Family and Medical Leave Act (FMLA) Fact Sheet

August 5th, 2019 by Jennifer Weiner

As adults, we can’t have our parents call us in sick to school when we have extended medical needs or family to take care of, but we may not be eligible for extended disability leave from work. The Family Medical Leave Act (FMLA) could be a good option for you if you or your loved one need more than a couple of days off of work to manage a medical issue. Below find details on what and who FMLA covers.

What is FMLA?

The Family and Medical Leave Act (FMLA) is a federal law that provides eligible employees of covered employers with unpaid, job-protected leave for qualifying family members and qualifying medical reasons.

What does the Family and Medical leave act provide?

FMLA provides eligible employees up to 12 work weeks of unpaid leave per year.
FMLA requires group employee benefits to be maintained during the leave as if the employee continued to work instead of taking leave.
Employees are also entitled to return to their same or an equivalent job at the end of their FMLA leave.

What is a Covered Employer?

A covered employer is one of the following:

Private employers with 50 or more employees within a 75-mile radius, in at least 20 weeks of the current or preceding calendar year
Public agencies, including Local, State, and Federal employers and local education agencies
- If an employer meets these requirements, that employer is required to offer FMLA to its employees, regardless of the number of employees it has.

What is an Eligible Employee?

An employee is eligible for FMLA leave if he or she has met all the following:

Worked for the employer for at least 12 months (does not need to be consecutive); and
Worked at least 1,250 hours for the employer during the 12-month period immediately preceding the leave request; and
Is employed at a location where the employer has at least 50 employees within a 75‐mile radius; and
Meets a qualifying medical reason.

What are Qualifying Reasons?

The following are qualifying reasons for FMLA leave:

The birth of a son or daughter, and to bond with the newborn child;
For the placement with the employee of a child for adoption or foster care, and to bond with that child;
To care for an immediate family member (spouse, child, or parent – but not a parent “in‐law”) with a serious health condition;
To take medical leave when the employee is unable to work because of a serious health condition; or
For qualifying exigencies arising out of the fact that the employee’s spouse, son, daughter, or parent is on covered active duty or call to covered active duty status as a member of the National Guard, Reserves, or Regular Armed Forces.

The FMLA also allows eligible employees to take up to 26 workweeks of unpaid, job‐protected leave in a “single 12 month period” to care for a covered servicemember with a serious injury or illness.

What is a Serious Health Condition?

A serious health condition is an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a health care provider.

The most common serious health conditions that qualify for FMLA leave include but are not limited to:

Conditions requiring an overnight stay in a hospital or other medical care facility;
Conditions that incapacitate you or your family member (for example, unable to work or attend school) for more than three consecutive days and have ongoing medical treatment (either multiple appointments with a health care provider or a single appointment and follow‐up care such as prescription medication);
Chronic conditions that cause occasional periods when you or your family member are incapacitated and require treatment by a health care provider at least twice a year; and
Pregnancy (including prenatal medical appointments, incapacity due to morning sickness, and medically required bed rest).

What are the Different Types of FMLA Leave?

Continuous FMLA Leave – an approved continuous leave for a specified amount of time (up to 12 weeks max.)
Intermittent/Reduced Leave– taking leave in separate blocks of time for a single qualifying reason or reducing the employee’s usual weekly or daily work schedule.

How does PTO work with FMLA?

Employees may choose to use, or employers may require the employee to use accrued paid leave, paid vacation, paid personal time or other PTO to cover all or part of the FMLA leave taken.

When Should an Employee Notify the Employer of an FMLA Need?

Foreseeable Need Greater Than 30 Days: Employees seeking FMLA are required to provide 30‐days or more advanced notice to employers when such notice is practicable.
Foreseeable Need Less Than 30 Days: Employees seeking FMLA are required to provide notice as soon as practicable. Generally, either same day or next business day.
Unforeseeable Need: The employee must provide notice to the employer as soon as practicable under the facts and circumstances of the case.
Call‐in Procedure: If an employee has been approved for FMLA leave, employees are required to comply with the employer’s usual and customary notice and procedural requirements for requesting leave and/or as soon as practicable. If an employee on FMLA leave fails to designate an absence, tardy, or leave early as FMLA leave, the absence, tardy or leave early, may be counted as an unexcused occurrence and therefore disciplinary action up to and including termination may occur.

