The Family and Medical Leave Act (FMLA) became effective on August 5,
1993. The Secretary of Labor has issued regulations to implement the
FMLA. This "Guide to Compliance" begins by summarizing those
regulations, explaining the basic provisions of the new law, and the rights
and responsibilities of affected employers and employees. After this
summary of the FMLA's requirements, specific questions are addressed. The
information provided in response to the questions posed below, or the
regulations themselves, will provide greater detail on how the law works.
 See the Federal Register dated June 4, 1993, Vol. 58, No. 106, pages
31794-31839. Similar provisions also apply to most federal and
Congressional employees, which are administered by the U.S. Office of
Personnel Management (OPM) or the Congress.
The Family and Medical Leave Act was enacted on February 5, 1993.
The new law is effective on August 5, 1993, for most employers. If a
collective bargaining agreement (CBA) is in effect on that date, the Act
becomes effective on the expiration date of the CBA or February 5, 1994,
whichever is earlier. This delay in the effective date applies only to
employees covered by a CBA in effect on August 5, 1993, and not for example
to non-bargaining unit employees.
The Wage and Hour Division of the U.S. Department of Labor's Employment
Standards Administration administers and enforces FMLA for all private,
State and local government employees, and some federal employees.
FMLA entitles eligible employees to take up to 12 weeks of unpaid, job-
protected leave each year for specified family and medical reasons. An
eligible employee's right to FMLA leave begins on August 5, 1993. Any
leave taken before that date does not count as FMLA leave. However, events
qualifying under the Act for FMLA leave purposes (e.g., the birth of a
child) occurring before August 5, 1993, still entitle eligible employees to
the benefits of FMLA on and after August 5, 1993.
The new law contains provisions relating to employer coverage; employee
eligibility for the benefits of the law; entitlement to leave, maintenance
of health benefits during leave, and job restoration after leave; notice
and certification of the need for FMLA leave; and protections for employees
who request or take FMLA leave. In addition, the law includes certain
employer recordkeeping requirements.
PURPOSES OF THE FMLA
The FMLA allows employees to balance their work and family life by taking
reasonable unpaid leave for certain reasons. The FMLA is intended to
balance the demands of the workplace with the needs of families, to promote
the stability and economic security of families, and to promote national
interests in preserving family integrity. The FMLA seeks to accomplish
these purposes in a manner that accommodates the legitimate interests of
employers, and which minimizes the potential for employment discrimination
on the basis of sex, while promoting equal employment opportunity for men
The enactment of the FMLA was predicated on two fundamental concerns the
needs of the U.S. workforce and the development of high-performance
organizations. Increasingly, American children and growing numbers of the
elderly are dependent on working family members who spend long hours on the
job. When family emergencies arise, requiring employees to attend to their
seriously-ill children or parents, or to newly-born or adopted infants, or
even to their own serious illness, workers need reassurance that they will
not need to choose between their job security and meeting their personal
and family obligations or tending to vital needs at home.
FMLA applies to all:
* public agencies, including State, local and federal employers, and local
education agencies (schools); and,
* private sector employers who employ 50 or more employees for at least 20
workweeks in the current or preceding calendar year and who are engaged in
commerce or in any industry or activity affecting commerce including joint
employers and successors of covered employers.
For FMLA purposes, most federal and Congressional employees are under the
jurisdiction of the U.S. Office of Personnel Management (OPM) or the
To be eligible for FMLA benefits, an employee must:
(1)work for a covered employer;
(2)have worked for the employer for at least a total of 12 months;
(3)have worked at least 1,250 hours over the prior 12 months; and,
(4)work at a location where at least 50 employees are employed by the
employer within 75 miles.
A covered employer must grant an eligible employee up to a total of 12
work-weeks of unpaid leave during any 12-month period for one or more of
the following reasons:
* for the birth or placement of a child for adoption or foster care;
* to care for an immediate family member (spouse, child, or parent) with a
serious health condition; or,
* to take medical leave when the employee is unable to work because of a
serious health condition.
Spouses employed by the same employer are jointly entitled to a combined
total of 12 workweeks of family leave for the birth or placement of a child
for adoption or foster care, and to care for a parent (but not a parent
"in-law") who has a serious health condition.
Leave for birth or adoption (including foster care placement) must conclude
within 12 months of the birth or placement.
Intermittent Leave Under some circumstances, employees may take FMLA
leave intermittently which means taking leave in blocks of time, or by
reducing their normal weekly or daily work schedule.
Where FMLA leave is for birth or placement for adoption or foster care, use
of intermittent leave is subject to the employer's approval.
FMLA leave may be taken intermittently whenever it is medically necessary
tocare for a seriously ill family member, or because the employee is
seriously ill and unable to work. If the need for intermittent leave is
foreseeable based on planned medical treatment, the employee is responsible
for scheduling the treatment in a manner that does not unduly disrupt the
employer's operations, subject to the approval of the health care provider.
