family and medical leave act (fmla) a guide for personnel officers

Family and Medical Leave Act

(FMLA)

A Guide for Personnel Officers

What is FMLA?

FMLA is a federal law which entitles eligible employees to up to a total of 12 workweeks of unpaid leave (may be used intermittently and an employer may allow for paid or unpaid leave) in any 12-month period for any of the following reasons:

Eligible FMLA Reasons:

Birth of a child and to care for the newborn child



Placement with the employee of a child for adoption or foster care



A serious health condition that makes an employee unable to perform functions of the employee’s job




A serious health condition that makes an employee unable to perform functions of the employee’s job


To care for the employee’s spouse, child, or parent with a serious health condition, or an adult child who cannot care for himself

FMLA Eligibility

Employee must have worked at least 12 months for the State and at least 1,250 work hours during the preceding 12 months.

The time of employment may be separated by a break in service as long as the total time worked is at least 12 months.

Overtime hours are included but any paid and unpaid leave is not included.

FMLA Eligibility

The State has determined that a “rolling” 12 month period shall be used to calculate FMLA entitlement.

FMLA Eligibility


The date on which an employee begins FMLA leave is the beginning of the “rolling period”.

FMLA Eligibility


The date on which an employee begins FMLA leave is the beginning of the “rolling period”.

One an employee has used the 12 week entitlement, the determination of when additional leave may be granted shall be made by counting 12 months from the date on which the employee first used FMLA leave.

FMLA Eligibility

State Personnel and Pensions Article, Section 9-505, allows an employee to use up to 30 days of accrued sick leave, without certification of illness or disability, to care and nurture a child immediately after birth or placement for adoption.

FMLA Eligibility


This State allowance for use of leave runs concurrently with FMLA leave.

FMLA Eligibility


This State allowance for use of leave runs concurrently with FMLA leave.

FMLA leave may also run concurrently with worker’s comp or accident leave.

Definition of a Serious Health Condition

An illness or injury that requires inpatient stay in a hospital, hospice, or residential medical care facility or continuing treatment by a health care provider.

Otherwise, a period of incapacity must be for more than 3 consecutive days and involve one or more of the following:


Treatment 2 or more times by a health care provider

Treatment by a health care provider at least once which results in a regimen of continuing medical treatment


Also includes any period of absence or incapacity due to any of the following: pregnancy or prenatal care treatment for a chronic condition (asthma, diabetes, etc.) a permanent or long-term illness where treatment may

not be effective (Alzheimer’s, terminal stages of a disease, etc.)

Multiple treatments of an illness or restorative surgery after illness (chemotherapy, dialysis, physical therapy, etc.)

Benefits During FMLA Leave

An employee on FMLA absence does not lose any “employment benefits” accrued prior to the FMLA leave.

The term “employment benefits” is broadly defined to include all retirement, health, disability, and life insurance benefits as well as sick leave, annual leave, and personal leave benefits.

Benefits During FMLA Leave

Furthermore, commendations, bonuses, and awards for perfect attendance may not be jeopardized by FMLA absence.

An FMLA absence may NOT be counted against an employee as a leave occurrence for attendance control purposes. (May not be used against employee during PEP process.)

Job Restoration Upon Return From FMLA

An employee who is returning from an approved FMLA absence must be restored to the same or equivalent benefits, pay, and other terms and conditions of employment.


The appointing authority is obligated to place the employee in the same or equivalent position even if a replacement has been hired

An equivalent position must ordinarily be on the same shift or work schedule as the position held by the employee prior to the FMLA absence and must be located in a geographically proximate work site.


When a FMLA absence is requested for the employee’s own serious health condition, the employee is required, prior to returning to work, to provide medical certification indicating that the employee is fit to resume work. (Form MS 411)


An employee must be notified if a fitness for duty certification is required.



An employee must be notified if a fitness for duty certification is required.

Any fitness for duty certification must be job-related and may be required only with regard to the medical condition that caused the FMLA absence.


FMLA Notice Requirement

In all circumstances, it is the employer's responsibility to designate leave, paid or unpaid, as FMLA-qualifying, and to give notice of the designation to the employee. DOL 29 CFR 825.208

With certain exceptions, the employer must make the designation within 2 business days of learning of the eligibility under FMLA.

