Family and Medical Leave Act Frequently Asked Questions

Questions

Q1. I've used FMLA Leave in the past year for my own serious health condition. Am I also entitled to another 12 weeks to care for a seriously ill family member, since it's for a different reason? 

Q2. Are both male and female employees entitled to time off for the birth or adoption of a child? How may sick and vacation time be utilized? 

Q3. May I terminate an employee who is out on FMLA leave?

Q4: How is the 12-month period calculated under FMLA?

Q5 : Does the law guarantee paid time off?

Q6: Does Workers’ Compensation leave count against an employee’s FMLA leave entitlement?

Q7: Can the employer count leave taken due to pregnancy complications against the 12 weeks of FMLA leave for the birth and care of my child?

Q8: Can the employer count time on maternity leave or pregnancy disability as FMLA leave?

Q9: If an employer fails to tell employees that the leave is FMLA leave, can the employer count the time they have already been off against the 12 weeks of FMLA leave?

Q10: Who is considered an immediate "family member" for purposes of taking FMLA leave?

Q11: May I take FMLA leave for visits to a physical therapist, if my doctor prescribes the therapy?

Q12: Which employees are eligible to take FMLA leave?

Q13: Do the 12 months of service with the employer have to be continuous or consecutive?

Q14: Do the 1,250 hours include paid leave time or other absences from work?

Q15: How do I determine if I have worked 1,250 hours in a 12-month period?

Q16: Do I have to give my employer my medical records for leave due to a serious health condition?

Q17: Can my employer require me to return to work before I exhaust my leave?

Q18: Are there any restrictions on how I spend my time while on leave?

Q19: Can my employer make inquiries about my leave during my absence?

Q20: Can my employer refuse to grant me FMLA leave?

Q21: Will I lose my job if I take FMLA leave?

Q22: Are there other circumstances in which my employer can deny me FMLA leave or reinstatement to my job?

Q23: Can my employer fire me for complaining about a violation of FMLA?

Q24: Under what circumstances is leave designated as FMLA leave and counted against the employee's total entitlement?

 

Answers

Q1. I've used FMLA Leave in the past year for my own serious health condition. Am I also entitled to another 12 weeks to care for a seriously ill family member, since it's for a different reason? 

No. All FMLA-qualifying leave is cumulative, up to a maximum of 12 weeks in any 12-month period. The federal regulations state that an employee may be off "for up to a total of 12 workweeks in any 12 months because of the birth of a child and to care for the newborn child; because of the placement of a child with the employee for adoption or foster care; because the employee is needed to care for a family member (child, spouse, or parent) with a serious health condition; or because the employee's own serious health condition makes the employee unable to perform the functions of his or her job." 

Q2. Are both male and female employees entitled to time off for the birth or adoption of a child? How may sick and vacation time be utilized? 

Yes. Birth mothers may be entitled to time off for their own serious health condition (pregnancy -- including prenatal care, medical incapacity related to pregnancy, and post-birth recovery), and may use accrued sick leave for such time off.

A husband may be entitled to time off to care for his pregnant wife (if there are periods of her pregnancy or post-birth recovery in which she is incapacitated and requires his care) and he may use accrued sick leave for such time off.

Beyond those circumstances, time off to make adoption arrangements, or to "bond" with a healthy newborn or newly-adopted child, does not allow for use of accrued sick time; however, either parent may utilize accrued vacation time, or take time off without pay if no vacation time is available, for such a purpose. Such time must be taken within the 12 months immediately following the birth or adoption. USG institutions may require that such "bonding" time off be taken as a single continuous period rather than as intermittent leave. 

Q3. May I terminate an employee who is out on FMLA leave?

An employer may not take any adverse action against an employee for taking FMLA leave; however, a personnel action/decision that would have happened if the employee had continued to work may happen while the employee is on FMLA leave.

For example, if an employer decides that a reduction-in-force is necessary and the employee taking FMLA leave legitimately falls within the group of employees to be laid off, the employee may be laid off even while taking FMLA leave. If the employee is laid off, the employer's obligations under FMLA stop as of the effective date of the layoff.

