Last Updated on: Friday, August 13, 2010
Are all employees eligible to take FMLA leave?
Do the 12 months of service with the employer have to be continuous or consecutive?
Do the 1,250 hours include paid leave time or other absences from work?
How does an employer determine if an employee has worked 1,250 hours in a 12-month period?
How is the 12-month period calculated under FMLA?
If an employee has already used 12 weeks of FMLA leave in the past year for their own serious health condition, are they also entitled to another 12 weeks to care for a seriously ill family member, since it's for a different reason?
Are both male and female employees entitled to time off for the birth, foster care placement or adoption of a child? How may sick and vacation time be utilized?
Can an employee be terminated while out on FMLA leave?
Does the law guarantee paid time off for FMLA? (UPDATED)
Does Workers’ Compensation leave count against an employee’s FMLA leave entitlement?
Can the employer count time on maternity leave or pregnancy disability as FMLA leave?
Can the employer count leave taken due to pregnancy complications against the 12 weeks of FMLA leave for the birth and care of a child?
If an employer fails to tell an employee that the leave is FMLA leave, can the employer count the time the employee has already been off against the 12 weeks of FMLA leave? (UPDATED)
Who is considered an immediate "family member" for purposes of taking FMLA leave?
Can an employee take FMLA leave for visits to a physical therapist, if their doctor prescribes the therapy?
Does the employee have to provide the employer with medical records for leave due to a serious health condition?
Can an employer require an employee to return to work before they exhaust their FMLA leave?
Are there any restrictions on how the employee can spend their time while on leave?
Can an employer make inquiries about the employee’s leave during the employee’s absence? (UPDATED)
How often can an employer require an employee to recertify his or her need for FMLA leave? (NEW)
Can an employer refuse to grant an employee FMLA leave? (UPDATED)
Can an employee lose their job because they took FMLA leave?
Are there other circumstances in which an employer can deny an employee on FMLA leave reinstatement to their job?
Can an employer fire an employee for complaining about a violation of FMLA?
Under what circumstances is leave designated as FMLA leave and counted against the employee's total entitlement?
Can an employer count FMLA leave taken against a no-fault absentee policy?
Is an employee still eligible to receive a perfect attendance award if he/she uses FMLA leave? (NEW)
Georgia Tech’s FMLA policy says that an employee who has short term disability insurance does not have to use their accrued leave (sick/vacation) once they start receiving disability benefits. Could you provide some examples to explain this? (NEW)
Are all employees eligible to take FMLA leave?
No. Employees are eligible to take FMLA leave if they have worked for their employer (employer must be a “covered” employer as defined by the FMLA) for at least 12 months, and have worked at least 1,250 hours over the previous 12 months, and work at a location where at least 50 employees are employed by the employer within a 75-mile radius.
Georgia Tech is a covered employer.
Do the 12 months of service with the employer have to be continuous or consecutive?
No. The 12 months do not have to be continuous or consecutive; all time worked for the employer is counted, however service prior to a 7-year break in service is not counted unless the break was due to National Guard/Reserve military service or a written agreement exists stating the employer’s intention to rehire the employee after the break in service.
Do the 1,250 hours include paid leave time or other absences from work?
No. The 1,250 hours include only those hours actually worked for the employer. Paid leave and unpaid leave, including FMLA leave, are not included.
How does an employer determine if an employee has worked 1,250 hours in a 12-month period?
The employee’s individual record of hours worked would be used to determine whether 1,250 hours had been worked in the 12 months prior to the commencement of FMLA leave. As a rule of thumb, the following may be helpful for estimating whether this test for eligibility has been met:
- 24 hours worked in each of the 52 weeks of the year; or
- Over 104 hours worked in each of the 12 months of the year; or
- 40 hours worked per week for more than 31 weeks (over seven months) of the year.
How is the 12-month period calculated under FMLA?
Employers may select one of four options for determining the 12-month period:
- The calendar year;
- Any fixed 12-month "leave year" such as a fiscal year, a year required by state law, or a year starting on the employee’s "anniversary" date;
- The 12-month period measured forward from the date any employee’s first FMLA leave begins; or
- A "rolling" 12-month period measured backward from the date an employee uses FMLA leave.
Note: A single 12-month period for Military Caregiver Leave begins on the 1st day the employee takes military leave and ends 12 months later.
Georgia Tech uses the “rolling” year option.
If an employee has already used 12 weeks of FMLA leave in the past year for their own serious health condition, are they also entitled to another 12 weeks to care for a seriously ill family member, since it's for a different reason?
