Am I eligible for family leave?
Is leave paid?
What are the benefits?
Do I return to the same job?
What notice must I give before taking leave?
What notice does my employer
have to give me?
What is a serious health
Do I have to get a
What does the doctor have to
employer get second and third opinions?
Do I have to update my
Do I have to take a
fitness for duty exam when I on return?
What are my rights and
- signed into law in 1993 by President
- enacted so that employees of larger
employers could get time off work to attend to serious family
illnesses, child birth and adoption without losing their
- before the FMLA, employers did not
have to provide employees with any leave, for illness or
childbirth. Although many employers did, they did not have
to return you to your same job.
eligible for family leave?
To be eligible:
- You must work for an employer with
50 or more employees in the current or preceding year;
- You must have been employed at least
12 months and who worked in excess of 1,250 hours in the previous
12 month period
- You get up to 12 weeks of leave
during any 12 month period;
- The birth of your child, whether
you are the mother or father;
- The placement of a child with you
for adoption or foster care.
- To care for a spouse, child, or
parent who has a serious health condition.
- To care for your own serious
- No. You can, however, use vacation
or sick time. Your employer can also require you to use
vacation and can, at its option, make it a paid or partially paid
leave if it wants to.
are the benefits?
- Your employer must continue your
coverage under its health insurance plan;
- You must pay your share of the
premium (if any) during the leave.
- If you do not make timely payments
of your share of the health care premiums, your employer does not
have to maintain health insurance after you are more than 30 days
late with your premium payment.
return to the same job?
- Key employees (employees in the top
10 of the employer's earners) do not have the right to return to
their old jobs if "substantial and grievous injury results to
employer to do so"
- Other employees must be returned to
same or equivalent position, with the same pay and benefits.
- After a leave, the employer must
restore you to the position you held when the leave began,
or to an equivalent position, with equivalent employment benefits,
pay, and other terms and conditions of employment. The term
'equivalent' does not mean merely 'comparable' or 'similar.'
Instead, it requires a correspondence to the duties and all other
terms, conditions, and privileges of the employee's previous
- However, upon your return you have
no greater right to reinstatement or to other benefits than if you
had been continuously employed during the leave. For example, if
you would have been laid off during your leave, you get to return
to work only when your employer recalls you from the layoff.
notice must I give before taking leave?
- You must give at least 30 days
notice before leave, if possible.
- If this is not possible, you must
give notice as is practicable.
- You do not have to ask for FMLA
leave by name. However, you need to tell your employer
enough to know that the reason you need leave is covered by the
- The burden is on the employer to
figure out whether a leave request is a request for an FMLA-qualified
- An employee who does not notify the
employer of the need for FMLA leave cannot later claim that the
employer denied him or her his or her rights under the Act.
notice must my employer give me before charging time off from work
against my FMLA time?
- First, if you have an employee
handbook or any other written policies concerning employee
benefits or leave rights, your employer must include information
about the FMLA with it.
- The handbook must explain the
employer's general policy regarding any requirement for
fitness-for-duty certification to return to work and requirements
to use up vacation while on leave.
- The employer's obligation is not
just to have a written statement of FMLA rights, but also of the
employer's own policy with regard to the FMLA.
- If addition, your employer must give
you written guidance about all of your rights and obligations
under the FMLA whenever an you ask for leave under the FMLA or the
employer intends to charge you for your leave.
- If an employer's policies so
provide, the notice must include, as appropriate, the following:
- that the leave will be counted
against their annual FMLA leave entitlement;
- any requirements for the employee
to furnish medical certification of a serious health condition
and the consequences of failing to do so;
- the employee's right to substitute
paid leave and whether the employer will require substitution
and the conditions related to it;
- any requirement to maintain health
- any requirement to present a
fitness-for-duty certificate upon returning to work;
- their status as 'key employee' and
potential for not being restored to work after a leave;
- right to restoration; and
- potential liability for employee's
share of health premiums if one doesn't return to work.
is "intermittent" leave?
- Intermittent leave is time off from
work on an occasional basis, as opposed to entire days at a time.
Your doctor must certify that you need to take occasional time off
in order to qualify for it.
- You can qualify for intermittent
leave where your or your family member's condition is intermittent
and where your are needed only intermittently. This could
be the case, for example, where other care is normally available
or where responsibilities are shared with other family members or
third parties, but you have to be available in emergencies.
- Intermittent or reduced schedule
leave may be taken for:
- planned medical treatment that is
- unanticipated medical treatment
that is medically necessary;
- recovery from treatment;
- recovery from a serious health
- providing care or psychological
comfort to an immediate family member with a serious health
is a serious health condition?
- A 'serious health condition' is an
illness, injury, impairment, or physical or mental condition that
involves inpatient care in a hospital, hospice, or residential
medical care facility, or continuing treatment by a health care
- A serious health condition covers
conditions or illnesses that cause you or a family member to be
absent from work on a recurring basis for more than a few days for
treatment or recovery.
- The standard for your own serious
health condition is higher than that for a family member's serious
health condition. Specifically, you may take leave to care
for a family member who merely has a serious health condition.
Your own health condition must be such that you are unable to
perform the functions of your position.
I have to give a doctor's excuse?
- Yes, if your employer's FMLA policy
says you have to give one.
- Employers must ask employees to
submit a completed and signed health care provider certification.
- Certification may be required at
start of leave, during leave, and upon your return after leave.
- An employer must allow an employee
at least 15 days to obtain a certification after making a request
for certification. An employer must give notice of a requirement
for medical certification each time a certification is required.
does the doctor's certification have to say?