The notice shall contain the following 7 items:

FMLA Notice RequirementForm MS 412

Notification that all eligible leave shall be counted against the 12 week entitlement

Requirements for medical certification (if applicable) and any consequences for failing to do so

Requirement for the employee to pay health insurance premiums including how to make payments and consequences of failing to do so

Requirement for fitness for duty certificate (if applicable)

Employee’s right to receive the same or equivalent position upon return to work

Whether the agency requires that paid leave be substituted for an unpaid FMLA absence

Employee’s potential liability to pay health insurance premiums if he/she does not return to work

Unlawful Acts Under FMLA

An employer is prohibited from interfering with, restraining, or denying the exercise of (or attempts to exercise) any rights provided by FMLA.

An employer may not discharge or in any other way discriminate against a person for opposing or complaining about any unlawful practice under the Act.

Discouraging an employee from using FMLA leave or manipulating circumstances relating to eligibility under the Act are both prohibited.

Employee FMLA Responsibilities

Employee shall provide not less than 30 days notice before the absence is to begin. (Form MS 410)

If 30 days notice is not practical, an employee or his/her representative is required to give notice no later than 2 business days after learning of the need for the absence.

If an employee is unable to give advance notice but gives notice within 2 days of returning to work, the time off may be treated as an FMLA absence.

Medical Certification Under FMLA

An employee requesting an FMLA absence for the serious condition of a family member or the employee’s own serious health condition shall be provided a form MS 411 within 2 business days of the request.

The employee must provide the completed certification form within 15 calendar days, unless it is not practical to do so.

Medical Certification Under FMLAForm MS 411

Form MS 411, if properly completed, contains all of the required information: medical facts supporting certification (a diagnosis is

not required) date of commencement and duration of absence additional treatments required/needed for

intermittent absence (a diagnosis is not required) ability of employee to perform essential job

functions

Medical Certification Under FMLAForm MS 411

The appointing authority may NOT request additional information from the employee’s health care provider.

However, with the employee’s permission, a health care provider representing the appointing authority (Concentra) may contact the health care provider of the employee or the employee’s family member.

Recertification of Medical Conditions

Employees not under MOU - recertification may be requested not more than once every 30 days unless the circumstances have changed significantly.

Employees under MOU - recertification may not be requested more than once every 6 months.

FMLA Record RequirementsThe following records must be kept for at

least 3 years: Payroll and identifying employee data Dates of any FMLA absences (either in full

days or hours) Copies of notices and requests for absence as

well as notices given to the employee Documents describing employee benefits or

State policies regarding paid and unpaid leave Premium payments of employee benefits Records of any disputes regarding designation

of leave as an FMLA absence

FMLA Record Requirements

Records and documents relating to medical certifications, recertifications, or medical histories of employees or their family members must be maintained in separate files and be treated as confidential medical records.

FMLA Record Requirements

The only persons who can obtain access to these confidential records are: Supervisors and managers who need to be

informed of the employee’s work restrictions and/or accommodations

First aid and safety personnel (if applicable) Government officials investigating compliance

with FMLA

Enforcement of FMLA

The U.S. Department of Labor is authorized to investigate and resolve complaints of violations.

An eligible employee may bring civil action against an employer for violations.

FMLA Cases

George v. Associated Stationers, 932 F. Supp. 1012 (N.D. Ohio 1996) - An employer’s sick leave policy that does not exempt as an “occurrence” an absence caused by an FMLA qualifying event violates the FMLA.

FMLA Cases

Brannon v. Oshkosh B’Gosh, Inc., 897 F. Supp. 1028 (M.D. Tenn. 1995) - Employees need not expressly assert rights under FMLA, or even mention FMLA, but need only state that leave is needed. It is the employer’s duty to make further inquiry to determine if leave qualifies for FMLA protection.

FMLA Cases

Manuel v. Westlake Polymers, Inc., 66 F. 3d. 758 (5th Cir. 1995) per DOL regulations - “in all circumstances, it is the employer’s responsibility to designate leave, paid or unpaid, as FMLA qualifying, based on the information provided by the employee.” If the employer does not have sufficient information about the employee’s reason for leave, “the employer should inquire to further ascertain whether the paid leave is potentially FMLA-qualifying.”

FMLA Cases

Manuel v. Westlake Polymers, Inc., 66 F. 3d. 758 (5th Cir. 1995) - Under regulations issued by the DOL, an employer who grants an employee leave but does not designate the leave as FMLA leave will still owe the employee 12 weeks of leave, regardless of the amount of leave already taken. An employer cannot retroactively designate leave as FMLA.

FMLA Resources

DBM FMLA Guide

Department of Labor http://www.dol.gov/elaws/fmla.htm

Society for Human Resource Management (SHRM) http://www.shrm.org

family and medical leave act (fmla) a guide for personnel officers

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