FMLA Leave: Guidance for Employers and Employees



Maintained

by Betsy Johnson, Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

This practice note provides guidance on the myriad issues and obligations that face employers under the Family and Medical Leave Act (FMLA). This practice note also explains the employee's duties under the FMLA.

Specifically, this practice note discusses:

For a full listing of key content covering leaves for employees, see Leaves for Employees Resource Kit.

For in-depth guidance on FMLA claims and litigation strategies, see Family and Medical Leave Act (FMLA) Litigation Defense Strategies and Family and Medical Leave Act (FMLA) Claims Defense Checklist.

For additional information on the FMLA, see the Family and Medical Leave practice note page and the Family and Medical Leave forms page. For more information on FMLA requirements, see Employer's Guide to the Fam. And Med. Leave Act, §§ 3.1–3.10. See also the U.S. Department of Labor's (DOL) Employer's Guide to the Family and Medical Leave Act. For an FMLA administration and audit checklist, see Family and Medical Leave Act Administration and Audit Checklist. For information on state family and medical leave laws, see the "Family, Medical, Sick, Pregnancy, and Military Leave" column of Attendance, Leaves, and Disabilities State Practice Notes Chart.

For a presentation to educate employees, supervisors, and HR personnel about the requirements of the Family Medical Leave Act, see FMLA Guidance for Employers: Training Presentation. For a treatise on the FMLA, see Family and Medical Leave Act § 1.01. For checklists, forms, opinions letters, see Family and Medical Leave Act § 16.01–16.09.

For tracking of recent agency guidance on employer's obligations under the FMLA and other key federal, state, and local Labor & Employment legal developments, see Labor & Employment Key Legal Developments Tracker (Current).

For a full listing of key content covering departing employees, see Departing Employees Resource Kit.

To compare state and federal laws on family and medical leave, see the Leave Law topic in the Labor & Employment State Law Comparison Tool.

FMLA Leave: Employer Coverage, Employee Eligibility, and Qualifying Bases

This section explores the requirements and some of the nuances of employer coverage, employee eligibility, and under what circumstances an employee qualifies for protected FMLA leave.

Covered Employers

As a threshold matter, you must first determine if the FMLA covers an employer. Generally, with two exceptions regarding the threshold number of employees noted below, the FMLA covers private employers if they employ 50 or more employees within 75 miles of the worksite for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year. 29 U.S.C. § 2611(2)(B)(ii), (4); 29 C.F.R. §§ 825.104(a), 825.102. The 20 weeks need not be consecutive. 29 C.F.R. § 825.105(e). As a practical matter, an employer may be deemed a "covered" employer in the current year even though it currently employs less than 50 employs if it employed 50 or more employees in the prior year for 20 or more calendar workweeks. The count of employees within 75 miles of a worksite includes employees who telework and report to or receive assignments from that worksite. See WHD Field Assistance Bulletin No. 2023-1.

Because the FMLA defines "employer" broadly to include "any person acting, directly or indirectly, in the interest of a covered employer . . . " (29 U.S.C. § 2611(4)(a)(ii)(I); 29 C.F.R. § 825.104(a), (d)), corporate officers and supervisors may be personally liable for FMLA violations for refusing to grant leave or failing to reinstate the employee to their prior position at the expiration of the leave period.

For purposes of determining FMLA applicability, full-time and part-time employees are considered to be employed for each working day of a calendar workweek as long as they are on the payroll for the entire week. 29 C.F.R. § 825.105(b), (c). You should also count employees on a leave of absence or who have been suspended if a reasonable expectation exists that they will return to work. 29 C.F.R. § 825.105(c). When in doubt, count them. An employer remains covered until it no longer employs 50 or more employees for 20 calendar weeks in both the current and preceding calendar years. 29 C.F.R. § 825.105(f).

Exceptions to the 50-Employee Threshold Rule

Private and public elementary and secondary schools (not including educational institutions such as colleges, universities, and preschools) are deemed covered employers regardless of the number of employees employed. 29 U.S.C. § 2618(a)(1). The FMLA also covers public agencies irrespective of how many employees they have. 29 U.S.C. § 2611(4)(A)(iii), (B). Public agencies include federal and state governments, political subdivisions of a state, and any interstate governmental agencies. 29 U.S.C. § 2611(4)(A)(iii); 29 U.S.C. § 203(x).

Joint Employer Relationships in Determining FMLA Coverage

In some cases, employees of separate employers may count towards the 50-employee minimum requirement to constitute a covered employer. 29 C.F.R. § 825.106(a). Although joint employers are distinct entities, each exercises control over a particular employee's work or working conditions. Id.

Courts will look at the totality of several factors to determine whether two or more employers jointly employ an employee. 29 C.F.R. § 825.106(b)(1). These factors include:

  • •Whether the employers arrange to share the employee's services or to exchange employees
  • •Whether one employer acts in the interest of the other employer(s) with respect to the employee –and–
  • •Whether the employers may be deemed to share control of the employee, directly or indirectly, because one employer controls, is controlled by, or is under common control with the other employer(s)

29 C.F.R. § 825.106(a)–(b). In counting employees to determine employer coverage and employee eligibility, you should count all employees jointly employed by two or more employers. However, only the employee's primary employer bears responsibility for giving the employee notice, providing leave, and maintaining health benefits. 29 C.F.R. § 825.106(c).

Separate entities may be so interrelated that they comprise a single employer for FMLA purposes if they meet the FMLA's integrated employer test. 29 C.F.R. § 825.104(c)(2). Employees of all entities that make up an integrated employer will count in determining employer coverage and employee eligibility. Id.

Courts will look to the totality of several factors:

  • •Common management
  • •Interrelation between operations
  • •Centralized control of labor relations –and–
  • •Degree of common ownership / financial control

Id. If unclear, you should err on the side of over-inclusiveness.

For information on joint employment relationships, see Joint Employment Relationships: Best Practices and Risks. For more information on covered employers, see Family and Medical Leave Act § 4.01.

Employee Eligibility

An employee is not eligible for an FMLA-protected leave unless the employee works for an FMLA-covered employer. 29 C.F.R. § 825.110(a). The employee must also:

  • •Have been employed for at least 12 months
  • •Have worked at least 1,250 hours in the 12 months preceding the leave request –and–
  • •Work at a worksite where the employer employs at least 50 employees within 75 miles

Id. The employee's months of service are determined at the time that the employee's leave is scheduled to begin and not at the time of the leave request. 29 C.F.R. § 825.110(a)(2). While the 12 months of service need not be consecutive, the employer does not need to count weeks of service prior to a break in service that lasted seven years or more, unless the break in service occurred due to either a USERRA-protected military leave or a written agreement indicating the employer's intent to rehire the employee after the break. 29 C.F.R. § 825.110(b). If the employer voluntarily chooses to count weeks of service prior to a break that lasted seven years or longer, it must do so uniformly for all employees with similar breaks in service. 29 C.F.R. § 825.110(b)(4). To avoid this possible pitfall, it is best that the employer not count for any employee weeks of services that occurred before a break in service that lasted seven years or more.

Keep in mind that if an employee is maintained on the payroll for any part of a week, including any periods of paid or unpaid leave (e.g., sick time or vacation time) during which the employer provides other benefits, that entire week counts as a week of employment. 29 C.F.R. § 825.110(3). The fact that an employee is not physically present does not mean that the employee is not present for purposes of FMLA eligibility.

Employers should count hours towards the 1,250 hour minimum if they qualify as "compensable" hours for FLSA purposes. 29 C.F.R. § 825.110(c). If no accurate records exist of hours worked, as is likely the case for FLSA-exempt employees, the employer bears the burden of establishing that the employee did not satisfy the 1,250-hour requirement. 29 C.F.R. § 825.110(c)(3). Specifically, with respect to teachers, the regulations require that an employer "clearly demonstrate" that a full-time teacher has not worked 1,250 hours in the previous 12 months. Id. As a practical matter, if a nonexempt employee works at least 25 hours each week, the employee will likely meet the hour requirement. Similarly, if an exempt employee works the first three days of every week, a court will likely conclude that the employee has satisfied the hours requirement.

To determine whether the employee works at a worksite where at least 50 employees are employed within 75 miles, you must calculate the distance using the shortest available route on public roads and waterways. 29 C.F.R. § 825.111(b). You must count all employees on the payroll at the time the employee gives notice of the need for the leave. 29 C.F.R. §§ 825.111(c), 825.110(e). The fact that the numbers may decrease the next day due to a scheduled reduction in force is immaterial, as an employee's eligibility to continue, an ongoing leave is not affected if the number of employees falls below 50. 29 C.F.R. § 825.110(e). When an employee works from home or otherwise teleworks, their worksite for FMLA eligibility purposes is the office to which they report or from which their assignments are made. See WHD Field Assistance Bulletin No. 2023-1.

For more information on employee eligibility, Family and Medical Leave Act § 5.01.

Qualifying Bases for FMLA Leaves

The FMLA provides for job-protected leave for the following reasons:

  • •For birth of a son or daughter, and to care for the newborn child
  • •For placement with the employee of a son or daughter for adoption or foster care
  • •To care for the employee's spouse, son, daughter, or parent with a serious health condition
  • •Because of a serious health condition that makes the employee unable to perform the functions of the employee's job
  • •Because of any qualifying exigency arising out of the fact that the employee's spouse, son, daughter, or parent is a military member on covered active duty (or has been notified of an impending call or order to covered active duty status) –and–
  • •To care for a covered servicemember with a serious injury or illness if the employee is the spouse, son, daughter, parent, or next of kin of the covered servicemember

29 U.S.C. § 2612(1), (3); 29 C.F.R. § 825.112(a). The qualifying bases for FMLA leave are discussed in detail below.

The Birth and Care of the Employee's Newborn Child

An employee can take up to 12 weeks of unpaid leave during a single 12-month period for the birth of a child or to care for a newborn after birth (who does not have a serious health condition). 29 U.S.C. § 2612(a)(1)(A); 29 C.F.R. §§ 825.112(a)(1), 825.120(a)(2). (See the exception below regarding duration of leave for married parents who work for the same employer under 29 C.F.R. § 825.120(a)(6).) Eligibility for this leave expires one year from the baby's birth. 29 C.F.R. § 825.120(a)(2).

