What is the Family & Medical Leave Act (FMLA) of 1993?
Guarantees 12 weeks of protected leave within specified 12 month period to eligible employees…
- Must have been employed at least 12 months AND
- Need not be consecutively
- Must have worked 1250 hours in the previous 12 months
- Regular hours and hours of overtime count; vacation, holidays, sick days or no-pay time does not count.
- Only hours actually worked count. If someone was officially on-call, those hours are counted.
- For FMLA protection, 12 weeks of leave ≠ 480 hours
- The County uses a "rolling 12 months" to calculate FMLA leave
What are the different types of leave under FMLA?
- Medical – for employee's own serious health condition
- Family – to care for employee's parent, spouse, or child with a serious health condition
- Parental – leave following birth or adoption or placement of foster child into employee's family to care for a "well child"
A female employee who is pregnant will start out as "medical" and change to "parental" after the birth of the child. The medical part of leave for childbirth generally ends 6 weeks after the baby is born, when the women is cleared by her doctor. After that, the leave is "parental."
- Medical or Family leave may be taken fulltime or intermittently (including reduced schedule). Parental leave is fulltime and applies to either parent. Intermittent and reduced schedule leave may be used after the birth to be with a healthy newborn child only if the employer agrees.
What does FMLA protect?
- Job – Employee must be restored to their own job (or virtually identical job)
- Benefits – Employee only pays the portion of benefits normally taken from their check, even in a no-pay situation – this can be worth hundreds of dollars if you are in a no-pay status while on FMLA. If not on FMLA, you would have to pay several hundred dollars each month you are out to maintain insurance coverage.
- No loss- in position, pay or benefits, including awards or payments based on perfect attendance
Why was FMLA passed?
FMLA is a very employee-friendly, protective law. The protections it gives are very valuable – more than any other employment law.
What is a "serious health condition"?
The US Department of Labor (DOL) says:
- Hospital Care – In-patient care for any length
- Pregnancy or Prenatal Care – Any incapacity due to pregnancy
- Absence plus Treatment – Incapacity of more than 3 consecutive calendar days that also involves either:
- Provider visit + additional treatment (i.e. lab work, prescription, therapy), OR
- Two or more visits to a healthcare provider
- Not all conditions require a 3-day absence:
- Chronic Conditions Requiring Treatment (i.e. severe asthma, sever migraine headaches, diabetes, MS)that may not cause 3 days of incapacity at a time
- Permanent/Long Term Conditions (i.e. terminal cancer) where treatment may not be effective but the employee can continue working, at least for a while but needs to be out now and then
- Multiple Treatments for Non-Chronic Conditions, for restorative surgery or a condition that would likely cause incapacity of more than 3 days in the absence of treatment (e.g. kidney dialysis)
What is not covered as a "serious health condition"?
- Routine visits
- Elective, cosmetic surgery
- Short-term illnesses (3-days or less)
- Longer absences when the employee uses only "home remedies" like taking aspirin, antihistamines, salves, and other OTC medicines, rest, drinking lots of fluids, etc.
Can I choose whether I want to go on FMLA or not?
The Employer has the responsibility under Federal Guidelines to place the employee on protected leave if the employer has reason to believe the absence is due to a serious health condition. Although the leave status protects the employees position under federal guidelines, you as the employee can choose whether or not to certify the protected leave.
What is not covered under Family Care Leave?
- When you are not needed to care for the family member
- If your adult child is not incapacitated (e.g. spending time helping your pregnant daughter take care of her other children after the baby is born and/or spending time with your new grandchild)
What are my responsibilities under FMLA?
- Let someone know when your absences are due to medical problems – either your own or your family member's
- You can tell your supervisor, your department's FMLA Rep, and Employee Health Services.
- Please don't give medical details.
- Give at least 30 days notice of the need for leave, if possible, to allow your supervisor to arrange to cover your workload.
- You need to make sure your (or your family member's) healthcare provider faxes a MEDICAL CERTIFICATION to Employee Health Services (EHS) usually within 15 days – No one but EHS sees your medical details
- For your own condition, we are looking for the doctor to tell us that you have a serious health condition and are not able to work, and for how long you are expected to be out
- For your family member's condition, we need their doctor to tell us that they have a serious health condition, and also that you are needed to provide care for them, and how often or for how long
- One thing that won't qualify under Family Care leave is if your daughter has a baby and you are helping her out with her other children. You must be caring for her because she is incapacitated.
- Complete an FMLA Leave Request form for every related absence, not matter how or if you will be paid – this is your official record of protected leave in case of questions later (Forms can be found in your department or on HR website)
- Keep your supervisor in the loop about your return-to-work date, especially if something changes. You don't have to share medical details.
- Your doctor must send a Return-to-Work Certification to Employee Health Services (EHS) at least the weekday prior to when you report for duty.
- If limitations are involved, extra lead time may be needed
- Until you are medically cleared by your doctor and EHS has notified your department, you will not be allowed to report for work
- When returning to work from Intermittent Medical FMLA or Family Leave, no clearance is needed
- Women must be medically cleared prior to returning form Medical/Parental Leave
- You must be able to perform the essential functions of your job upon your return. If you can't, then you will remain out.
- If Work Comp/FMLA – employee may return to Alternative Duty
- If personal/FMLA – If employee is released with limitations/restrictions, Employee Health Services will notify your department to have them advise if the essential functions of the position can be accomplished with the limitations/restrictions stated.
- If you are on Intermittent Leave, you are expected to work with the department when possible to schedule leave so there is a minimum of disruption to the workplace
- Schedule doctor visits outside of work hours when possible
- We know that sometimes that won't be possible, but you need to try
- Don't confuse FMLA with how you are paid. FMLA relates to the REASON for your leave. You can be paid many different ways, all depending on your own accruals or if you have purchased Short-Term Disability. Or, you could be without pay.
How do I get paid when I'm on FMLA?
FMLA is not a paid leave law. That means if you don't have accruals to use, in most cases, you won't be paid while you are out.
- If you have accruals, they are used first – usually sick, then vacation time
- Once you have used up all sick and vacation time, you will be placed in a no-pay status
- Have purchased the County's Short-Term Disability insurance, you may choose to use that instead of your accruals. You use accruals during the 7-day elimination period, and then you are placed in a no-pay status and all of your "pay" will be coming from the insurance company.
- Are out due to a Workers' Comp injury, you use accruals until the indemnity benefits are payable. This is usually after one workweek. Workers' Comp allows the employee to choose whether or not to supplement their indemnity pay with accruals.
Compensatory time may not be used while you are on FMLA.
What if I need medical leave and I haven't worked here long enough for FMLA?
Departments have the option to grant a Leave of Absence (LOA) for medical reasons, BUT:
- LOA does not carry the protections of the FMLA for job, benefits, or attendance
- You may be required to get a Certification and a Medical Clearance