Labor FAQs – Family Medical Leave Act

Q: Does the Family and Medical Leave Act (FMLA) guarantee paid time off?

A: 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, concurrently with some or all of the FMLA leave. Requiring employees to exhaust paid leave concurrently with FMLA leave means that the employee cannot be out for twelve weeks FMLA leave and then have, for example, two weeks vacation in addition.

Q: What if the employee has been employed for a total of more than a year, but had a break in service and has only been back at work for seven months. Is the employee eligible for FMLA leave?

A: If the employee has been employed for at least a year AND worked for 1250 hours in the last twelve months, yes. For example, if the employee was employed for three years, left the company for four months and came back and has only worked seven months, but has completed 1250 hours in those last seven months, the employee would be eligible for leave, assuming it is for a qualified reason.

Q: Does workers’ compensation leave count against an employee’s FMLA leave entitlement?

A: It may. FMLA leave and workers’ compensation leave can run together, provided the reason for the absence is due to a qualifying serious illness or injury and the employer properly notifies the employee in writing that the leave will be counted as FMLA leave.

Q: Who is considered an immediate “family member” for purposes of taking FMLA leave?

A: 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 the Americans with Disabilities Act (ADA).

Q: Are employees required to furnish medical records for leave due to a serious health condition?

A: No. However, you may request that the employee provide a medical certification confirming that a serious health condition exists.

Q: What can an employer do about an employee who needs intermittent leave for continuing treatment by a doctor?

A: The employer can require the employee to schedule appointments in the manner least disruptive to the employee’s work. For example, if the treatment can be scheduled outside of the employee’s regular work hours, the employer may require the employee, if possible, to scheduled appointments so as not to interfere with work.

Q: What can an employer do about the health insurance premiums paid by the employer while an employee was out on leave if the employee does not return to work?

A: If the employee fails to return to work for a reason unrelated to the need for the leave, for example if the employee decides not to return by choice, then the employer can seek to recoup the employer’s portion of the health insurance premiums from the employee.

Q: What if an employer hears that an employee on leave does not intend to return to work at the end of leave?

A: An employer may require employees to report periodically on their status and intent to return to work while on FMLA leave, provided that the employer’s policy regarding requiring such reporting is not discriminatory. Therefore, it would be a good idea to have an across the board policy requiring employees on leave to certify their intent to return to work at the end of their leave. It would probably be discriminatory to only require women on leave for the birth of a child to provide such a certification.