If both parents (who are married) work for the same employer, the maximum leave allowed for both parents is 12 weeks. 29 U.S.C. § 2612(f); 29 C.F.R. § 825.120(a)(3). For example, if the employee takes the full 12 weeks of FMLA leave for the birth of the child, then the other spouse is ineligible to take any FMLA time to care for the newborn after birth. This restriction concerning the maximum leave time for each parent does not apply to unmarried parents who work for the same employer. 29 U.S.C. § 2612(f); 29 C.F.R. § 825.120(a)(3).

Placement of a Child with the Employee for Adoption or Foster Care

An employee may take up to 12 weeks of unpaid leave during a single 12-month period to bond with a child after the placement of a child with the employee for adoption or foster care. 29 U.S.C. § 2612(a)(1)(B); 29 C.F.R. §§ 825.112(a)(2), 825.121(a). (See the exception below regarding duration of leave for married parents who work for the same employer under 29 C.F.R. § 825.121(a)(3).) An employee may also take leave before the placement or adoption if the employee must take time off for the placement or adoption to proceed, such as to attend a required court appearance or counseling session. 29 C.F.R. § 825.121(a)(1). An employee's eligibility for this leave expires one year following the placement or adoption. 29 C.F.R. § 825.121(a)(2).

As with leave to care for a newborn child, if both married parents work for the same employer, they will be limited to a combined total of 12 weeks for this type of leave. 29 U.S.C. § 2612(f); 29 C.F.R. § 825.121(a)(3). Unmarried parents may each take off 12 weeks separately for this type of leave. Id.

To Care for the Employee's Spouse, Child, or Parent with a Serious Health Condition

An employee may take up to 12 weeks of unpaid leave during a single 12-month period to care for a spouse, child, or parent with a serious health condition as that phrase is defined below. 29 U.S.C. § 2612(a)(1)(C); 29 C.F.R. §§ 825.112(a)(3), 825.124. (See the exception below regarding duration of leave for spouses who are married and work for the same employer and who request time off for taking care of a parent under 29 U.S.C. § 2612(f)(1)(B) and 29 C.F.R. § 825.201(b).)

Spouse

The FMLA defines "spouse" as the person to whom an individual is married as defined or recognized under state law in which the parties married or, in the case of a marriage that occurred outside of any state, if the marriage was valid in the place in which it took place and could have been entered into in at least one state. 29 U.S.C. § 2611(13); 29 C.F.R. § 825.102. Thus, the definition of spouse includes a spouse of an employee who is in a same-sex marriage, provided the marriage is valid based on the law of the place of marriage (including locations abroad) and regardless of whether the state in which they reside recognizes their marriage. 29 C.F.R. § 825.102. The definition of spouse does not include registered domestic partners.

Child

Children include a biological, adopted, or foster child; a stepchild; a legal ward; or a child of a person standing in loco parentis. 29 U.S.C. § 2611(12); 29 C.F.R. § 825.102. "In loco parentis" means someone who assumes the role of caring for the child, even if no legal or biological relationship exists between them. 29 C.F.R. § 825.122(d)(3). See U.S. Department of Labor, Wage and Hour Division, Fact Sheet #28C and U.S. Department of Labor, Wage and Hour Division, Administrator's Interpretation No. 2010-3. The FMLA does not limit the number of parents a child can have. Similarly, a "parent" includes a biological, adoptive, step, or foster father or mother, or any other person who stood in loco parentis to the employee when the employee was a child. 29 C.F.R. § 825.122(c). In-laws are not included. Id.

Care For

Courts interpret the "to care for" requirement broadly. An employee can easily satisfy this standard if the employee has an eligible family member with a serious health condition. 29 C.F.R. § 825.124(a). Employees may take leave to take care of a family member's medical or nutritional needs, to arrange changes in a family member's care, or to drive a family member to the doctor. 29 C.F.R. § 825.124(a)–(b). Employees may also take leave to offer psychological comfort to a family member already receiving care at a hospital. 29 C.F.R. § 825.124(a). An employee does not have to show that there are no other caregivers available at the time of the leave request. 29 C.F.R. § 825.124(b).

Child's Serious Health Condition

Special Rules for Spouses Working for the Same Employer

If married parents work for the same employer, they are limited to a combined total of 12 weeks for taking care of a parent with a serious health condition. 29 U.S.C. § 2612(f)(1)(B); 29 C.F.R. §§ 825.112(a)(3), 825.200(a)(3), 825.201. See U.S. Department of Labor, Wage and Hour Division, Fact Sheet #28L. However, if each married parent working for the same employer takes FMLA leave to take care of a spouse or a child with a serious health condition, then each married parent may individually take up to 12 weeks of FMLA leave. Note that for FMLA-eligible leaves besides (1) taking care of a parent with a serious health condition, (2) the birth of a child, or (3) the foster care placement or adoption of a child, each married parent working for the same employer may individually take up to 12 weeks of FMLA leave. 29 U.S.C. § 2612(f)(1); 29 C.F.R. § 825.201(b).

For the Employee's Own Serious Health Condition That Makes the Employee Unable to Perform the Essential Functions of the Employee's Job

An employee may take up to 12 weeks of unpaid leave during a single 12-month period for their own serious health condition if the employee cannot perform their essential job duties. 29 U.S.C. § 2612(a)(1)(D). A "serious health condition" means any illness, injury, impairment, or physical or mental condition involving either inpatient care or continuing treatment by a healthcare provider. 29 U.S.C. § 2611(11); 29 C.F.R. § 825.113(a). For information on mental health conditions and psychiatric disabilities in the workplace, see Mental Health Issues at Work.

Although the FMLA requires that an employee have an "illness, injury, impairment or physical or medical condition" (29 U.S.C. § 2611(11); 29 C.F.R. §§ 825.102, 825.113(a)), the FMLA did not intend to include ordinary or everyday conditions as serious health conditions. For example, the FMLA regulations specifically state that unless complications occur, the common cold, flu, ear aches, upset stomach, minor ulcers, non-migraine headaches, routine dental or orthodontia problems, periodontal disease, and similar ailments do not constitute serious health conditions for purposes of requesting leave under the FMLA. 29 C.F.R. § 825.113(d). Also, conditions related to cosmetic treatments (without inpatient care or complications) do not constitute serious health conditions. Id.

To be eligible for a leave for a serious health condition, the employee must also be unable to work at all or be unable to perform any one of the essential functions of the employee's job within the meaning of the ADA. 29 C.F.R. § 825.123(a). Therefore, if the employer requires the employee to submit a medical certification form, you should advise the employer to provide—in addition to the blank certification form—a copy of the employee's job description listing the essential functions of the position. See 29 C.F.R. § 825.123(b). An employee who misses work to receive treatment for a serious health condition is considered unable to perform the essential functions of their job. 29 C.F.R. § 825.123(a).

For information on ADA and disability management, see ADA and Disability Management practice notes page. See also ADA and FMLA Comparison Chart.

Conditions Involving Inpatient Care

An employee may take leave for a condition requiring "inpatient care" (defined as an overnight stay at a hospital, hospice, or residential medical care facility) and for any related incapacity or subsequent treatment. 29 C.F.R. §§ 825.113(a), 825.114. For FMLA purposes, incapacity is the inability to work, attend school, or perform other regular daily activities. 29 C.F.R. § 825.113(b).

Conditions Involving Continuing Treatment by a Healthcare Provider

To determine what qualifies as a condition with "continuing treatment," you must first look to the nature of the condition. The FMLA regulations divide qualifying conditions into the following five categories:

  • (1) Conditions involving incapacity and treatment
  • (2) Pregnancy or prenatal care
  • (3) Chronic conditions
  • (4) Permanent or long-term conditions –and–
  • (5) Conditions requiring multiple treatments

29 C.F.R. §§ 825.102, 825.113(a), 825.115.

Conditions involving incapacity and treatment. Conditions of any kind could fall under this heading provided that the required incapacity exists, and the employee receives treatment. To qualify, the employee must experience incapacity that initially lasts more than three consecutive calendar days. 29 C.F.R. §§ 825.102, 825.115(a). The employee must also have been (1) treated at least two times by a healthcare provider within 30 days of the first day of incapacity or (2) treated by a healthcare provider at least one time resulting in a regimen of continuing treatment supervised by a healthcare provider. Id. An employee may also take leave for any subsequent treatment or incapacity related to the same condition. Id. Qualifying treatment includes diagnostic examinations, but not routine physical examinations, eye examinations, or dental examinations. 29 C.F.R. § 825.113(c). Continuing treatment may constitute a course of prescription drugs or therapy to alleviate the condition. Id. The use of over-the-counter drugs without seeing a healthcare provider is not, by itself, continuing treatment. Id.

Pregnancy and prenatal care. An employee may be eligible for an FMLA leave for pregnancy-related incapacity or for prenatal care. 29 C.F.R. §§ 825.102, 825.120. The employee can take leave if the employee cannot work due to the pregnancy even if the employee does not receive treatment by a healthcare provider during the absence and even if the incapacity does not last three days. 29 C.F.R. § 825.120(a)(4).

Additionally, where applicable state disability laws set forth a specific period of disability for pregnancy, an employee is considered to have a serious health condition under the FMLA. 29 C.F.R. § 825.120(a)(3). For state laws on pregnancy leave, see the "Family, Medical, Sick, Pregnancy, and Military Leave" column of Attendance, Leaves, and Disabilities State Practice Notes Chart.

Chronic conditions. An employee may take leave for incapacity due to a chronic condition (such as asthma, diabetes, and epilepsy) if the employee receives periodic (at least twice a year) treatment visits. 29 C.F.R. §§ 825.102, 825.115(c). An employee is eligible for a leave for such a chronic condition even if a healthcare provider does not treat the employee during the leave. 29 C.F.R. § 825.102.