If the other family member is a covered military service member and the requirements for Military Caregiver leave are met – the answer is yes. In fact, the employee would get an additional 14 weeks to care for the injured service member. For all other situations, the answer is no. All FMLA-qualifying leave is cumulative and the federal regulations state that an employee may be off for up to a total of 12 workweeks in any 12 months because of the birth of a child and to care for the newborn child; because of the placement of a child with the employee for adoption or foster care; because the employee is needed to care for a family member (child, spouse, or parent) with a serious health condition; because the employee's own serious health condition makes the employee unable to perform the functions of his or her job; or because of any qualifying exigency arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on active duty, or has been notified of an impending call or order to active duty status, in the Armed Forces in a foreign country.
Are both male and female employees entitled to time off for the birth, foster care placement or adoption of a child? How may sick and vacation time be utilized?
Yes. Birth mothers may be entitled to time off for their own serious health condition (pregnancy – including prenatal care, medical incapacity related to pregnancy, and post-birth recovery), and may use accrued sick leave for such time off. Also reference Sick Leave Policy 2.13.
A husband may be entitled to time off to care for his pregnant wife (if there are periods of her pregnancy or post-birth recovery in which she is incapacitated and requires his care) and he may use accrued sick leave for such time off.
Beyond those circumstances, time off to make adoption arrangements, or to "bond" with a healthy newborn or newly-adopted or placed child, does not allow for use of accrued sick time; however, either parent must utilize accrued vacation time, or take time off without pay if no vacation time is available, for such a purpose. Such time must be taken within the 12 months immediately following the birth, adoption, or placement. Georgia Tech requires that such "bonding" time off be taken as a single continuous period rather than as intermittent leave.
Can an employee be terminated while out on FMLA leave?
An employer may not take any adverse action against an employee for taking FMLA leave; however, a personnel action/decision that would have happened if the employee had continued to work may happen while the employee is on FMLA leave.
For example, if an employer decides that a reduction-in-force is necessary and the employee taking FMLA leave legitimately falls within the group of employees to be laid off, the employee may be laid off even while taking FMLA leave. If the employee is laid off, the employer's obligations under FMLA stop as of the effective date of the layoff. Also, if it is discovered while an employee is out on FMLA leave that the employee is guilty of a serious policy violation, the employer may terminate the employee while they are out on FMLA leave.
The Office of Human Resources must be consulted before any adverse action is taken against an employee on FMLA leave.
Does the law guarantee paid time off for FMLA?
No. The FMLA only requires unpaid leave. However, the law allows an employee to elect – or the employer to require the employee – to use accrued paid leave, such as vacation or sick leave, for some or all of the FMLA leave period. When paid leave is substituted for unpaid FMLA leave, it may be counted against the 12-week FMLA leave entitlement if the employee is properly notified of the designation when the leave begins. Georgia Tech requires that employees use their accrued paid sick leave and/or vacation leave concurrently with FMLA leave before they go into an unpaid status. Exceptions: 1) If your FMLA leave is a result of an on-the-job injury and is covered under Workers’ Compensation, you have the option of taking unpaid leave even if you have sick or vacation leave available. 2) If an employee on FMLA leave has short term disability (STD) insurance, he or she may go into an unpaid leave status at any point once they begin receiving STD benefits, reserving any remaining accrued leave (sick/vacation) for use after the employee returns from leave. Please note that an employee must use their available accrued sick leave and/or vacation during the STD waiting period.
Does Workers’ Compensation leave count against an employee’s FMLA leave entitlement?
Yes. FMLA leave and Workers’ Compensation leave may run at the same time, provided the reason for the absence is due to a qualifying serious illness or injury and the employer appropriately notifies the employee that the leave will be counted as FMLA leave.
Can the employer count time on maternity leave or pregnancy disability as FMLA leave?
Yes. Pregnancy disability leave or maternity leave for the birth of a child would be considered qualifying FMLA leave for a serious health condition and may be counted in the 12 weeks of leave so long as the employer appropriately notifies the employee of the FMLA designation.
Can the employer count leave taken due to pregnancy complications against the 12 weeks of FMLA leave for the birth and care of a child?
Yes. If the employee (birth mother) has pregnancy complications and misses work due to such issues as mandated bed best, morning sickness, or other related pregnancy issues, time missed will be counted as part of the 12-week FMLA leave entitlement.
If an employer fails to tell an employee that the leave is FMLA leave, can the employer count the time the employee has already been off against the 12 weeks of FMLA leave?
