Family and Medical Leave Act (FMLA)

Rights and Responsibilities

The Family Medical Leave Act (FMLA) of 1993 requires any employer with 50 or more employees to provide up to 12 weeks of unpaid, job-protected leave to eligible employees for certain family and medical reasons. After 12 months of employment, an employee becomes eligible for FMLA leave. The FMLA also requires that an employee must work at least 1,250 hours during the 12 months immediately before FMLA leave.

An employee may request FMLA leave for:

  1. The birth or adoption of a child
  2. Care of a newborn child
  3. Care of a spouse, child, or parent with a serious health condition
  4. Employee’s serious health condition.

Generally, a serious health condition means a condition requiring inpatient care, a condition requiring continuing treatment by a health-care provider, a condition resulting in incapacity of more than three days, or a chronic condition.

During a FMLA leave, the employer must continue to provide the employee with group health-care coverage. Upon completion of the FMLA leave, the employer must return the employee to the same job or to another job with equivalent pay and benefits.

Under certain circumstances, an employee may take intermittent leave or leave based upon a reduced work schedule. When an employee takes leave because of the birth or adoption of a child, that employee may take an intermittent or reduced-schedule leave, but only if the employer agrees.

When medically necessary, an employee may take intermittent leave or reduced-schedule leave to care for a sick family member or for an employee’s own serious health condition. In such cases, the FMLA requires the employee to provide certification by the health-care provider attesting the requested leave is medically necessary, as well as the expected duration and schedule of the leave.

How can an employer control the use of intermittent leave?

An employer can take four steps to control the use of intermittent leave:

  1. Transfer to an alternate position
  2. Reclassification
  3. Require cooperative scheduling of planned medical treatment
  4. Require medical certification

Transfer to an Alternate Position

If an employee seeks intermittent or reduced-schedule leave that is foreseeable based on planned medical treatment, the employer may require the employee to transfer temporarily to an alternate position for which the employee qualifies. The employee must receive equivalent pay and benefits, but the employer may alter responsibilities. The employer must take care not to discourage an employee from taking leave, and should transfer an employee only to better accommodate the employee’s need for recurring periods of leave.

Reclassification

An employer may reclassify an employee who seeks intermittent leave as part-time. If this option is chosen, the employee must continue to receive full-time pay and benefits, even if part-time employees are not eligible for benefits.

Once the employee’s need for intermittent leave ends, the employer must return the employee to their pre-leave position, or restore the employee to full-time status.

Requiring Cooperative Scheduling of Planned Medical Treatment

An employee taking foreseeable leave based on planned medical treatment is expected to consult with their employer, prior to scheduling the treatment, to create a schedule that best suits their respective needs. If the employee fails to do so, the employer may initiate discussions with the employee and require him or her to make reasonable effort to structure the leave in a way that minimizes the disruption to the employer’s business. This may include scheduling treatment during nonworking hours or during days or times that are less burdensome to the employer.

Requiring Medical Certification

Because employers determine which hours and days are available for intermittent leave, an employer may require an employee to provide medical certification to show that leave is medically necessary at the specific time requested. If the leave is not necessary at the requested time, an employer may require that an employee schedule leave at a more convenient time.

Must an employer accept the certification of an employee’s physician?

If an employee requests leave to care for the employee’s spouse, son, daughter or parent who has a serious health condition or because of the employee’s serious health condition, the employer may require that the leave request be supported by a medical certification from the employee’s or family member’s health-care provider.

The employer should provide a description of the essential functions of the employee’s job to the health-care provider. If the employer does not do so, the health-care provider’s certification may be based on the information provided by the employee about the essential functions of their job. The employer may require a second opinion, at the employer’s expense, “concerning any information certified... for such leave...” if it “has reason to doubt the validity of the certification.”

The employer may designate the physician for the second opinion. If the certification and the second opinion conflict, the employer may require a binding third opinion, at the employer’s expense, by a health-care provider jointly approved by the employer and the employee.

Upon return from FMLA leave, what can an employer do to ensure that the employee can perform the essential functions of his position?

When an employee seeks restoration to their former position, the employer may require the employee to receive certification from the employee’s health-care provider that the employee is able to resume employment. An employer must uniformly apply this practice to all similarly situated employees, that is, to all employees with the same or similar jobs and the same or similar serious health conditions.

Although the fitness for duty certification is provided by the employee’s physician, the employer may “clarify” the certification. This means that the employer may engage another physician, with the employee’s permission, to clarify the employee’s ability to return to work.

The physician may not request any additional information, and the clarification may address only the serious health condition for which FMLA leave was taken.