Permanent or long-term conditions. An employee may also take a leave for incapacity caused by permanent or long-term conditions. 29 C.F.R. §§ 825.102, 825.115(d). Conditions falling under this heading include those for which treatment may not necessarily be effective. Id. As a result, although a healthcare provider must generally be treating the employee for the condition, the healthcare provider need not treat the employee during the leave. Id. Terminal illness, a severe stroke, and Alzheimer's disease exemplify such eligible conditions. Id.

Conditions requiring multiple treatments. An employee may also take leave for a condition requiring multiple treatments. 29 C.F.R. §§ 825.102, 825.115(e). For example, an employee qualifies for a leave if the employee receives multiple treatments for (or is recovering from treatment of) a condition requiring restorative surgery due to an accident or injury. 29 C.F.R. §§ 825.102, 825.115(e)(1). An employee may also take leave for treatment of a condition that would likely result in an incapacity of more than three consecutive calendar days in the absence of medical intervention or treatment, such as cancer or kidney disease. 29 C.F.R. §§ 825.102, 825.115(e)(2).

Substance Abuse

Substance abuse may qualify as a serious health condition if it otherwise meets the definitions above. 29 C.F.R. § 825.119(a). However, while an employee may take leave for treatment of substance abuse, the employee may not take leave for reasons related to the employee's substance use, such as incarceration for a DUI. Id

Organ Donation

An employee who volunteers to donate an organ may qualify for FMLA leave due to a serious health condition if the organ donation involves either inpatient care or continuing treatment. See Wage and Hour Division (WHD) opinion letter FMLA2018-2-A (Aug. 28, 2018). For state laws on organ donation leave, see the "Other Leaves" column of Attendance, Leaves, and Disabilities State Practice Notes Chart.

FMLA Military Leave Provisions

Eligible employees may qualify for two types of FMLA leaves relating to a family member's military service. 29 C.F.R. § 825.112(a)(5)–(6). The two FMLA military leaves are qualifying exigency leave and military caregiver leave (29 U.S.C. § 2612(a)(1)(E), (3)), both of which are described below. For additional information on FMLA military leave, see FMLA Military Leave Provisions Including Employer Coverage and Employee Eligibility and Military Leave Certification Rules under the FMLA and USERRA. For state laws on military leave, see the "Family, Medical, Sick, Pregnancy, and Military Leave" column of Attendance, Leaves, and Disabilities State Practice Notes Chart.

Qualifying Exigency Leave

An eligible employee may take up to 12 weeks of unpaid FMLA leave during a single 12-month period for a qualifying exigency provided that the employee has a spouse, child, or parent who is a member of the regular armed forces (i.e., the Army, Navy, Air Force, Marine Corps, or Coast Guard) and is either on "covered active duty" or has been notified of an impending "call to covered active duty status." 29 U.S.C. § 2612(a)(1)(E); 29 C.F.R. § 825.126.

Covered active duty status, or call to covered active duty status in the case of a member of the regular armed forces, means duty during the member's deployment with the armed services to a foreign country, including deployment to international waters. 29 C.F.R. § 825.126(a). For purposes of "covered active duty" or "call to covered active duty status," the reserve components of the armed forces include the Army National Guard of the United States, Army Reserve, Navy Reserve, Marine Corps Reserve, Air National Guard, Air Force Reserve, and Coast Guard Reserve as well as retired members of the regular armed forces called up in support of a contingency operation. 29 C.F.R. § 825.126(a)(2)(i).

An employee can take FMLA military qualifying exigency leave under the following circumstances:

  • •Short-notice deployment of the family member. To address issues arising from the short-notice deployment of the family member who has been notified of deployment seven or less calendar days from the scheduled date of deployment; such leave may be used for a period of seven days beginning on the date of notification of either an impending call or order to covered active duty. 29 C.F.R. § 825.126(b)(1).
  • •Family support or assistance programs. To attend family support or assistance programs and/or informational briefings related to the family member. 29 C.F.R. § 825.126(b)(2)(ii)
  • •Financial or legal arrangements. To make or update financial or legal arrangements related to the family member's absence. 29 C.F.R. § 825.126(b)(4)(i).
  • •Counseling. To attend counseling provided by someone other than a healthcare provider for the employee, the family member in the regular armed forces, or for their child. 29 C.F.R. § 825.126(b)(5).
  • •Rest and recuperate. To rest and recuperate with the family member in the regular armed forces for up to a maximum of 15 calendar days. 29 C.F.R. § 825.126(b)(6).
  • •Post-deployment activities. To attend post-deployment activities including attending funeral services. 29 C.F.R. § 825.126(b)(7). –or–
  • •Childcare and/ or school activities. To arrange or provide childcare and/ or attend school activities for a child of the family member in the armed services, where such is not routine and necessitated by the call to or covered active duty status of the family member in the regular armed forces. 29 C.F.R. § 825.126(b)(3).

Military Caregiver Leave

Eligible employees are entitled to up to 26 weeks of leave within a single 12-month period to care for a covered service member with a serious illness or injury. 29 U.S.C. § 2612(a)(3); 29 C.F.R. § 825.127(a).

The employee must have an eligible family member who is either:

  • •A current member of the regular armed forces who undergoes medical treatment, recuperation, or therapy, or otherwise is in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness, including preexisting injuries or illnesses that were aggravated in the line of duty
  • •A veteran undergoing medical treatment, recuperation, or therapy for a serious injury or illness
    • ○ If the family member is a veteran of the armed forces, including the National Guard or Reserves, their discharge or release from service (other than a dishonorable discharge) must have occurred at any time in the five years preceding the first date the employee takes leave to care for the veteran.

29 C.F.R. § 825.127(b). A "serious injury or illness" is not the same as a "serious health condition" used elsewhere in the FMLA. A serious injury or illness for a current servicemember is generally an injury or illness that occurred in the line of duty, or an injury or illness that was aggravated in the line of duty. 29 C.F.R. § 825.127(c)(1). In the case of a covered veteran, the serious injury or illness must be:

  • •A continuation of a serious injury or illness that the veteran incurred or aggravated when the veteran was a member of the armed forces and rendered the servicemember unable to perform the duties of the servicemember's office, grade, rank, or rating
  • •A physical or mental condition for which the veteran has received a U.S. Department of Veterans Affairs Service-Related Disability Rating (VASRD) of 50% or greater, and the need for military caregiver leave relates to that condition
  • •A physical or mental condition that substantially impairs the veteran's ability to work because of a disability or disabilities related to military service, or would do so absent treatment –or–
  • •An injury that is the basis for the veteran's enrollment in the Department of Veterans Affairs Program of Comprehensive Assistance for Family Caregivers

29 C.F.R. § 825.127(c)(2). Any of these definitions meet the FMLA's definition of a serious injury or illness for a covered veteran whether or not the injury or illness manifested before or after they became a veteran. See 29 C.F.R. § 825.127(c)(2).

FMLA Employer Rights and Obligations

This section provides guidance on how you can help employers exercise their rights and meet their obligations under the FMLA.

FMLA Posting and Policy

The employer's obligations begin with providing its employees information regarding their rights and responsibilities under the FMLA.

FMLA Poster

Employers should post general information in an employee common area (break room, near the clock where employees clock-in, etc.) advising employees of their rights under the FMLA and the procedures for filing complaints of violations with the Wage and Hour Division of the DOL. 29 C.F.R. § 825.300(a)(1).

The employer can obtain the FMLA poster from its local chamber of commerce. The FMLA poster is also currently on the DOL's website. An electronic posting of the notice suffices, so long as all employees have access to it and are informed specifically of where to find it on the company's intranet. 29 C.F.R. § 825.300(a)(1). Covered employers must post this FMLA notice even if they have no employees eligible for FMLA leave. 29 C.F.R. § 825.300(a)(2).

If the employer has and distributes an employee handbook, you should inform the employer that it must include in the handbook the FMLA poster notifying the employee of their FMLA rights. 29 C.F.R. § 825.300(a)(3).

For resources on employee handbooks, see Employee Handbook Resource Kit.

FMLA Policy

You should advise the employer that it should include its full FMLA policy in the employee handbook. 29 C.F.R. § 825.300(a)(3). If the employer does not have an employee handbook, you should advise the employer to provide employees at the time of hire a copy of the FMLA poster notifying the employee of their FMLA rights and the employer's FMLA policy. Id. The employer's FMLA policy should detail the following:

  • •What the employee must do to request FMLA leave, including who to direct the leave request to
  • •Whether medical certification is required and if so, by what date
  • •The consequences for failing to return the medical certification form
  • •The method the employer will use to calculate the leave (as discussed in the following section)
  • •How the leave will be handled by the employer, including reinstatement rights
  • •The consequences if the employee fails to return after the expiration of the 12 weeks of protected leave

See U.S. Department of Labor, Wage and Hour Division, Fact Sheet #28D. Including this level of detail in the employer's FMLA policy will help prevent FMLA interference claims in which employees allege that the employer did not provide notice to them of their FMLA rights and obligations. For information on FMLA interference claims, see Family and Medical Leave Act (FMLA) Litigation Defense Strategies.

For more information on drafting FMLA policies, see FMLA Policies: Key Drafting Tips. For a model FMLA policy, see Family and Medical Leave Policy (with Acknowledgment). For state-specific family and medical leave policies, see the "Family, Medical, Sick, Pregnancy, and Military Leave" column of Attendance, Leaves, and Disabilities State Expert Forms Chart.

FMLA Leave Entitlement Calculation

An eligible employee is entitled to 12 workweeks of protected leave in any 12-month period. 29 U.S.C. § 2612(a)(1). Employers may choose from one of several calculation methods for determining the 12-month period during which the leave may be taken. 29 C.F.R. § 825.200(b).

Calculation Methods

If the employer fails to designate in advance the method of calculating the 12 months, the employee may use the method that most benefits them. 29 C.F.R. § 825.200(e). Thus, whatever method the employer chooses, you should advise the employer to specify the method in its handbook or FMLA leave policy to avoid the allegation that either the employee was not aware of the method of calculation or the employer did not designate the method of calculation in advance. See Bachelder v. American Airlines, 259 F.3d 1112, 1127–29 (9th Cir. 2001).