Yes. The employer may retroactively designate leave as FMLA leave with appropriate notice to the employee provided that the employer's failure to timely designate leave does not cause harm or injury to the employee. For example, if an employer that was put on notice that an employee needed FMLA leave failed to designate the leave properly, but the employee's own serious health condition prevented him or her from returning to work during that time period regardless of the designation, an employee may not be able to show that the employee suffered harm as a result of the employer's actions. However, if an employee took leave to provide care for a son or daughter with a serious health condition believing it would not count toward his or her FMLA entitlement, and the employee planned to later use that FMLA leave to provide care for a spouse who would need assistance when recovering from surgery planned for a later date, the employee may be able to show that harm has occurred as a result of the employer's failure to designate properly. The employee might establish this by showing that he or she would have arranged for an alternative caregiver for the seriously-ill son or daughter if the leave had been designated timely. In all cases where leave would qualify for FMLA protections, an employer and an employee can mutually agree that leave be retroactively designated as FMLA leave.
Who is considered an immediate "family member" for purposes of taking FMLA leave?
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 regulations issued by the Equal Employment Opportunity Commission (EEOC) under the Americans with Disabilities Act (ADA).
Can an employee take FMLA leave for visits to a physical therapist, if their doctor prescribes the therapy?
Yes. FMLA permits an employee to take leave to receive "continuing treatment by a health care provider," which can include recurring absences for therapy treatments such as those ordered by a doctor for physical therapy after a hospital stay or for treatment of severe arthritis.
Does the employee have to provide the employer with medical records for leave due to a serious health condition?
No. The employee does not have to provide detailed diagnostic information or actual medical records. The employer may, however, request that, for any leave taken due to a serious health condition, the employee provide a medical certification from their healthcare provider confirming that a serious health condition exists.
Can an employer require an employee to return to work before they exhaust their FMLA leave?
Subject to certain limitations, an employer may deny the continuation of FMLA leave due to a serious health condition if the employee fails to fulfill any obligations to provide supporting medical certification. The employer may not, however, require the employee to return to work early by offering the employee a light duty assignment.
Are there any restrictions on how the employee can spend their time while on leave?
Employers with established policies regarding outside employment may uniformly apply those policies to employees on FMLA leave. Otherwise, the employer may not restrict an employee’s activities. The protections of FMLA will not, however, cover situations where the reason for leave no longer exists, where the employee has not provided required notices or certifications, or where the employee has misrepresented the reason for leave.
Can an employer make inquiries about the employee’s leave during the employee’s absence?
Yes, they may make inquiries of the employee. The employer may ask questions to confirm whether the leave needed or being taken qualifies for FMLA purposes, and may require periodic reports on the employee’s status and intent to return to work after leave. Also, if the employer wishes to obtain another opinion, the employee may be required to obtain additional medical certification at the employer’s expense, or rectification during a period of FMLA leave. The employer may also contact the employee’s health care provider, with the employee’s permission, for purposes of clarification and authentication of the medical certification (whether initial certification or recertification) after the employer has given the employee an opportunity to cure any deficiencies. To make such contact, the employer must use a health care provider, human resources professional, leave administrator, or management official. Under no circumstances, however, may the employee’s direct supervisor contact the health care provider. The inquiry may not seek additional information regarding your health condition or that of a family member.
How often can an employer require an employee to recertify his or her need for FMLA leave?
Typically, an employer may request recertification documentation no more often than every 30 days (except as indicated below) and only in connection with an absence by the employee, unless the medical certification indicates that the minimum duration of the condition is more than 30 days, in which case the employer must wait until that minimum duration expires before requesting a recertification. For example, if the medical certification states that an employee will be unable to work, whether continuously or on an intermittent basis, for three months, the employer must wait three months before requesting a recertification.
An employer may request recertification in less than 30 days if:
1) The employee requests an extension of leave;
2) Circumstances described by the previous certification have changed significantly (e.g., the duration or frequency of the absence, the nature or severity of the illness, complications). For example, if a medical certification stated that an employee would need leave for one to two days when the employee suffered a migraine headache and the employee's absences for his or her last two migraines lasted four days each, then the increased duration of absence might constitute a significant change in circumstances allowing the employer to request a recertification in less than 30 days. Likewise, if an employee had a pattern of using unscheduled FMLA leave for migraines in conjunction with his or her scheduled days off or weekends, then the timing of the absences also might constitute a significant change in circumstances sufficient for an employer to request a recertification more frequently than every 30 days;
3) The employer receives information that casts doubt upon the employee's stated reason for the absence or the continuing validity of the certification. For example, if an employee is on FMLA leave for four weeks due to the employee's knee surgery, including recuperation, and the employee is seen playing in a softball game during the employee's third week of FMLA leave, such information might be sufficient to cast doubt upon the continuing validity of the certification allowing the employer to request a recertification in less than 30 days.
