justify the need for leave for his/her own serious health condition?  (Assume no mitigating circumstances exist.)

Answer #3:  The employer must allow up to 15 calendar days after the employer requests the employee to provide medical certification (29 CFR §§ 825.305 and 311).  If mitigating circumstances exist, the employer must grant a “reasonable” extension.

Question #4:  The employee has provided medical certification to justify an undetermined length of leave for a serious health condition.  Circumstances have not changed.  How long must the employer wait before requiring the employee to provide an  updated medical certification?

Answer #4:  The employer may not require recertification more often than every 30 calendar days.  If the original certification is for more than 30 days, the employer must wait until the initial certification period has passed.  E.g., if the health care provider initially certifies the employee will be incapacitated for 60 days, the employer must wait until after 60 days.  A change in circumstances, however, permits the employer to require recertification sooner (29 CFR § 825.308).

Question #5:  Company policy requires the employee on unpaid leave to pay a portion of the medical premium to maintain health insurance coverage during FMLA leave.  How long must an employee have to make up a delinquent payment?

Answer #5:  Under 29 CFR § 825.210, the employer may institute a payment system for unpaid leave; the options are:

□ The same time the payroll deduction would have been made;
□ The same as the COBRA schedule;
□  Payment (at the employee’s option) under a cafeteria plan;
□  The same as other unpaid leaves, provided the rules do not require prepayment; or
□  Any other system voluntarily agreed to by the employer and employee.

The employee has up to 30 calendar days to make up a delinquent medical premium payment (29 CFR § 825.212).  The employer’s FMLA designation notice to the employee must set forth the payment systems and the consequences for failure to make a timely payment (29 CFR § 825.301).

Question #6:  An employee on FMLA leave fails to make up a delinquent medical insurance payment.  When must the employer provide the employee with written notice to cancel coverage?

Answer #6:  The employer must provide the employee with written notice explaining that if the employee does not make the delinquent medical premium payment, the employer will cancel the employee’s coverage.  The employer must send this notice at least 15 calendar days before it intends to cancel coverage.  If the notice is not sent, the employer cannot cancel coverage; however, it may collect the delinquent premiums when the employee returns to work.  (Note: State laws may apply on collection of employee benefits (29 CFR § 825.212)).  The employer can cancel coverage retroactively if it has a uniformly applied policy of retroactively canceling coverage if an employee fails to make the payment for all non-paid leaves and the employer has sent the 15-day notice.

Question #7:  The employer requires an employee on FMLA leave for his/her own serious health condition to provide a fitness-for-duty medical certification before returning to work.  How long must the employee have to provide the certification?  (Assume no mitigating circumstances exist.)

Answer #7:  The employer should notify the employee of the fitness-for-duty requirement when it specifically designates the leave as FMLA leave.  The employee must then present the fitness-for-duty certificate on the day the employee returns to work (29 CFR §§ 825.310 and 825.311).

Question #8:  An impairment qualifies as a “serious health condition” in several ways.  For each type of impairment, how long must the period of incapacity be?

Answer #8:  FMLA (29 CFR § 825.114) has several different categories of serious health condition:

(a)    An overnight stay in a medical facility qualifies as inpatient care;

(b)   More than three consecutive calendar days of incapacity, plus two treatments (or one treatment followed by a regimen of continuing treatment) by a health care provider;

(c)    Any period of incapacity due to pregnancy or prenatal care; or

(d)   A chronic condition, a permanent or long-term condition, or a condition requiring multiple treatments:  An employee in this category qualifies for intermittent leave.  FMLA has no limit on the size of the increment for intermittent leave.  The employer, however, may limit leave increments to the shortest period of time that the employer’s payroll system uses to account for a benefit or use of leave, provided it is one hour or less  (29 CFR § 825.203(d)).

Question #9:  The employer’s policy is not to continue non-medical benefits during an FMLA leave.  An employee returns from FMLA leave on May 26.  How long does the employer have to reinstate the employee’s non-medical benefits that the employer did not continue during FMLA leave?

Answer #9:  The employer must reinstate the employee’s non-medical benefits immediately upon the employee’s return to work from FMLA leave (29 CFR  §§ 825.214 and 215).  If the employer canceled the employee’s medical coverage due to failure to make the premium payment (see Question  #6), it must also immediately reinstate the medical benefits.

Question #10:  In the FMLA regulations, what is the maximum number of days an employer may retroactively designate leave as FMLA leave?  (Note: FMLA requires a specific time period, plus three very limited exceptions.)

Answer #10:  In general, the employer may not designate FMLA retroactively for more than two business days.  Three exceptions, however, may apply:

1. If the employer doesn’t learn of the need for FMLA leave until after the leave has begun, the employer may retroactively designate FMLA leave to the date of the qualifying event (29 CFR § 825.208(d)).  For example, if an employee suffers an injury while on paid vacation, the employer may retroactively designate the time commencing with the date of injury as FMLA leave.
2. If the employer does not know the reason for an absence, and the employee notifies the employer of an FMLA-covered reason within two business days after returning to work, then the employer may retroactively designate the leave as FMLA (29 CFR § 825.208(e)(1)).
3. If the employer has made a preliminary designation of FMLA leave, conditioned upon providing timely medical certification, the employer’s preliminary designation becomes final when the employee provides the timely certification (29 CFR § 825.208(e)(2)).

Were you surprised by any of these answers?  The FMLA is very complicated, so be sure to obtain clarification or advice if you have questions about a specific situation.

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