The four methods of calculating the 12-month period during which the employee may take 12 workweeks of leave are as follows:

  • (1) The calendar year
  • (2) A fixed 12-month period, such as the fiscal year or the employee's anniversary date
  • (3) A 12-month period measured forward from the date the employee's first FMLA leave begins –or–
  • (4) A rolling 12-month period measured backward from the date the employee uses any FMLA leave

29 C.F.R. § 825.200(b).

Best Practices for FMLA Leave Entitlement Calculation

You should advise that the rolling 12-month period method most advantages the employer, as it looks backward from when the employee requested the leave and subtracts from the 12-week entitlement any leave that the employee has taken during the prior 12-month period. The calendar-year method benefits the employee most because an employee could take an FMLA leave for the last 12 workweeks of the current calendar year and be entitled to another 12 workweeks of FMLA leave beginning January 1 of the next calendar year.

If the employer wants to change the method of calculation, you must advise the employer that it has to provide 60 days' notice to its employees. 29 C.F.R. § 825.200(d)(1). The transition from one method to another must take place in such a way that employees retain the full benefit of 12 weeks of FMLA leave under whichever method the employer selects. Id. To avoid any possibility of a claim for interference, you should advise the employer to carefully select the calculation method initially to avoid having to change the method later. For information on FMLA interference claims, see Family and Medical Leave Act (FMLA) Litigation Defense Strategies.

Notifying Employees of Potential Eligibility for FMLA Leave

Once an employer learns that an employee may be eligible for FMLA leave, the employer must provide the employee with a notice of eligibility and rights and responsibilities. 29 C.F.R. § 825.300(b)(1). See the DOL Notice of Eligibility & Rights and Responsibilities form.

For more information on FMLA employee and employer notice and response requirements, see FMLA Employee and Employer Notice and Response Requirements Checklist. For more information on employee notice requirements, see Employee Notice Requirements section of FMLA Employee Notice Requirements and Medical Certification Obligations.

When Is the Employer on Notice of the Employee's FMLA Leave Request?

The employer is put on notice of an FMLA leave request either through the employee's specific request, or, if related to the employee's own health issues, upon receipt of sufficient information from the employee's physician suggesting that the employee's leave may qualify under the FMLA. 29 C.F.R. § 825.300(b)(1). For example, if the employee is absent from work and the employer receives a fax from the employee's physician stating that the employee is under the physician's care and will be out for a certain period of time, such a letter probably suffices to notify the employer that the leave potentially qualifies under the FMLA.

Notice of Eligibility

The employer must provide this notice within five business days of the employee's FMLA leave request. 29 C.F.R. § 825.300(b)(1). The employer may give this notice orally (29 C.F.R. § 825.300(b)(2)), but you should advise the employer to instead provide the employee written notice so as to avoid later disputes about whether the employer fulfilled its obligation.

If the employee is not eligible for FMLA leave, then the notice of eligibility must state at least one reason why the employee does not qualify along with a detailed explanation. 29 C.F.R. § 825.300(b)(2). For example, if the reason the employee is not eligible is because the employee has not been employed long enough, then the employer must specify the employee's tenure and the deficiency.

If the employee is eligible for FMLA leave, then the notice of eligibility must include the following information:

  • •Whether the employer will require a medical certification form (either for the employee's own health issues or the health issues of their parent, son, daughter, or spouse) to determine if the requested leave in fact qualifies under the FMLA
  • •The consequences for failing to return the medical certification form, if required, and the time limits for returning the medical certification form (the employer must provide at least 15 calendar days)
  • •Notice that the leave will count against the employee's annual FMLA leave entitlement, informing the employee how much FMLA leave the employee has available, and explaining how the leave entitlement is calculated (as discussed above)
  • •Whether the employee may substitute paid leave
  • •Whether the employer will require the employee to use accrued but unused vacation for some period of the leave
  • •Any requirement for the employee to make premium payments to maintain health benefits and the consequences for failing to do so (Keep in mind that if the employer was making such payments it must continue to do so.)
  • •The employee's status as a key employee and the potential consequence that the employer may deny restoration to their position following leave and the reasons for such possible denial

29 C.F.R. § 825.300(c).

Determining Whether Leave Qualifies under the FMLA

The employer next must determine if the FMLA leave that the employee has requested actually qualifies under the FMLA. For information on qualifying bases for FMLA leave, see Employer Coverage, Employee Eligibility, and Qualifying Bases.

The burden rests on the employee to provide sufficient information to the employer that the leave is FMLA qualifying. 29 C.F.R. § 825.302(c). If the employee fails to do so, then the employee cannot later assert that the FMLA protects the leave. See Rowe v. Laidlaw Transit, Inc., 244 F.3d 1115, 1118 (9th Cir. 2001) ("[I]f an employee does not timely provide the employer with notice of an FMLA qualifying reason for the leave, the leave may be denied."). Moreover, if the employee fails to return the medical certification form within the time period that the employer specifies, then the employer may delay allowing the leave to commence or deny the leave altogether. 29 C.F.R. § 825.300(c), (d). For more information on medical certification issues, see Requiring Medical Certification Forms below.

Informing Employee of How Employer Designated Leave

The employer must communicate its decision on whether it has approved or denied the employee's request for FMLA leave by providing the employee an FMLA designation notice, in writing, within five business days of determining whether the leave qualifies under the FMLA. 29 C.F.R. § 825.300(d). See the DOL FMLA Designation Notice. See also FMLA Conditional Designation Letter to Employee Absent from Work. It is the DOL's position that an employer may not delay the designation of leave time as FMLA leave in order to allow the employee to first exhaust other leave time. DOL, Wage and Hour Division, Opinion Letter FMLA2019-1-A (March 14, 2019).

In addition to relaying the employer's decision, the designation notice must also include any requirements that the employee substitute paid leave for FMLA leave and any fitness for duty requirements. 29 C.F.R. § 825.300(d)(1). If the employer will require fitness for duty certificate before the employee can return to work, you should advise the employer to attach a list of essential job functions so that the healthcare provider making that determination will know exactly what functions and duties the employee performs in their job. 29 C.F.R. § 825.300(d)(3). For more information on fitness for duty certifications, see "Fitness for Duty Certification" in End of FMLA Leave Issues and the Employee's Return to Work below.

A new designation notice is not required for a subsequent leave unless the employee requests the leave for a different qualifying reason, or the information provided in the prior designation notice has changed. 29 C.F.R. § 825.300(b)(3), (d)(5).

Retroactively Designating FMLA Leave

The employer may retroactively designate leave as FMLA leave if, at the time of the original leave request, the employer lacked sufficient information, but the employee took the leave anyway. 29 C.F.R. § 825.301(d). Upon receipt of sufficient information, the employer may retroactively designate the leave provided that the employer provides notice to the employee of the designation and the employer's failure to timely designate the leave does not harm the employee. Id.

A retroactive designation allows the employer to begin the FMLA leave on the first day that the employee took leave. For example, an employee may injure herself at the beginning of a two-week vacation but delay telling the employer until the employee communicates that the employee cannot return to work because of the injury. In that case, once the employer learns that the employee has qualified for FMLA leave, the employer can designate the FMLA leave to begin at the time the injury occurred. The best practice is to maintain constant and clear communications with the employee to avoid later misunderstandings.

Requiring Medical Certification Forms

An employer may require that an employee's leave for their own serious health condition or that of a family member be supported by a medical certification from the treating physician. 29 C.F.R. § 825.305(a).

The medical certification confirms the existence of a serious health condition and—if the requested leave relates to the employee's own medical condition—that the employee cannot perform their job or one or more of the essential functions of their job. 29 C.F.R. § 825.306. If the leave is to care for a sick family member, the information on the medical certification must explain how the sick family member needs the employee to care for the sick family member and the certification must provide an estimate on the frequency and duration of the leave. 29 C.F.R. § 825.306(5).

Similarly, if the employee's leave is because of a qualifying exigency to care for a covered family member of the armed forces with a serious illness or injury, the employer may require certification as a condition for the leave. 29 C.F.R. §§ 825.100(d), 825.310(a).

For leaves involving an employee's own serious health condition or the health condition of a family member, employers sometimes accept a doctor's note as proof of the leave's FMLA-qualifying status. In this situation, you should advise an employer to attach a medical certification form to the notice of eligibility and include the employee's job description (listing the essential functions of the job). Requiring the employee to complete the medical certification form will help ensure that the leave is for legitimate reasons and will facilitate the employer's determination of whether the leave qualifies under the FMLA. Whatever the employer chooses to do, however, it should strive for consistency in what it provides to employees and requires them to do. For example, if the employer requires a medical certification form from one employee, it must require it from all employees who seek an FMLA medical leave of absence.

For more information on medical certification, see Medical and Fitness for Duty Certifications. For more information on employee's medical certification obligations, see Employee's Medical Certification Obligations section of FMLA Employee Notice Requirements and Medical Certification Obligations.

For model and official medical certification forms, see:

Employers should ensure any medical information an employee provides remains confidential. See Confidential Medical Information in the Employee Leaves and Disability Context (Including Dobbs Considerations).

Timing Issues

You should advise the employer that it must give notice of the need for medical certification within five business days of the request for leave (or receives notice that such a leave is necessary). 29 C.F.R. § 825.305(b). You should also advise the employer that it must give the employee at least 15 calendar days to provide the requested medical certification. Id.

Consequences of Employee's Failure to Provide Medical Certification

The employer must inform the employee of the consequences of the employee's failure to timely provide the completed certification. 29 C.F.R. § 825.305(d). You should tell the employer to explain to all employees that their leave may be delayed until they provide sufficient medical information. 29 C.F.R. § 825.302(d).

More importantly, if the employee never provides the medical certification and the employee takes the leave anyway, the employer must advise the employee that the leave is not FMLA approved and that the protections afforded under the FMLA therefore do not apply. 29 C.F.R. § 825.313(a), (b). See U.S. Department of Labor, Wage and Hour Division, FMLA Frequently Asked Questions. These protections include the entitlement to reinstatement at the conclusion of the leave. 29 U.S.C. § 2614(a); 29 C.F.R. § 825.214. You should advise the employer to explain to employees that termination of their employment under the employer's absentee policy may result if they fail to return the medical certification form and take the leave anyway.