In all cases, the employer may request a recertification of a medical condition every six months in connection with an absence by the employee.
Can an employer refuse to grant an employee FMLA leave?
An employee may not be denied FMLA leave provided:
- The employee is an "eligible" employee;
- The purpose of the leave meets FMLA’s definition of a qualifying reason;
- The employee adheres to the FMLA notice and certification requirements; and
- The employee has not exhausted their FMLA leave entitlement for the year
Can an employee lose their job because they took FMLA leave?
Generally, no. It is unlawful for any employer to interfere with or restrain or deny the exercise of any right provided under the Family & Medical Leave Act. Employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions; nor can FMLA leave be counted under "no fault" attendance policies. Under limited circumstances, an employer may deny reinstatement to work - but not the use of FMLA leave - to certain highly paid, salaried ("key") employees.
Are there other circumstances in which an employer can deny an employee on FMLA leave reinstatement to their job?
In addition to denying reinstatement in certain circumstances to "key" employees, employers are not required to continue FMLA benefits or reinstate employees who would have been laid off or otherwise had their employment terminated had they continued to work during the FMLA leave period as, for example, due to a general layoff. Employees who give unequivocal notice that they do not intend to return to work lose their entitlement to FMLA leave. Employees who are unable to return to work and have exhausted their 12 weeks of FMLA leave in the designated "12 month period" no longer have FMLA protections of leave or job restoration.
Under certain circumstances, employers who advise employees experiencing a serious health condition that they will require a medical certificate of fitness for duty to return to work may deny reinstatement to an employee who fails to provide the certification, or may delay reinstatement until the certification is submitted.
Can an employer fire an employee for complaining about a violation of FMLA?
No. Nor can the employer take any other adverse employment action on this basis. It is unlawful for any employer to discharge or otherwise discriminate against an employee for opposing a practice made unlawful under FMLA.
Under what circumstances is leave designated as FMLA leave and counted against the employee's total entitlement?
It is the employer's responsibility to designate leave taken for an FMLA reason as FMLA leave. The designation must be based upon information furnished by the employee. Leave should not be designated as FMLA leave after the leave has been completed and the employee has returned to work, except if:
- The employer is awaiting receipt of the medical certification to confirm the existence of a serious health condition;
- The employer was unaware that leave was for an FMLA reason, and subsequently acquires information from the employee such as when the employee requests additional or extensions of leave; or,
- The employer was unaware that the leave was for an FMLA reason, and the employee notifies the employer within two days after return to work that the leave was FMLA leave.
Can an employer count FMLA leave taken against a no-fault absentee policy?
No.
Is an employee still eligible to receive a perfect attendance award if he/she uses FMLA leave?
Employers may deny a “perfect attendance” award to an employee who does not have perfect attendance because of taking FMLA leave as long as it treats employees taking non-FMLA leave in an identical way.
Georgia Tech’s FMLA policy says that an employee who has short term disability insurance does not have to use their accrued leave (sick/vacation) once they start receiving disability benefits. Could you provide some examples to explain this?
1) Mary, a full time exempt employee, has STD insurance and 120 hours of sick time accrued when she goes out on FMLA leave on 8/2/10. She is required to use 80 hours of that sick time during the 2-week waiting period before her STD benefits begin. Once her STD benefits begin, Mary chooses to immediately go into an unpaid status and reserve her remaining 40 hours of sick time for use after she returns from leave. Her effective date of leave on the PSF would be 8/16/10 (the date she begins her unpaid leave status).
2) Sue, a full time exempt employee, has STD insurance and 120 hours of sick time accrued when she goes out on FMLA leave on 8/2/10. She is required to use 80 hours of that sick time during the 2-week waiting period before her STD benefits begin. Once her STD benefits begin, Sue decides to continue to use sick time for an additional 24 hours and then goes into an unpaid status, reserving the remaining 16 hours for use after she returns from leave. Her effective date of leave on the PSF would be 8/19/10.
3) John, a full time non-exempt employee, has STD insurance and 60 hours of sick time and 10 hours of vacation time accrued when he goes out on FMLA leave on 8/2/10. He is required to use his 60 hours of sick time and then the 10 hours of vacation time during the 2-week STD waiting period. Since John exhausts all of his accrued leave, he then goes into an unpaid status prior to the start of his STD benefits. His effective date of leave on the PSF would be 8/12/10.
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