What Forms are Required for the FMLA Process?

The following forms are used by A Plus Benefits to process an FMLA need:

FMLA Request Form– This form is used by the employee to request an FMLA Leave.
WH‐381 Notice of Eligibility and Rights & Responsibilities–
- This form is provided by the US Department of Labor, Wage and Hour Division and is used to notify the employee of their FMLA eligibility once the Request Form has been received. This form is to be completed within five business days to notify the employee of their eligibility status to take FMLA leave.
WH‐382 Designation Notice–
- This form is provided by the US Department of Labor, Wage and Hour Division and is

used to inform the employee of the specific expectations and obligations of the employee and explaining any consequences of a failure to meet the obligations. This notice may be accompanied with any other required certification form.

Medical Certification Forms– This form is either for the employee or an eligible family member of the employee to complete with their doctor.
2 Week Reminder Letter– This letter is a reminder letter that is sent to the employee on

approved FMLA that reminds the employee that their approved FMLA time is about to expire

and to contact their HR department if they are unable to return by the required date.

Return to Work/Fit for Duty Medical Certification (when needed)– this is a medical certification that states the employee is fit for duty and able to return to work (with or without work restrictions) following an approved FMLA leave.

How does Reinstatement work?

When an employee returns from FMLA leave, the employee must be restored to their original job, or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment.

What if an Employee Can Return to Work but on Light‐Duty?

If an employee is certified by a medical professional as able to return to work in a light‐duty job but is unable to return to the same or equivalent job, the employee has the option of declining to return and remaining on continuous unpaid FMLA leave until the 12‐week FMLA entitlement period is exhausted. This decision may result in the loss of workers’ compensation benefits if applicable.

Who Enforces FMLA?

The Department of Labor Wage and Hour Division investigates FMLA complaints.

What is the Process for FMLA Leave?

Check with your HR Department

Often as follows:

1. The employee fills out the FMLA Request Form and sends the completed form to A Plus Benefits HR Department.
2. The A Plus Benefits HR Department determines both employer and employee eligibility.

a. If not eligible, Benefits HR Department sends forms WH‐381 Notice of Eligibility and Rights & Responsibilities and WH‐382 Designation Notice to the employee explaining the reasons for not being eligible or approved. To be completed within 5 business days of receiving the FMLA Request Form.

b. If eligible, the A Plus Benefits HR Department sends form WH‐381 Notice of Eligibility and Rights & Responsibilities and the Medical Certification Forms to the employee. To be completed within 5 business days of receiving the FMLA Request Form.

c. The employee fills out the Medical Certification Form with their doctor and sends it back to the A Plus Benefits HR Department. To be completed within 15 days of receipt of the WH‐381 Notice of Eligibility and Rights & Responsibilities.

d. HR Department sends the WH‐382 Designation Notice Form to the employee explaining their approval for FMLA. To be completed within 5 business days of receiving the Medical certification forms.

e. HR Department sends the 2 Week Reminder Letter to the employee when the FMLA Leave is 2 weeks away from expiring detailing what the employee needs to do if more time is needed.

f. Employee returns to work.

How to handle the interaction of FMLA, ADA and Workers’ Compensation Laws:

FMLA Brief Overview:

The FMLA is a federal law that provides for 12 weeks of unpaid leave for an employee’s own or a family member’s serious health condition, for the birth or adoption of a child and for military exigencies. The law also provides 26 weeks for military caregiver leave. An employer must return an employee to the same or an equivalent position (with some exceptions). Leave may be taken in one block, intermittently or on a reduced schedule. To be eligible for FMLA leave, an employee must work for 12 months for an employer, work at least 1,250 hours in the 12 months prior to the start of the leave, and work at a worksite where 50 or more employees are employed by the employer within 75 miles.