Employer Questions concerning the Completeness, Clarity, or Validity of the Medical Certification

If the employer finds that the certification is incomplete or otherwise deficient, the employer must immediately notify the employee of the deficiency and give them seven calendar days to cure the deficiency unless the employee may not practicably do so in that time period. 29 C.F.R. § 825.305(c). If the employee fails to do so, the employer may deny the leave. Id.

If the information contained on the certification form is unclear or the employer needs to authenticate that a doctor provider signed the document and provided the information within it, then the employer may contact the healthcare provider for clarification and/or authentication. 29 C.F.R. § 825.307(a). However, the employee's direct supervisor may not, under any circumstance, contact the employee's healthcare provider. Id. The employer must have a human resources professional, a leave administrator, or a member of management place the call. Id. You should advise the employer that the best practice is to have a human resources professional make the call in the absence of a designated leave administrator. Id. The employer may not ask for additional information beyond that provided on the certification form. Id.

Employer Requests for Second or Third Medical Opinions

If the employer has reason to question or doubt the accuracy of the information contained on the certification form, the employer may require the employee to obtain a second opinion, or even a third opinion, at the employer's expense. 29 U.S.C. § 2613(c), (d); 29 C.F.R. § 825.307(b), (c). While waiting for the second or third medical opinion, the employee is temporarily entitled to FMLA benefits. 29 C.F.R. § 825.307(b)(1). If the employer requires a third opinion, then the employer and the employee must jointly designate and approve the healthcare provider rendering the third opinion; the third opinion will be final and binding. 29 C.F.R. § 825.307(c).

Medical Recertification

The employer may request recertification every 30 days unless the duration of the condition exceeds 30 days at which time the employer make seek the recertification after the expiration of the initial duration period. 29 U.S.C. § 2613(e); 29 C.F.R. § 825.308(c). An employer may request recertification in less than 30 days if the employee requests an extension of the leave, circumstances described in the previous certification have changed and warrant recertification, or the employer becomes aware of information that cast doubt upon the continued validity of the original certification. Id.

If the employee does not provide recertification in a timely manner, the employer may deny continuation of the FMLA leave. 29 C.F.R. § 825.308(d). An employer may not seek second and third opinions on a recertification. 29 C.F.R. § 825.308(e).

Requiring Certifications for Qualifying Exigency

The employer may require the employee to provide the following information:

  • •A copy of the military family member's orders or other documentation indicating that the family member is on active duty and the dates of the active duty service.
  • •A certification from the employee specifying the qualifying exigency for which the employee requests the leave, the date the qualifying exigency commenced or will commence, and the beginning and end dates of the leave.
  • •If the qualifying exigency is to take care of a family member in the armed services due to a serious illness or injury, the employer may require the employee to obtain a medical certification completed by the family member's healthcare provider.
  • •If the leave is for the Rest and Recuperation of the military family member, the employer may require a copy of the member's Rest and Recuperation orders and the leave dates associated with that particular leave.

29 C.F.R. §§ 825.309, 825.310.

Complying with Recordkeeping Requirements

Employers must generally keep various types of payroll, benefit, and leave-related documentation for at least three years. 29 C.F.R. § 825.500(b). The following sections delineate which documents various types of employers must maintain as well as the pertinent Genetic Information Nondiscrimination Act of 2008 (GINA) and the ADA requirements that apply to various types of documentation.

Covered Employers with Eligible Employees

Covered employers with eligible employees must maintain:

  • •Payroll and employee data, including name, address, and occupation; rate or basis of pay and terms of compensation; daily and weekly hours worked per pay period; additions to or deductions from wages; and total compensation paid
    • ○ If an employer is not required to keep minimum wage and overtime records for an FMLA-eligible employee (i.e., because the employee is not covered by, or is exempt from, the Fair Labor Standards Act), the employer does not have to maintain a record of actual hours worked, provided that:
    •  Eligibility for FMLA leave is presumed for any employee who has been employed for at least 12 months –and–
    •  For employees who take intermittent or reduced schedule leave, the employer and employee agree on the employee's normal schedule or average hours worked each week and reduce their agreement to a written record
  • •Dates FMLA leave is taken
    • ○ Such information may be included in time records, requests for leave, and so forth.
    • ○ The records must designate the time off as FMLA leave and may not include leave required under state law, or an employer plan which is not also covered by the FMLA.
    • ○ If FMLA leave is taken in increments of less than a full day, the hours of the leave must be included.
  • •Copies of employee requests for FMLA leave, if in writing
  • •Copies of the employer's FMLA-required notices to employees
  • •Documents describing employee benefits and/or employer policies and practices for paid and unpaid leaves (electronic and written)
  • •Employee benefits premium payments –and–
  • •Records of any dispute between the employer and employee regarding designation of leave, including any written statements regarding the reasons for the designation and disagreement

29 C.F.R. § 825.500(c)(1–7)

Covered Employers with No Eligible Employees

Covered employers with no eligible employees must maintain:

  • •Payroll and employee data, including name, address, and occupation
  • •Rate or basis of pay and terms of compensation
  • •Daily and weekly hours worked per pay period
  • •Additions to or deductions from wages –and–
  • •Total compensation paid

29 C.F.R. § 825.500(c)(1).

Covered Employers Who Are Also Joint Employers

Covered employers who are also joint employers must maintain:

  • •All the records required in covered employers with eligible employees must maintain discussed above for their primary employees and only payroll and employee data for their secondary employees, including the following:
    • ○ Name, address, and occupation
    • ○ Rate or basis of pay and terms of compensation
    • ○ Daily and weekly hours worked per pay period
    • ○ Additions to or deductions from wages –and–
    • ○ Total compensation paid

29 C.F.R. § 825.500(c)(1–7), (e).

Employers of Airline Flight Crew Employees

Special rules apply to employers of airline flight crew employees. See 29 C.F.R. § 825.803.

GINA and ADA Requirements

Certifications, recertifications, and medical histories must be maintained as confidential medical records, and kept separate and apart from employee personnel files. 29 C.F.R. § 825.500(g).

  • •GINA. If GINA applies, employers must comply with the confidentiality requirements of Title II of GINA. 29 C.F.R. § 1635.9.
  • •ADA. If the ADA applies, employers must comply with the ADA's confidentiality requirements (29 C.F.R. §1630.14(c)(1)), except that:
    • ○ Supervisors and managers may be informed about work restrictions and accommodations
    • ○ First aid and safety personnel may be informed if the employee's physical or medical condition requires emergency treatment –and–
    • ○ Government officials investigating FMLA compliance—or other relevant law—must be given such information upon request

29 C.F.R. § 825.500(g).

FMLA Employee Notice Requirements and Medical Certification Obligations

Employee Notice Requirements

Employees must provide employers notice of their need for leave and the date on which the leave will commence. 29 C.F.R. §§ 825.302, 825.303. The employee may give notice verbally unless the employer has a specific policy requiring written notice. 29 C.F.R. §§ 825.302(c)–(d), 825.303(b)–(c). If so, the employee must comply with the employer's policy. 29 C.F.R. §§ 825.302(d), 825.303(c).

For more information on employer notice requirements, see FMLA Employer Rights and Obligations.

Specificity of Leave Request

The employee's notice need not specifically reference the FMLA, but must provide sufficient information to allow the employer to determine if the leave qualifies under the FMLA. 29 C.F.R. §§ 825.302(c), 825.303(b). If the employee cannot explain the reasons for the leave, the employer may delay or deny the leave. 29 C.F.R. §§ 825.302(c)–(d), 825.303(b)–(c). Merely calling in "sick" without providing more information will not suffice to trigger the employer's obligations under the FMLA. 29 C.F.R. § 825.303(b).

Response to Employer's Inquiries

The employee must respond to the employer's reasonable inquiry to determine if the leave qualifies under the FMLA. 29 C.F.R. §§ 825.302(c), 825.303(b). Failure to respond to the employer's inquiries may result in denial of the leave. 29 C.F.R. §§ 825.302(c), 825.303(b).

It must be clear, however, that the employee had actual notice of the FMLA notice requirements. 29 C.F.R. § 304(a). To ensure actual notice, you should make sure that the employer has (1) posted the requisite FMLA notices in a common area where employees gather, (2) included such notices in an employee handbook, (3) distributed these notices to the employee at the time of hire, and (4) requested the employee's acknowledgement of these notices. 29 U.S.C. § 2619(a); 29 C.F.R. §§ 825.300, 825.304(a).

Timing of Employee's Notice of Leave

As further explained below, employees must provide at least 30 days' prior notice of their need for leave and the date on which the leave will commence. 29 C.F.R. § 825.302(a), (c). If 30 days' prior notice is not practicable due to the basis for the leave, the employee must give notice as soon as practicable. 29 C.F.R. §§ 825.302(a), 825.303(a).

Foreseeable Leave

When the leave is foreseeable, the employee must give 30 days' advance notice of the commencement of the leave. 29 USCS § 2612(e); 29 C.F.R. § 825.302(a). Where the employee fails to give 30 days' advance notice and lacks a reasonable justification for failing to provide the notice, the employer may delay the FMLA leave for 30 days after the date the employee provided notice. 29 C.F.R. § 825.304(b). If the employer allows the employee to begin the leave without proper notice, the leave is not protected by the FMLA and the employer need not hold the employee's job open or retain the employee. However, once the 30-day period passes, employee leave becomes FMLA protected unless the employer has terminated the employee in the interim. 29 C.F.R. § 825.304(b).

Please note that employers bear the burden of showing that a legitimate, nondiscriminatory business reason existed for terminating an employee during the unprotected time period. 29 C.F.R. § 825.216. Absent a legitimate, nondiscriminatory business reason for terminating the employee, you should advise employers to allow an employee to start the FMLA leave once it determines that the employee is eligible for FMLA leave.

This analysis equally applies for leaves that are foreseeable but the employee cannot provide 30 days' advance notice because the situation has changed (e.g., the date of the employee's surgery was moved up by the doctor) or because the employee does not know exactly when the employee will need the leave. In this situation, the employee must provide notice of the need for leave as soon as practicable under the circumstances. 29 C.F.R. § 825.302(a)–(b). Since determining what is and is not "practicable under the circumstances" likely will require the examination of specific facts, you should advise employers to obtain as much information as possible from the employee regarding the change in circumstances so that it can make an informed decision to grant or delay the FMLA leave.