- An employer may ask for a
certification that states:
- the date on which the serious
health condition began;
- its probable duration;
- the appropriate medical facts
within the knowledge of the health care provider regarding the
- that the employee is needed to
care for a son, daughter, parent, or spouse, with an estimate of
the amount of time that the care will require.
- In the case of intermittent leave or
leave on a reduced schedule, your employer can also require your
doctor to state:
- in the case of leave for planned
medical treatment, the dates on which the treatment is expected
to be given and the treatment's duration;
- in the case of leave for an
employee's own serious health condition, a statement of the
medical necessity for an intermittent or reduced schedule leave;
- in the case of leave for family
members, a statement that this type of leave is necessary for
the care of the family member, or will assist in their recovery,
and the expected duration and schedule of the intermittent or
reduced schedule leave.
- In most cases, the employer should
request a certification when the employee gives notice of a need
for the leave or within two business days of that notice. In the
case of an unforeseen leave, the request should be made within two
business days of the start of the leave. An employer may request
certification at a later date if it later has some reason to
question the leave's appropriateness or duration.
- The requirement to provide a
certification must be in writing and also must state the
consequences of failing to submit the certification. Thus, where
an employer had not yet amended its employee handbook to include
FMLA requirements, an employee was improperly terminated for
failure to provide the certification where the request was made
orally only and she was not informed that she would be terminated
for failure to supply the certification.
- If the employer finds a
certification incomplete, it must so advise the employee and allow
him a reasonable opportunity to fix any deficiency. The 'timely
manner' requirement means that certification must be provided,
when possible, in advance or at the start of the leave. If the
need for the leave does not permit this timing, certification
should be provided reasonably soon after the leave begins.
- An employer may not request
additional information from the employee's health care provider.
However, a health care provider representing the employer may
contact the employee's provider, with the employee's permission,
for the sole purposes of clarification and authentication of the
certification. If an employee is on FMLA leave concurrently with a
workers' compensation absence and the applicable workers'
compensation statute permits an employer or its representative to
have direct contact with the employee's provider, the employer may
follow the workers' compensation procedures.
my employer get a second or third opinion?
- If your employer has reason to doubt
the validity of the certification, it may require, at its expense,
the opinion of a second health care provider, so long as the
health care provider is not regularly employed by the employer.
- Once you submit a completed
certification, your employer may not request additional
information from the doctor who gave that certification, but may
require a second opinion at the its expense.
- Unlike the written request required
for the first certification, an employer's request for a second
(or third) certification need only be made verbally. If an
employer is located in an area where access to health care is
extremely limited, it may regularly utilize the services of a
provider for second opinions.
- If the second opinion differs from
the first opinion, the employer may require, at its own expense,
the opinion of a third health care provider, designated or
approved jointly by the employer and employee.
- The third health care provider's
opinion is final and binding on the employer and employee. The
employer and the employee must act in good faith in agreeing on a
third opinion provider. In case either fails to act in good faith,
they are bound by the earlier opinion--the first health care
provider if the employer does not act in good faith or the second
health care provider if the employee acts unreasonably.
- An employer must provide a copy of
any second or third opinions to the employee on the employee's
request. These must be provided within two business days unless
there are extenuating circumstances.
I have to update my certification?
- Your employer can require you to
obtain subsequent recertifications on a reasonable basis. The
frequency of recertification depends on the nature of the leave
and on other circumstances. Specifically, an employer may require
- pregnancy, chronic, or
permanent/long- term conditions under continuing supervision of
a health care provider no more frequently than every 30 days and
only in connection with an employee's absence, unless
circumstances have changed significantly or the employer
receives information casting doubt on the reason for the
- a leave that had been certified by
a health care provider as having a minimum duration in excess of
30 days and that time period has expired, unless one of the
conditions described in (4) below are met;
- intermittent and reduced schedule
leave no more frequently than the minimum time period specified
on the certification as needed for the leave, unless one of the
conditions described in (4) are met; or
- any other condition at any
reasonable interval, but no more frequently than every 30 days
unless the employee requests an extension, circumstances have
changed significantly such as with regards to the illness's
duration or nature or complications, or the employer receives
information casting doubt on the reason for the employee's
- The employee must respond to the
recertification request within the time frame suggested by the
employer, which must allow at least 15 calendar days from the
date of the request, unless it is not practicable to do so
despite the employee's diligent, good-faith efforts. The costs
of recertifications are the employee's obligation, unless the
employer provides otherwise. However, an employer may not
request second or third opinions.
I have to take a fitness for duty exam when I return to work?
- Yes, so long as your employer gives
you an additional, specific notice that it requires a
fitness-for-duty certification either at the time leave is
requested or immediately after leave commences and your
employer is advised of the medical circumstances requiring the
leave. However, no notice is required if your condition changes
from one that did not previously require certification.
- The only fitness for duty exam that
you must pass is one by your own doctor. Your employer must
accept your fitness for duty certification and cannot require a
second or third opinion.
are my rights and remedies if my employer violates the FMLA?
- You can file a complaint with the
Department of Labor, which will investigate and, if appropriate,
pursue your FMLA claim for you.
- You can also go to court on your own
and file a civil lawsuit. If you win, you can recover:
- lost pay and benefits plus
interest, or the cost of providing care to a seriously ill
family member, plus interest. These are your
- a penalty equal to twice the
amount of your economic damages;
- reinstatement, promotion, or an
injunction against you from returning to your job; and
- attorneys fees, expert witness
fees and court costs.