Q4: How is the 12-month period calculated under FMLA?

Employers may select one of four options for determining the 12-month period:

• The calendar year;

• Any fixed 12-month "leave year" such as a fiscal year, a year required by state law, or a year starting on the employee’s "anniversary" date; 

• The 12-month period measured forward from the date any employee’s first FMLA leave begins; or 

• A "rolling" 12-month period measured backward from the date an employee uses FMLA leave.

The University System of Georgia uses the “rolling” year option.

Q5 : Does the law guarantee paid time off?

No. The FMLA only requires unpaid leave. However, the law permits an employee to elect -- or the employer to require the employee -- to use accrued paid leave, such as vacation or sick leave, for some or all of the FMLA leave period. The university has made the decision that it will require the use of paid leave to run concurrently with FMLA leave.

When paid leave is substituted for unpaid FMLA leave, it may be counted against the 12-week FMLA leave entitlement if the employee is properly notified of the designation when the leave begins.

Q6: Does Workers’ Compensation leave count against an employee’s FMLA leave entitlement?

Yes. FMLA leave and Workers’ Compensation leave may run at the same time, provided the reason for the absence is due to a qualifying serious illness or injury and the employer appropriately notifies the employee that the leave will be counted as FMLA leave.

Q7: Can the employer count leave taken due to pregnancy complications against the 12 weeks of FMLA leave for the birth and care of my child?

Yes. An eligible employee is entitled to a total of 12 weeks of FMLA leave in a 12-month period. If the employee has to use some of that leave for another reason, including a difficult pregnancy, it may be counted as part of the 12-week FMLA leave entitlement.

Q8: Can the employer count time on maternity leave or pregnancy disability as FMLA leave?

Yes. Pregnancy disability leave or maternity leave for the birth of a child would be considered qualifying FMLA leave for a serious health condition and may be counted in the 12 weeks of leave so long as the employer appropriately notifies the employee of the FMLA designation.

Q9: If an employer fails to tell employees that the leave is FMLA leave, can the employer count the time they have already been off against the 12 weeks of FMLA leave?

Courts have differed regarding whether FMLA time may be designated retroactively. In general, the employee should be notified in writing as soon as it is determined by the institution that an absence qualifies and is being considered as FMLA leave. 

Q10: Who is considered an immediate "family member" for purposes of taking FMLA leave?

An employee’s spouse, children (son or daughter), and parents are immediate family members for purposes of FMLA. The term "parent" does not include a parent "in-law". The terms son or daughter do not include individuals age 18 or over unless they are "incapable of self-care" because of mental or physical disability that limits one or more of the "major life activities" as those terms are defined in regulations issued by the Equal Employment Opportunity Commission (EEOC) under the Americans With Disabilities Act (ADA).

Q11: May I take FMLA leave for visits to a physical therapist, if my doctor prescribes the therapy?

Yes. FMLA permits you to take leave to receive "continuing treatment by a health care provider," which can include recurring absences for therapy treatments such as those ordered by a doctor for physical therapy after a hospital stay or for treatment of severe arthritis.

Q12: Which employees are eligible to take FMLA leave?

Employees are eligible to take FMLA leave if they have worked for their employer for at least 12 months, and have worked for at least 1,250 hours over the previous 12 months, and work at a location where at least 50 employees are employed by the employer within 75 miles.

Q13: Do the 12 months of service with the employer have to be continuous or consecutive?

No. The 12 months do not have to be continuous or consecutive; all time worked for the employer is counted.

Q14: Do the 1,250 hours include paid leave time or other absences from work?

No. The 1,250 hours include only those hours actually worked for the employer. Paid leave and unpaid leave, including FMLA leave, are not included.

Q15: How do I determine if I have worked 1,250 hours in a 12-month period?