Unforeseeable Leave

Where the need for the leave is unforeseeable, the employee must give notice as soon as the need for the leave arises. 29 C.F.R. § 825.303(a). If the employee gives notice two or three days after the leave began, the employer may delay coverage for that number of days. 29 C.F.R. § 825.304(d). Consistency among employees is crucial to avoid a claim for interference. See Family and Medical Leave Act (FMLA) Litigation Defense Strategies. You should advise the employer that it may choose to waive an employee's notice requirement so long as it does so consistently for all employees seeking FMLA leave. See 29 C.F.R. § 825.304(e).

Employee's Medical Certification Obligations

If the employer requires a medical certification, the employee must provide a completed certification within 15 calendar days of the employer's request, unless the employer allows a longer time to provide the certification. 29 C.F.R. § 825.305(b).

If the leave is for the employee's own serious health condition, the employee must provide sufficient information to the employer to justify the requested leave. Such information includes, but is not limited to:

  • •The name, date, address, and phone/fax number of the healthcare provider and the nature of their medical practice
  • •The date on which the serious health condition commenced and its likely duration
  • •A statement or description of medical facts regarding the employee's health condition for which the employee is requesting the leave, including information on symptoms, diagnosis, any need for hospitalization, doctor visits, or other regimen of continuing treatment –and–
  • •The extent to which the employee can or cannot perform the essential functions of their position, including any restrictions, and the likely duration of their inability to perform those functions

29 C.F.R. § 825.306(a). If the employee requests intermittent leave or a reduced schedule, the employee must provide sufficient information to establish the medical necessity for such intermittent or reduced schedule leave and an estimate of the dates and duration of such periods. 29 C.F.R. § 825.306(a)(6)–(7). If the request for intermittent leave or a reduced schedule relates to the care of a covered family member with a serious health condition, the employee must provide a statement from the healthcare provider that the leave is medically necessary to care for the family member and an estimate of the frequency and duration of the required leave. 29 C.F.R. § 825.306(a)(6), (a)(8).

The employee may choose to comply with the certification requirements by providing the employer with an authorization for the employer to contact and communicate with the healthcare provider directly. 29 C.F.R. § 825.306(e).

For employer obligations regarding medical certification, see Requiring Medical Certification Forms section of FMLA Employer Rights and Obligations above.

FMLA Intermittent Leaves and Reduced Leave Schedules

Employees eligible for FMLA leave may take intermittent leave or a "reduced leave schedule" to care for a spouse, son, daughter, or parent with a serious health condition, or to care for their own serious health condition. 29 C.F.R. §§ 825.202(a), 825.203.

"Intermittent leave" is defined as leave taken in separate blocks of time due to a single qualifying reason. 29 C.F.R. §§ 825.102, 825.202(a). A reduced leave schedule is a leave schedule that decreases an employee's normal amount of work hours per workweek or hours per workday—usually a change in the employee's schedule from full-time to part-time work for a specific period. Id.

The Department of Labor has issued an opinion letter clarifying how to calculate intermittent FMLA leave during weeks with holidays.

Best Practices for Managing Intermittent Leave

In counseling employers regarding managing these types of leave, you should note the following:

  • •Employees must make a reasonable effort to schedule these types of leaves so as to not disrupt the employer's operations.
  • •Employers may require the employee to take intermittent FMLA leave using the smallest time increment that the employer's payroll system uses to measure other types of leave, with a maximum allowable increment of one hour.
  • •The employer may choose to temporarily transfer the employee to an available alternative position for which the employee is qualified and which better accommodates them during recurring periods of intermittent or reduced schedule leave than does the employee's current position. The alternative position must have equivalent pay and benefits, but does not need to have the same duties. Moreover, you should inform the employer that it may increase the pay and benefits of an existing alternative position to make the pay and benefits equivalent. Employee consent is not required.
  • •Furthermore, an exempt employee does not lose their exempt status merely because an employer, in complying with the FMLA, reduces the wages of the employee to allow for a reduced schedule or intermittent leave.

29 C.F.R. §§ 825.203, 825.204, 825.205.

FMLA Leave Abuse

Employers frequently struggle with employees who take improper advantage of leave under the FMLA. To curb and minimize FMLA leave abuse, you should advise and assist employers in taking the steps discussed below. This section contains general tips for reducing leave abuse and discusses how to curb abuse of intermittent leave.

For additional general guidance concerning leave abuse, see Attendance, Time-Off, and Leave of Absence Policies: Best Drafting and Administration Practices. For guidance on the Americans with Disabilities Act: Guidance, see Americans with Disabilities Act: Guidance for Employers.

Actions to Curb Employees' Abuse of FMLA Leave

By following these steps, employers can minimize issues with employees' misuse of FMLA leave:

  • •Regularly update and review all leave policies for compliance with federal, state and local laws. The legal landscape in this area constantly evolves with the enactment of new laws and regulations, fresh enforcement initiatives by agencies, and developments in case law. Employers' attempts to enforce their leave policies will be undermined if their leave policies do not comply with applicable laws.
  • •Maintain a conflicts of interest policy and/or a policy addressing outside employment (i.e., moonlighting). Nothing in the FMLA expressly prohibits conflict of interest and outside employment policies. Further, most state laws allow employers to adopt policies that prohibit employees from engaging in business activities that compete with the employer. However, employers must check the laws relating to employee privacy and off-duty conduct in the jurisdictions in which they have employees to determine if any state or local laws would prevent them from adopting a blanket prohibition on outside employment.
  • •Enforce all policies consistently—do not single out employees who use FMLA leave for stricter scrutiny. In attempting to reign in employees who abuse FMLA leave, the employer does not want to invite an FMLA interference claim or retaliation claim. For information on FMLA claims, see Family and Medical Leave Act (FMLA) Litigation Defense Strategies.
  • •Provide training and guidance to supervisors regarding the need for consistent enforcement of FMLA policies, and limit the latitude given to supervisors in enforcing the policies. An ill-informed or wayward supervisor can undermine the employer's best intentions.
  • •Carefully review each request for FMLA leave and make sure the requesting employee actually qualifies for the requested FMLA leave. By properly designating requested FMLA leave in the first place, employers can head off some potential FMLA abusers.
  • •Thoroughly and accurately document (with backup) suspected FMLA leave abuse. Without proper documentation, the employer will be hampered from disciplining or taking another adverse action against an employee who has abused FMLA leave.
  • •Immediately confront employees whom the employer suspects of leave abuse. For example, where the employer denies an employee's vacation request and the employee suddenly requires FMLA leave to care for their parents who live in another country, the employer should carefully scrutinize the employee's medical certification. If it does not meet the FMLA's requirements, the employer should explain those requirements, how the employee fell short, and that FMLA leave is not a substitute for vacation. See Pivac v. Component Servs. & Logistics, Inc., 2013 U.S. Dist. LEXIS 36840 (M.D. Fla. Mar. 18, 2013).
  • •Require medical certifications and, when allowed, recertification. In addition, require employees to provide accurate and complete reasons for each absence so that the employer can track protected leaves. For more information on medical certifications, see FMLA Employer Rights and Obligations above.
  • •Where allowed, require second and third medical opinions. Especially if the employer has reason to doubt the medical certification provided by the employee, it should not hesitate to require a certification by a different provider when permitted to do so.
  • •Regularly remind all employees about the importance of following the policies and that abuse will not be tolerated. The employer should publicize not only its policies but the fact that it intends to enforce them.
  • •Conduct regular internal compliance audits of leave use and administration. Such audits may identify a chink in the employer's procedures that unscrupulous employees could exploit or have exploited.

Special Considerations for Curbing Abuse of Intermittent FMLA Leave

The potential for employee abuse of FMLA leave occurs most often in the use of intermittent FMLA leave. Keep in mind that the FMLA is designed to provide a safety net for employees who deserve leave; there is no point fighting a legitimate FMLA request. As a general rule, you should assist employers in developing a plan to address leave abuse for all types of FMLA and employee leaves. However, you should also help employers create an additional aggressive process to identify, address, and root out abuse of intermittent FMLA leave.

To minimize abuse of intermittent FMLA leave, employers should follow this 13-step program:

  • •Step 1: Make sure that the leave policy sets forth the rules for use of intermittent leave. The employer should ensure transparency of its intermittent leave guidelines. After all, it is hard to blame employees for not adhering to the employer's policy when the employees have not received notice of it.
  • •Step 2: Make sure employees give proper notice of the need for intermittent leave. Specifically, the employee must give at least 30 days' notice when the employee can foresee the need for leave or as soon as practicable if the need for leave is unforeseeable. 29 U.S.C. § 2612(b), (e); 29 C.F.R. §§ 825.100(d), 825.302, 825.303.
  • •Step 3: Require that employees timely provide a complete medical certification, without exception. Specifically, the employee must provide a medical certification within 15-calendar days of the employer's request. 29 C.F.R. § 825.305(b). Make sure the healthcare provider has a job description if the leave is for the employee's own serious health condition. 29 C.F.R. § 825.123(b). If the employee is also covered by the ADA, the employer may be able to request and obtain more information from the employee's healthcare provider than the FMLA allows.
  • •Step 4: When allowed, require that employees use all accrued paid time off for intermittent leave. Employees may be less likely to abuse intermittent leave if it counts against their vacation allotment. It also may be administratively easier for the employer to pay the employee for the intermittent leave time. For more information, see Coordinating FMLA, ADA, and Other Leaves and Time Off.
  • •Step 5: Do not accept vague or incomplete medical certifications. Deny or delay the leave if the employee or the employee's healthcare provider does not properly complete the medical certification. 29 C.F.R. § 825.305(c).
  • •Step 6: When allowed, require second and third medical opinions. As with the general recommendations to curb abuse, the employer should not hesitate to require a certification by a different provider when permitted to do so, especially where it has reason to doubt the initial certification. 29 U.S.C. § 2613(c), (d); 29 C.F.R. § 825.307(b), (c).
  • •Step 7: Work with the employee to schedule the intermittent leave in a way that is least disruptive to the employer's operations. For example, if the medical certification states that the employee must attend physical therapy three times per week, call the therapy center to find out their hours of operation and, where possible, require employees to schedule appointments outside of business hours.
  • •Step 8: Monitor unscheduled intermittent absences to determine if a suspicious pattern has developed. For example, when employees only have migraines on Mondays and Fridays, you should suspect that employees may be abusing their FMLA leave.
  • •Step 9: When allowed, require recertification and documentation for each absence. For more information on medical certifications, see FMLA Employer Rights and Obligations above.
  • •Step 10: Carefully track absences and keep accurate records of employees' use of their FMLA entitlement. Given the often piecemeal nature of an employee's use of intermittent leave, it may be easy to lose track of the employee's intermittent leave time, which may result in the employee taking more than their share of protected leave, getting paid for time not on the job, or getting the wrong idea that they come and go as the employee pleases.
  • •Step 11: Immediately confront employees who do not follow the policy or rules. Do not allow violations to go unaddressed. Employees will argue that the company has condoned the misuse of FMLA leave.
  • •Step 12: Do not make exceptions to the rules out of sympathy for the plight of employees. Aggrieved employees can and will use such exceptions against the company in litigation. Unfortunately, no good deed goes unpunished.
  • •Step 13: Considerations where the employer suspects fraud. While an employer that denies FMLA to a deserving employee will be subjected to strict liability if the employer is wrong, if an employer (1) has a reasonable basis to believe the employee may be committing fraud, (2) conducts a reasonable investigation into the same, and (3) comes away with an honest belief that the employee committed fraud, it can terminate the employee without being subject to strict liability. The issue is no longer over whether the employee was entitled to leave and using it appropriately. The case will rise and fall on whether the employer had an honest belief the employee committed fraud. However, the employer will carry the burden of proof on the issue of fraud.
Disciplining and Terminating Employees on FMLA Leave

Employees who take FMLA leave are not immune to discipline and termination either while on an FMLA leave, at the expiration of the leave, or shortly after their return from leave.

Under the FMLA, employees who take protected leave merit the same rights and benefits to which they would have been entitled had they not taken an FMLA leave. For instance:

  • •If the employer maintains a policy that calls for the termination of employees who fail to report for work after a scheduled vacation or an unprotected leave, the employer can terminate an employee who fails to return to work as scheduled at the end of an FMLA. (But if the employee requires additional leave beyond the 12 weeks of FMLA leave as an ADA accommodation, the employer should not terminate the employee for failing to return from an FMLA leave.) For a model termination letter to an employee who fails to return from FMLA leave, see Employer Letter to Employee Not Returning to Work from FMLA Leave and Employee Termination Letter (FMLA, Failure to Return to Work and Contact Employer).
  • •If the employer decides to eliminate a department and lay off all of the department's employees, it can also lay off an employee in that department who is out on FMLA leave.
  • •If the employer discovers that an employee on FMLA leave embezzled money from the employer prior to taking the leave, the employer may terminate the employee immediately.

These examples provide, perhaps, the clearest examples of defensible employer decisions to terminate an employee on leave. Of course, the employer must clearly document the reasons for the employee's termination since the employer may have to justify its actions to a judge, jury, or administrative agency. For more information on best discipline and discharge practices generally, see Disciplining Employees: Key Considerations — Documenting Discipline, Disciplining Employees: Key Considerations — Implementing Discipline, Terminating Non-Union Employees: Best Practices, and Disciplining and Investigating Union Employees.

Usually, the circumstances are not as "black and white" and employers must realize that terminating an employee while on leave, upon an employee's return from leave, or shortly after the employee returns entails much risk and could lead to a retaliation claim by the employee. For more information on FMLA retaliation claims, see Family and Medical Leave Act (FMLA) Litigation Defense Strategies.

Main Considerations in Determining Whether to Discipline Employees Who Take FMLA Leave

The key question for you to ask an employer that contemplates taking an adverse action against an employee on or after an FMLA leave is: "Would you take the same action against the employee had the employee not taken an FMLA leave?" If the employer answers "yes," then the discipline or termination decision likely will be defensible. If the employer answers "no," "not sure," "maybe," or "probably," you should counsel the employer to defer or forego the adverse action.

In the case where the employer discovers the employee's performance issues or misconduct during the leave, it is critical that the employer document the performance issues or misconduct and include an explanation of how it only became aware of the problems during the employee's leave.

Typically, the employer should make its decision as to whether to discipline or terminate the employee at the time the employer discovers the new information. Further, it is advisable to act on the decision as soon as practical after the decision is made, even if the employee remains on an FMLA leave.

However, depending on the circumstances, it may be advisable for the employer to wait for the employee to return from leave to interview or confront the employee with the new information and give the employee the opportunity to explain. Each situation will be unique, and you should assist employers in making their decisions after a careful evaluation of the facts and circumstances of each case.

Special Considerations for Avoiding FMLA Retaliation Claims

One of the most problematic decisions facing employers involves a poor performing employee who "sees the writing on the wall" and takes an FMLA leave just before discipline or termination is implemented or shortly after receiving a negative evaluation or disciplinary action.

Many times in these circumstances, the employer falls victim to its own indecision or procrastination. When the employer knew of the performance issues well before the employee went on leave but failed to address them, the employer will have a more difficult time demonstrating that it had a legitimate, non-retaliatory reason for taking an adverse action against an employee while on leave or shortly after returning from leave. In those cases, it is advisable to allow the employee to return from leave and use objective criteria to evaluate the employee's performance going forward. For more information on best practices in performance management, see Performance Management: Best Practices.

In the case where the employer is implementing a layoff of selected employees and selects for layoff an employee on FMLA leave, the employer must be able to demonstrate that it evaluated and treated the employee the same as other similarly situated employees. Again, accurate and detailed documentation is critical to the defense of such decisions.

To minimize or avoid a retaliation claim, employers should consider the following before taking adverse action against an employee on FMLA leave or who has just returned from FMLA leave:

  • •Evaluate the employee using objective and documented job-related criteria (job descriptions will be an important tool).
  • •Proactively manage performance deficiencies—do not put off counseling and disciplining the employee.
  • •Apply policies consistently and apply the same level of disciplinary action as would be applied to those employees who did not take FMLA leave.
End of FMLA Leave Issues and the Employee's Return to Work

This section provides guidance on many issues pertaining to an employee's return to work after taking FMLA leave including, among others, fitness for duty certifications, placement in the same or similar position, the employee's wages upon return, temporary or light modified duty, overtime issues, and healthcare coverage.

Expiration of FMLA Leave and Return to Work

At the expiration of the employee's FMLA leave and their return to work, an employer may consult you about several issues including the employee's failure to return to work after leave expires, fitness for duty certifications, and placing the employee in the same or virtually the same position. We address each of these issues below.

For a model FMLA return to work letter, see FMLA Expired or Exhausted Leave Return-to-Work Letter (Employer).

Reasons for Terminating Employees after FMLA Leave Expires

Subject to any reasonable accommodation requirements imposed by the ADA, employers may terminate employees who fail to return to work at the end of an FMLA leave, employees who fail to request an extension, or employees who have exhausted their FMLA leave. See U.S. Department of Labor, elaws: Employment Laws Assistance for Workers & Small Businesses - Family and Medical Leave Act Advisor, Maintenance of Employee Benefits.

However, the burden of proving a legitimate, nondiscriminatory reason for a denial of reinstatement/leave extension rests solely with employers. You must advise employers to take great care in deciding to terminate employees under these circumstances. Employers should have documentation to substantiate a denial of reinstatement/extension of leave. For more information on counseling employers regarding discharging employees who have taken FMLA leave, see Disciplining and Terminating Employees on FMLA Leave, Terminating Non-Union Employees: Best Practices, and Disciplining and Investigating Union Employees.

Fitness for Duty Certification

An employer that requires an employee to submit a medical certification to commence an FMLA-protected leave may also condition reinstatement on receipt of a fitness for duty certification from the same healthcare provider who signed the initial medical certification. 29 C.F.R. § 825.312(a). The fitness for duty certificate may require a statement from the healthcare provider that the employee can perform the essential functions of their position. 29 C.F.R. § 825.312(b). Note, however, that the fitness for duty certification may only seek information regarding the serious health condition for which the employee took the leave. Id.

As with the medical certification, the employer may contact the employee's healthcare provider if the information contained on the fitness for duty certification is unclear, ambiguous, or the employer wants to authenticate the certificate. 29 C.F.R. §§ 825.307(a), 825.312(b). The employer may not delay the employee's return to work while it contacts the healthcare provider for clarification or authentication. 29 C.F.R. § 825.312(b).

For more information on fitness for duty certifications, see Medical and Fitness for Duty Certifications.

Timing Issues and Consequences for Failing to Submit

If the employer intends to require a fitness for duty certification to reinstate the employee, then it must provide notice of such requirement at the time of FMLA designation. 29 C.F.R. § 825.312(d). Employers commonly provide such notice at the time they advise employees of the need for a completed medical certification form.

As with the medical certification form, the employee wishing to be reinstated must cooperate in providing the fitness for duty certification. 29 C.F.R. § 825.312(a). If the employee fails to submit a fitness for duty certification at the expiration of the leave and does not provide a new medical certification, the employer may delay reinstatement until the employee provides the fitness for duty certification. 29 C.F.R. § 825.312(e). If the employee has exhausted their leave entitlement and fails to provide the fitness for duty certification, the employer may terminate the employee after it has properly analyzed and determined whether the Americans with Disabilities Act (ADA) protects the employee. For more information on an employer's responsibility to provide a reasonable accommodation to an employee, see Americans with Disabilities Act: Guidance for Employers.

Fitness for Duty Certifications for Intermittent or Reduced Schedule Leaves

The employer is not entitled to request a fitness for duty certification upon return from an absence resulting either from an intermittent leave or reduced schedule leave. 29 C.F.R. § 825.312(f). However, the employer may request a fitness for duty certification once every 30 days for intermittent leave and reduced schedules if the employer has reasonable safety concerns (i.e., a reasonable belief of significant risk of harm to the employee or to others) based upon the serious health condition that precipitated the leave. Id.