In such cases, the employer may also transfer the employee temporarily to
an alternative job with equivalent pay and benefits that better
accommodates recurring periods of leave than the employee's regular job.
Substitution of Paid Leave Subject to certain conditions, employees or
employers may choose to use or require the use of accrued paid leave (such
as sick or vacation leave) to cover some or all of the otherwise unpaid
The employer is responsible for designating if paid leave used by an
employee counts as FMLA leave, based on information provided by the
employee. In no case can an employee's paid leave be credited as FMLA
leave after the leave has been completed.
Serious Health Condition "Serious health condition" means an illness,
injury, impairment, or physical or mental condition that involves:
* any period of incapacity or treatment connected with inpatient care
(i.e., an overnight stay) in a hospital, hospice, or residential medical
* any period of incapacity requiring absence of more than three calendar
days from work, school, or other regular daily activities that also
involves continuing treatment by (or under the supervision of) a health
care provider; or,
* continuing treatment by (or under the supervision of) a health care
provider for a chronic or long-term health condition that is incurable or
so serious that, if not treated, would likely result in a period of
incapacity of more than three calendar days, and for prenatal care.
Health Care Provider Health care providers who qualify under the
regulations to provide certification of a serious health condition for an
employee or an immediate family member include:
* doctors of medicine or osteopathy authorized to practice medicine or
surgery (as appropriate) by the State in which the doctor practices; or,
* podiatrists, dentists, clinical psychologists, optometrists, and
chiropractors (limited to treatment consisting of manual manipulation of
the spine to correct a subluxation as demonstrated by X-ray to exist)
authorized to practice in the State and performing within the scope of
their practice under State law; or,
* nurse practitioners and nurse-midwives authorized to practice under State
law and performing within the scope of their practice as defined under
State law; or,
* Christian Science practitioners listed with the First Church of Christ,
Scientist in Boston, Massachusetts.
MAINTENANCE OF HEALTH BENEFITS
A covered employer is required to maintain group health insurance coverage
for an employee on FMLA leave whenever such insurance was provided before
the leave was taken, and on the same terms as if the employee had continued
Where appropriate, arrangements will need to be made for employees taking
unpaid FMLA leave to pay their share of health insurance premiums while on
leave. For example, if the group health plan involves co-payments by the
employer and the employee, an employee on FMLA leave must continue making
insurance premium payments to maintain insurance coverage, as must the
employer. The employee and employer need to work out the method for the
employee to pay his or her share of health insurance premiums while on
unpaid FMLA leave.
An employer's obligation to maintain health benefits under FMLA will stop
if and when an employee informs the employer of an intent not to return to
work at the end of the leave period, or if the employee fails to return to
the FMLA leave entitlement is used up.
In some instances, the employer may recover premiums it paid to maintain
health insurance coverage for an employee who fails to return to work from
Other Benefits Certain types of earned benefits, such as seniority, need
not continue to accrue during periods of unpaid FMLA leave. For other
benefits, such as elected life insurance coverage, the employer and the
employee need to make arrangements so that the benefits may be maintained
during periods of unpaid FMLA leave. Except for accrued or earned benefits
(such as seniority), the employee must be restored to the same benefits
upon return from FMLA leave as if the employee had continued to work the
entire FMLA leave period. Use of FMLA leave cannot result in the loss of
any benefit that accrued before the employee's leave began. Accordingly,
an FMLA leave period cannot be counted as a break in service for purposes
of vesting or eligibility to participate in benefit programs.
Upon return from FMLA leave, an employee must be restored to his or her
original job, or to an equivalent job with equivalent pay, benefits, and
other employment terms and conditions.
In addition, an employee's use of FMLA leave cannot result in the loss of
any employment benefit that the employee earned or was entitled to before
using FMLA leave.
"Key" Employee Exception Under specified and limited circumstances where
restoration to employment will cause substantial and grievous economic
injury to its operations, the employer may refuse to reinstate certain
highly-paid "key" employees after using FMLA leave during which health
benefits are maintained. In order to do so, the employer must:
* notify the employee of his/her status as a "key" employee in response to
the employee's notice of intent to take FMLA leave;
* notify the employee as soon as the employer decides it will deny job
restoration and explain the reasons for this decision;
* offer the employee a reasonable opportunity to return to work from FMLA
leave after giving this notice; and,
* make a final determination as to whether reinstatement will be denied at
the end of the leave period if the employee then requests restoration.
A "key" employee is a salaried "eligible" employee who is among the highest
paid ten percent of employees within 75 miles of the work site.