Workers’ Compensation Brief Overview:

Workers’ compensation is generally a state‐run program that allows workers who were injured on the job to receive compensation while they are out of work. It generally does not provide any job protected leave, but an employer may not retaliate against an employee for filing a workers’ compensation claim. Workers’ compensation laws also minimize liability for employers. In some instances, workers compensation benefits (compensation) can be reduced if the injury involves willful disregard of safety rules or intoxication from alcohol or illegal drugs. Americans with Disabilities Act (ADA) Brief Overview: The ADA is a federal law that prevents employers from discriminating against employees or job applicants because they are a qualified individual with a disability. The ADA does not explicitly provide payment or leave rights to the employee. The ADA requires an employer to reasonably accommodate an employee or prospective employee with a disability, and leave may be considered a reasonable accommodation in certain situations. A disability is an impairment that substantially interferes with a major life function or activity. The definition of substantially interfering has been significantly broadened by the ADA Amendments Act, which require courts to construe the ADA broadly. The Act applies to employers with at least 15 employees. The ADA also contains an exception if the leave for reasonable accommodation causes an undue hardship for the employer. How Does Workers’ Compensation work with FMLA? The U.S. Department of Labor acknowledges that there are times where employees may be entitled to time off under FMLA and workers’ compensation laws concurrently. In situations where both the FMLA and workers’ compensation laws apply, employers must provide leave under whichever law provides the greater rights and benefits to employees. Therefore, employers cannot require an employee to take time off under FMLA instead of workers’ compensation if the employees injury makes them eligible for workers’ compensation benefits but they can run concurrent with one another.

Can an Employee be on Both FMLA and Workers’ Compensation?

Not only can the employee be on FMLA and workers comp, it is highly recommended that the two run concurrently. An employer may require an employee to use FMLA while on workers’ compensation when the employer is put on notice of an FMLA qualifying event. By running them concurrently, an employer minimizes the risk on an employee being away from work longer than they would otherwise be entitled. Example: An employee is injured at work and is absent for three months and is placed on workers’ compensation only. A few months later, the same employee requests to go on FMLA leave and needs to be absent for three months due to a separate non‐work-related medical need. Because FMLA was not run concurrent with the first injury, the employee now is allowed to be absent for six months and be protected. That can be burdensome for the business. If an employee uses all 12 weeks of FMLA leave and needs more time off, their job is no longer protected by FMLA leave and the employee may lose their benefit coverage. The workers’ compensation benefit status does not provide them with job protection.

Must an Employer Provide Benefits to Employees on Worker’s Compensation?

Under most state’s laws, the employer is not required to continue the employee’s benefits while receiving workers’ compensation benefits, but if workers’ compensation is running concurrently with FMLA, the employer is required to continue to provide benefits at the same level prior to leave.

How Does FMLA work with Americans with Disabilities Act (ADA)? If an employee exhausts the allotted 12 weeks of FMLA but still needs time off to recover, it is possible that the employee may be entitled to more time off under the ADA if the injury qualifies as for ADA protection. The EEOC has stated that additional time to recover is a reasonable accommodation. It has been said by the EEOC that an employer cannot have an auto‐terminate policy which means an employer cannot give an employee a specified maximum period of leave. Even if the leave period is more than the required 12 weeks under FMLA, if the employee does not return by that date they cannot be automatically terminated.

Rather, if an employee has exhausted his or her FMLA leave or was ineligible for FMLA leave, the employer needs to engage in the interactive process with the employee and find out if there are any accommodations the employee needs to return to work, including additional leave time.

Can an Employee have Both FMLA Leave and ADA Accommodations?

When applicable and in many cases, yes, they can and should be run concurrently.

Must an Employer Provide Benefits to Employees under the ADA?

The ADA does not generally require continuation of health coverage or other benefits during a leave of absence. However; under the ADA, an employer must continue health insurance coverage for an employee taking leave or working part‐time only if the employer also provides coverage for other employees in the same leave or part‐time status. The coverage must be on the same terms normally provided to those in the same leave or part‐time status. For this reason, it may be that the employee will be required to use both FMLA and ADA Leave to keep any benefit coverage.

For more information on FMLA, visit the US Department of Labor at:

https://www.dol.gov/general/topic/benefits-leave/fmla

This information was graciously provided by:

Deanna L Ames, SHRM-CP, PHR

Deanna is currently HR Generalist at Lutheran Family Services. She served 6 yrs on the CO Division of Insurance Consumer Insurance Council and is working with another board on training material for individuals on their rights in health care processes for the State.