If the employer intends to request such a certification, it must inform the employee at the time it provides the designation notice or approves the employee's FMLA leave request. 29 C.F.R. § 825.312(f). The employer must specifically state that the employee must submit a fitness for duty certification for each subsequent instance of intermittent or reduced schedule leave unless the employee has already submitted one in the last 30 days. Id. You should advise the employer that it may require that the employee to submit such certification at whatever interval the employer chooses, so long as it does not exceed once every 30 days and the employer informs the employee of this timing in advance. Id.

Placement of Employee in Original or Substantially Similar Position

While employers should strive to place returning employees to their original position, this arrangement is not always possible. When not possible, you should advise employers that they must seek to place the employees in a position that is virtually identical to the original position; that is, a position at the same location (or geographically proximate), with the same pay (with bonuses and overtime, if applicable); the same duties; the same benefits (group health, life, and dental insurance, paid time off, and other benefits); and the same working conditions, privileges, and status. 29 C.F.R. §§ 825.214, 825.215. For example, if an employee was eligible to earn productivity bonuses in their original position, the employer must return the employee to a position that qualifies for the same bonuses.

In some cases, employees return from FMLA leave with medical restrictions on their ability to perform the essential functions of their position or they may require intermittent leave or a reduced schedule. Where an employee still has some of their FMLA leave entitlement available, you should advise the employer to count any intermittent leave or reduced schedule time against the employee's FMLA leave entitlement. If the employee has exhausted their FMLA leave entitlement and the employee suffers from an ADA disability, the employee may be entitled to intermittent leave or a reduced schedule as a "reasonable accommodation" under the ADA. For more information on intermittent leave, see FMLA Intermittent Leaves and Reduced Leave Schedules and "Special Considerations for Curbing Abuse of Intermittent FMLA Leave" in FMLA Leave Abuse.

In determining whether to place employees back into their original position or an equivalent position, employers should not "play doctor" and speculate whether employees may suffer further injury or be able to work safely if returned to their original position. Unless an employee's doctor places restrictions on the employee's return to work which the employer cannot accommodate in the employee's original position, the employer expose itself to FMLA interference or retaliation claims if it does not return the employee to their original position. For information on FMLA claims, see Family and Medical Leave Act (FMLA) Litigation Defense Strategies.

Further, you should advise employers to take care when considering past performance as a reason not to return employees to their original position. Unless the employer discussed the performance issues with the employee and documented them prior to the employee's leave, a court may view the failure to return the employee to their original position as a pretext for FMLA retaliation. For more information on how to document performance issues, see Performance Management: Best Practices.

Complying with Reinstatement Rights

Pursuant to the FMLA, employers must reinstate employees returning from an FMLA leave to the same or equivalent position with the same or equivalent "benefits, pay, and other terms and conditions of employment." 29 C.F.R. § 825.214. Under the FMLA, a position with equivalent pay for returning employees includes unconditional pay raises (i.e., cost of living or step increases) and nondiscretionary bonuses, such as seniority-based bonuses or bonuses that employers pay to employees who take non-FMLA leaves. 29 C.F.R. § 825.215(c)(1). If the bonuses are based on attendance, hours worked, or sales, returning employees may be entitled to a pro rata payment for these bonuses. If the returning employee did not meet the eligibility criteria for such bonuses before going on leave, the employer would not be required to make these bonus payments—unless employees who took non-FMLA leave received such payments. 29 C.F.R. § 825.215(c)(2). You should advise the employer that it need not grant pay increases conditioned upon seniority, length of service, or work performed unless the employer's policies require such pay increases. 29 C.F.R. § 825.215(c)(1). For more information on requirements for equivalent pay and benefits after taking FMLA leave, see Question 7 under Attendance, Time-Off, and Leave of Absence Policies: Best Drafting and Administration Practices — Steps and Considerations for Drafting Leave Policies).

Unless it cannot be avoided, you should advise the employer to return the employee to their exact prior position in order to avoid a claim by the employee that the position is not truly equivalent. 29 C.F.R. §§ 825.214, 825.215. The employee has no greater reinstatement rights merely because they took FMLA leave (i.e., if the employer planned to eliminate the position during the period of the leave, then the employee is not entitled to another position). 29 C.F.R. § 825.216(a). However, the employer has the burden of showing that it would have laid off the employee even if they had not taken leave.

The employer is not required to return the employee to the same or equivalent position if the employee fails to return to work at the end of the leave entitlement period. If an employer seeks to terminate an employee for job abandonment after their failure to return after the expiration of the leave period, the employer must be certain that the employee has abandoned their job. You should make sure that the employer has properly disseminated policies governing job abandonment and that the employee had notice of the consequences for failing to return.

An employer is not required to return the employee to their prior position if they cannot perform the essential functions of the job. 29 C.F.R. § 825.216(c). However, the appropriate analysis under the ADA may require a reasonable accommodation. 29 C.F.R. §§ 825.216(c), 825.702(b).

Finally, employees who use or return from FMLA leave may not be penalized by company policies such as "no-fault" attendance policies. 29 C.F.R. § 825.220(c). You should advise employers that they may not implement productivity metrics that apply to full-time employees unless prorated for employees on intermittent leave or a reduced schedule.

"Key Employees"

Importantly, "key employees"—defined as FMLA-eligible salaried employees among the highest paid 10% of all employees within 75 miles of the worksite—are not entitled to reinstatement under FMLA when reinstatement would cause the company substantial and grievous economic injury. 29 C.F.R. §§ 825.102, 825.217(a), 825.218(a). Courts have not defined what constitutes "substantial and grievous economic injury," but minor inconveniences and costs do not count. 29 C.F.R. § 825.218(c).

Temporary Modified or Light Duty

The DOL has specifically addressed the use of temporary "light" or "modified" duty in connection with FMLA leave. See 29 C.F.R. § 825.220(d). The FMLA does not require that employers develop or implement a light or modified duty program. But, if such a program exists, employers must offer it to qualified employees who use or took FMLA leave. 29 C.F.R. § 825.702(d)(2). Employees must have the right to accept or reject a light or modified duty assignment. 29 C.F.R. §§ 825.220(d), 825.702(d)(2). Furthermore, although employers may institute programs that allow employees to avail themselves of light or modified duty on a temporary basis, employers choosing to offer only a temporary program must explicitly state that it does not offer permanent light or modified duty assignments.

Under the regulations, employees who accept a light or modified duty assignment (with or without a reduction in hours worked) upon return from FMLA leave are no longer considered on FMLA leave. Accordingly, the time spent in the light or modified duty assignment does not count against an employee's FMLA entitlement. See Doe v. Mylan Pharm., Inc., 2017 U.S. Dist. LEXIS 47820, at *10 (N.D.W. Va. Mar. 30, 2017); 73 Fed. Reg. 67934, 67989. An employee's right to reinstatement to their original or equivalent position under the FMLA is held in abeyance while performing a light or modified duty assignment. 29 C.F.R. § 825.220(d). If employees cannot return to their original or equivalent position at the expiration of the light or modified duty assignment because they cannot perform the essential functions of their original or equivalent position, employers may return employees to FMLA leave status for the remainder of their FMLA leave entitlement. 29 C.F.R. § 825.207(e), 825.702(d)(2).

Overtime Issues

Similarly, under the FMLA regulations, if employers require employees to work set overtime hours, any overtime hours that employees do not work because of FMLA leave may be counted against their FMLA leave entitlement. 29 C.F.R. § 825.205(c). Employers may not count voluntary overtime hours not worked due to FMLA leave against an employee's FMLA leave entitlement. Id. Further, if the employee's original position included mandatory overtime before and after FMLA leave, the employee must be restored to the same number of hours upon return from leave unless the employer eliminated the mandatory overtime for all similarly situated employees. 29 C.F.R. §§ 825.215(a), (c)(1), 825.216(a)(2).

Maintaining Healthcare Benefits

The employer also must maintain the employee's healthcare benefits during the period of the leave. 29 U.S.C. § 2614(c); 29 C.F.R. § 825.209(a), (b). In short, the employee's FMLA leave should not affect the employee's health care coverage.

If an employer's group health plan permits an employee to change coverage or add new family members, the employer must allow the change in benefits while the employee is out on FMLA leave. 29 U.S.C. § 2614(c)(1); 29 C.F.R. § 825.209(a)–(c). Further, should the employee decide not to retain group health plan coverage while on FMLA leave, the employee is entitled to be reinstated with the same group health plan benefits upon returning from leave and without precondition. 29 C.F.R. § 825.209(e).

The employer may also elect to continue the employee's health care coverage at its own cost. 29 C.F.R. § 825.212(b). Should the employer elect to pay the employee's portion of the premium while the employee is out on FMLA leave, it may recuperate the cost of the benefits paid on the employee's behalf when the employee returns to work. Id.

The employer is not obligated to maintain health coverage if the employer would have terminated the employee even if the employee had not taken FMLA leave. 29 C.F.R. §§ 825.209(f), 825.211(e)(2). If the employee notifies the employer that the employee will not be returning from leave, the employer need not continue the coverage from the date of notification, even if the notification occurs at the beginning of the leave. 29 C.F.R. §§ 825.209(f), 825.211(e)(3). Similarly, if the employee either fails to return from leave, or continues the leave after the exhaustion of the leave entitlement, the employer is not obligated to continue the healthcare coverage other than through Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) if the employee separates or if the employer terminated the employee. 29 C.F.R. §§ 825.209(f), 825.211(e)(1).

Finally, you should advise the employer that it can make an employee repay the employer's share of the premium if the employee does not to come back to work after their FMLA leave—except if the employee fails to return to work due to circumstances outside their control. 29 C.F.R. § 825.213(a). Specifically, an employer may recover its share of group health plan premiums paid during a period of unpaid FMLA leave if the employee fails to return to work after the employee exhausts the leave entitlement for a reason other than a continuation, recurrence, or onset of a serious health condition of the employee or the employee's family member. Id.


Current as of: 04/22/2023