Your individual record of hours worked would be used to determine whether 1,250 hours had been worked in the 12 months prior to the commencement of FMLA leave. As a rule of thumb, the following may be helpful for estimating whether this test for eligibility has been met:

• 24 hours worked in each of the 52 weeks of the year; or

• Over 104 hours worked in each of the 12 months of the year; or

• 40 hours worked per week for more than 31 weeks (over seven months) of the year. 

Q16: Do I have to give my employer my medical records for leave due to a serious health condition?

No. You do not have to provide detailed diagnostic information or actual medical records. The employer may, however, request that, for any leave taken due to a serious health condition, you provide a medical certification from your healthcare provider confirming that a serious health condition exists.

Q17: Can my employer require me to return to work before I exhaust my leave?

Subject to certain limitations, your employer may deny the continuation of FMLA leave due to a serious health condition if you fail to fulfill any obligations to provide supporting medical certification. The employer may not, however, require you to return to work early by offering you a light duty assignment.

Q18: Are there any restrictions on how I spend my time while on leave?

Employers with established policies regarding outside employment may uniformly apply those policies to employees on FMLA leave. Otherwise, the employer may not restrict your activities. The protections of FMLA will not, however, cover situations where the reason for leave no longer exists, where the employee has not provided required notices or certifications, or where the employee has misrepresented the reason for leave.

Q19: Can my employer make inquiries about my leave during my absence?

Yes, they may make inquiries of you. Your employer may ask you questions to confirm whether the leave needed or being taken qualifies for FMLA purposes, and may require periodic reports on your status and intent to return to work after leave. Also, if the employer wishes to obtain another opinion, you may be required to obtain additional medical certification at the employer’s expense, or verification during a period of FMLA leave. The employer may have a healthcare provider representing the employer contact your healthcare provider, with your permission, to clarify information in the medical certification, or to confirm that it was provided by the health care provider. The inquiry may not seek additional information regarding your health condition or that of a family member.

Q20: Can my employer refuse to grant me FMLA leave?

If you are an "eligible" employee who has met FMLA’s notice and certification requirements (and you have not exhausted your FMLA leave entitlement for the year), you may not be denied FMLA leave.

Q21: Will I lose my job if I take FMLA leave?

Generally, no. It is unlawful for any employer to interfere with or restrain or deny the exercise of any right provided under this law. Employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions. Under limited circumstances, an employer may deny reinstatement to work - but not the use of FMLA leave - to certain highly paid, salaried ("key") employees.

Q22: Are there other circumstances in which my employer can deny me FMLA leave or reinstatement to my job?

In addition to denying reinstatement in certain circumstances to "key" employees, employers are not required to continue FMLA benefits or reinstate employees who would have been laid off or otherwise had their employment terminated had they continued to work during the FMLA leave period as, for example, due to a general layoff. Employees who give unequivocal notice that they do not intend to return to work lose their entitlement to FMLA leave. Employees who are unable to return to work and have exhausted their 12 weeks of FMLA leave in the designated "12 month period" no longer have FMLA protections of leave or job restoration.

Under certain circumstances, employers who advise employees experiencing a serious health condition that they will require a medical certificate of fitness for duty to return to work may deny reinstatement to an employee who fails to provide the certification, or may delay reinstatement until the certification is submitted.

Q23: Can my employer fire me for complaining about a violation of FMLA?

No. Nor can the employer take any other adverse employment action on this basis. It is unlawful for any employer to discharge or otherwise discriminate against an employee for opposing a practice made unlawful under FMLA.

Q24: Under what circumstances is leave designated as FMLA leave and counted against the employee's total entitlement?

It is the employer's responsibility to designate leave taken for an FMLA reason as FMLA leave. The designation must be based upon information furnished by the employee. Leave should not be designated as FMLA leave after the leave has been completed and the employee has returned to work, except if

• The employer is awaiting receipt of the medical certification to confirm the existence of a serious health condition;

• The employer was unaware that leave was for an FMLA reason, and subsequently acquires information from the employee such as when the employee requests additional or extensions of leave; or,

• The employer was unaware that the leave was for an FMLA reason, and the employee notifies the employer within two days after return to work that the leave was FMLA leave.