NOTICE AND CERTIFICATION
Employees seeking to use FMLA leave may be required to provide:
* 30-day advance notice of the need to take FMLA leave when the need is
* medical certifications supporting the need for leave due to a serious
health condition affecting the employee or an immediate family member;
* second or third medical opinions and periodic recertification, at the
* periodic reports during FMLA leave on the employee's status and intent
to return to work; and,
* a "fitness-for-duty" certification to return to work.
When leave is needed to care for an immediate family member or the
employee's own illness and is for planned medical treatment, the employee
must attempt to schedule treatment so that it will not unduly disrupt the
Covered employers must post a notice approved by the Secretary of Labor
explaining rights and responsibilities under FMLA. An employer that
willfully violates this posting requirement may be subject to a fine of up
to $100 for each separate offense.
In addition, covered employers are obliged to provide information to their
employees about their rights and responsibilities under FMLA, including
specific information in response to an employee's notice of the need for
FMLA leave regarding just what will be required of the employee and what
might happen in certain circumstances, such as if the employee fails to
return to work from FMLA leave.
FMLA makes it unlawful for any employer to interfere with, restrain, or
deny the exercise of any right provided by this law. It is also unlawful
for an employer to discharge or discriminate against any individual for
opposing any practice, or because of involvement in any proceeding, related
FMLA will be enforced by the Wage and Hour Division of the U.S. Labor
Department's Employment Standards Administration. This agency will
investigate complaints of violations. If violations cannot be
satisfactorily resolved, the Department may bring action in court to compel
An eligible employee may bring a private civil action against an employer
Special rules apply to employees of local education agencies. Generally,
these rules provide for FMLA leave to be taken in blocks of time when the
leave is needed intermittently or when leave is required near the end of a
school term (semester).
Salaried executive, administrative, and professional employees of covered
employers who meet the Fair Labor Standards Act (FLSA) criteria for
exemption from minimum wage and overtime under Regulations, 29 CFR Part
541, do not lose their FLSA-exempt status by using any unpaid FMLA leave.
This special exception to the "salary basis" requirements for FLSA's
exemption extends only to "eligible" employees' use of leave required by
The FMLA does not affect any other federal or State law which prohibits
discrimination. It does not supersede any State or local law which
provides more generous family or medical leave protection. Nor does it
affect an employer's obligation to provide greater leave rights under a
collective bargaining agreement or employment benefit plan. The FMLA also
encourages employers to provide more generous leave rights.
Q: Does the law guarantee paid time off?
No. FMLA leave is generally unpaid leave. However, in certain
circumstances the use of accrued paid leave such as vacation or sick
leave may be substituted for the unpaid leave required by the law.
Q. How much unpaid leave am I entitled to?
If you are an "eligible" employee of a covered employer, you are entitled
to 12 weeks of leave for certain family and medical reasons during a 12-
Q: Am I entitled to any paid leave while on FMLA leave?
The law permits you to substitute accrued paid leave under certain
conditions, or your employer may require you to substitute paid leave.
Q: What if an employer already provides paid leave for the purposes covered
FMLA is intended to encourage generous family and medical leave policies.
For this reason, the law does not diminish more generous existing leave
policies or laws, though employers are entitled to conform their employment
policies and practices with the FMLA's requirements.
Q: Who is considered a "family member" for purposes of taking FMLA leave?
An employee's spouse, son or daughter, and parents are immediate family
members for purposes of FMLA. The term "parent" does not include a parent
Q: Does FMLA leave have to be taken in whole days or whole weeks, or in one
continuous block of time?
The FMLA permits leave for birth or placement for adoption or foster care
to be taken intermittently that is, in blocks of time or by reducing the
normal weekly or daily work schedule subject to approval by the employer.
Leave for a serious health condition may be taken intermittently when
Q: Is there a limit to the number of times FMLA leave can be taken in one
No. An employee is entitled to take up to 12 weeks of leave in a 12-month
period for any of the family and medical reasons that qualify for FMLA
leave, without limitation.
Q: Can I take FMLA leave for visits to a therapist, if my doctor prescribes
Yes. FMLA permits you to take leave to receive "continuing treatment by a
health care provider," which can include recurring absences for therapy
treatments ordered by a doctor such as, for example, physical therapy after
a hospital stay, or for treatment of severe arthritis. "Continuing
treatment" includes a single visit to a health care provider that results
in a regimen of continuing therapy under the supervision of the health care
Q: Are there any employees who are not covered by this law?
Yes. It's been estimated that about 60 percent of U.S. workers (and about
95 percent of U.S. employers) are not covered by the law. To be eligible
for FMLA benefits, an employee must: (1) work for a covered employer; (2)
have worked for the employer for at least a total of 12 months; (3) have
worked at least 1,250 hours over the prior 12 months; and, (4) work at a
location where at least 50 employees are employed by the employer within 75
Q: What about spouses who work for the same employer?
If a husband and wife work for the same employer, they may be limited to a
combined total of 12 weeks of FMLA leave in a 12-month period for the birth
of a child, placement of a child for adoption or foster care, or the care
of a parent with a serious health condition.
Q: What do I have to do to request FMLA leave from my employer?
You may be required to provide your employer with 30 days advance notice
when the need for leave is "foreseeable." When such an advance notice is
not possible or the need for the leave cannot be foreseen, you must give
your employer notice as soon as "practicable."
Q: What kind of proof is required for my illness or that of an immediate
You may be required to submit documentation called a medical
certification from the health care provider who is treating you or your
immediate family member.
Q: Can my employer require additional proof?
Your employer may require you to obtain additional medical certification
from a health care provider of the employer's choice, and at the employer's
Q: Can my employer require me to return to work before I exhaust my leave?
Subject to certain limitations, your employer may deny the continuation of
FMLA leave due to a serious health condition if you fail to fulfill
obligations to provide supporting medical certification as required by the
Q: Are there any restrictions on how I spend my time while on leave?
Generally no, provided the leave is taken for a legitimate family or
medical reason and all appropriate notice and certification requirements
are met. However, employers with established policies regarding outside
employment while on paid or unpaid leave may uniformly apply this policy to
employees on FMLA leave.
Q: Can my employer make inquiries about my leave during my absence?
Yes, but only to you. Your employer may have reason to confirm whether the
leave needed or being taken qualifies for FMLA purposes, and may require
periodic reports on your status and intent to return to work after leave.
Also, if the employer has reason to doubt the validity of a medical
certification or wishes to obtain another opinion, you may be required to
obtain additional medical certification at the employer's expense, or
recertification during a period of unpaid FMLA leave.
Q: Can my employer refuse to grant me FMLA leave?
If you are an "eligible" employee who has met FMLA's notice and
certification requirements (and you have not exhausted your FMLA leave
entitlement for the year) you may not be denied FMLA leave.
Q: Will I lose my job if I take 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 law.
However, an employer may deny reinstatement to work but not the use of
FMLA leave or maintenance of health insurance coverage during the leave
to certain highly-paid salaried ("key") employees under certain
Q. Are there other circumstances in which my employer can deny me my job
after using FMLA leave?
In addition to denying reinstatement in certain circumstances to "key"
employees, employers are not required to reinstate employees who would have
been laid off or otherwise had their employment terminated had they
continued to work during the period leave was used (for example, employees
hired for a specific term of employment that expires). Also, 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 such a certificate until it is provided.
Q: Can my employer fire me 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
Q: Will I be allowed to return to my same job after my leave?
Generally, yes. Ordinarily you will be restored to the same position you
held prior to the leave, with the same pay and benefits, if the position
remains available. You may be restored to an "equivalent position" rather
than the position you held before taking leave if the previous position is
not available. An equivalent position must have equivalent pay, benefits,
and terms and conditions of employment as the original job.
Q: Do I lose all my benefits when I take unpaid FMLA leave?
Your employer is required to maintain health insurance coverage on the same
terms it was provided before the leave commences, as if you continued to
work. In addition, the use of FMLA leave cannot result in the loss of any
employment benefit that accrued prior to the start of your leave. Certain
other earned benefits, such as seniority, do not need to continue to accrue
during a period of unpaid FMLA leave. And for still other kinds of
benefits, such as elected life insurance coverage, arrangements may need to
be made between you and your employer so that they are continued during a
period of FMLA leave. With the sole exception of accrued or earned
benefits such as seniority, unless you elect otherwise, you must be
restored to the same benefits upon return from FMLA leave as if you had
continued to work during the period of the leave.
Q: Are there any differences in how the law applies to private and public
sector employees or employers?
The 50 employee coverage test does not apply to public sector employers or
to public or private education agencies (schools). However, the public
agency or school system must employ 50 employees within a 75mile area
around the work site in order for an employee to be "eligible" and entitled
to FMLA benefits.
Q: Are there any special rules that apply to any groups of employees?
Special rules apply to instructional employees of "local educational
agencies," including public school boards and elementary and secondary
schools under their jurisdiction, and private elementary and secondary
schools. Generally, these rules provide for FMLA leave to be taken in
blocks of time when the leave is needed intermittently or is required near
the end of a school term.
Q: What if my employer does not know about the Family and Medical Leave
Your employer may contact the nearest office of the Wage and Hour Division,
Employment Standards Administration, of the U.S. Department of Labor for
information and guidance.
Q: What if I believe my employer is violating the law?
You have the choice of filing, or having another person file on your
behalf, a complaint with the Employment Standards Administration, Wage and
Hour Division, or you can elect to file a private lawsuit.
For more information, please contact the nearest office of the Wage and
Hour Division, listed in most telephone directories under U.S. Government,
Department of Labor, Employment Standards Administration.
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