What does FMLA do?

FMLA allows you to take leave from work if you are dealing with a serious health condition that is impacting your ability to function and you and your provider decide it is important for your health to take leave to address it. Here is some information about FMLA. This is not legal advice but may be helpful when navigating your options.

FMLA is the Family and Medical Leave Act. It is a federal worker protection law. It allows qualifying employees to have up to 12 workweeks of unpaid but job-protected leave in 12-month period
- FMLA may be unpaid or used at same time as employer-paid leave (such as paid sick leave)
  - You may have to utilize your existing accrued time off
  - If you have paid into short term disability, you can use this to receive a percentage of salary while on qualifying leave
- You must be restored to the same or nearly equivalent position when you return to work
It also requires that your group health benefits be continued during the approved leave
It applies to these employers:
- Private-sector employers who employ 50 or more employees in 20 or more workweeks in either the current calendar year or previous calendar year
- Public agencies (including Federal, State, and local government employers, regardless of the number of employees)
- Local educational agencies (including public school boards, public elementary and secondary schools, and private elementary and secondary schools, regardless of the number of employees)
Employees are potentially eligible if they have worked for the above type of employer:
- For at least 12 months
- At least 1250 hours over past 12 months
- Work at a location where the company employs 50 or more employees within 75 miles (if private employer)

These are Qualifying Reasons for FMLA:

For the birth and care of the newborn child of an employee
For placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement
To care for an immediate family member (spouse, child, or parent) with a serious health condition
To take medical leave when the employee is unable to work because of a serious health condition
- What is a serious health condition?
  - An illness, injury, impairment, or physical or mental condition that involves either inpatient care or continuing treatment by a health care provider
  - Generally, it involves a period of incapacity. This is when you are unable to work, attend school, or complete regular daily activities due to serious health condition, due to treatment of it, or for recovery from the condition
Military family leave:
- Qualifying exigency leave- leave for certain reasons related to a family member’s foreign deployment
- Military caregiver leave- Up to 26 workweeks of military caregiver leave during a single 12-month period
  - Leave when a family member is a current servicemember or recent veteran with a serious injury or illness

Eligible employee must be the servicemember’s spouse, son, daughter, parent or next of kin

Types of FMLA Leave

Intermittent or reduced schedule leave
- Can be as needed for treatment- i.e. chemotherapy, psychotherapy, doctor’s visits, physical therapy
- Can be reduced schedule
- If used for bonding with a newborn or newly placed child, this requires employer agreement

Continuous leave: Leave that is for full, continuous block of time

Using FMLA and The Process:

You must provide notice to your employer as soon as possible and practical
Employers may ask for information from the health care provider before approving FMLA leave. They must allow 15 calendar days for information to be provided
- It is important that you ensure that provider receives this request and agrees to provide supporting documentation. It is best to have conversation with your provider prior to submitting FMLA ensuring they will support your need for leave. This may require a visit and is up to the provider’s discretion.
- The information on the certification must be sufficient to support need for leave, but diagnosis is not required
- Your employer cannot require you to provide certification for leave to bond with newborn child or a child placed for adoption or foster care
- In some situations, such as if the health care provider cannot complete certification information in time given, employees must be allowed additional time

Your employer may require certification that includes the following information:
- Contact information for the certifying health care provider
- Date serious health condition began and how long anticipated to last
- Medical facts- symptoms, hospitalizations, provider visits
- Supporting information that you cannot perform essential functions of the job
- If for family member, supporting information that family member requires care and details as to when and how long leave is needed
- For intermittent leave, how much time is needed for each absence, how often these may occur (ie how many times a month) and why medically this leave is needed
- A diagnosis may be provided but not required
- Genetic tests or information about family member’s disease should not be included in certification
- No specific certification form is required. There are optional forms available for use. If an employer chooses to use its own forms, it may not require additional information beyond what is specified in the FMLA (short term disability forms which are a potential employee benefit may ask for more detailed information, but this is distinct from FMLA)
- Employers much accept complete and sufficient medical certification, regardless of format
- Information request should only be regarding the serious health condition for which FMLA is being sought
Who can certify FMLA?
- Doctor of medicine or osteopathy authorized to practice medicine or surgery in state they practice
- Clinical social worker, nurse practitioner, nurse-midwife, or physician assistant authorized to practice in the state and performing within the scope of their practice
- Podiatrist, dentist, clinical psychologist, optometrist or chiropractor with limitations authorized to practice in the state and working within their scope of practice
- Any health care provider from whom the employer or the employer’s group health plan’s benefits manager will accept a medical certification to substantiate a claim for benefits
- A Christian Science practitioner listed with the First Church of Christ, Scientist, in Boston, Massachusetts
What if your provider declines to complete FMLA certification?
- Your provider is not required to complete FMLA certification
- You may request a letter from provider explaining the FMLA relevant health conditions, but this is not required to be provided
- You may also request the already existing medical records that explain the serious health condition. This is often through a medical records department
What are your responsibilities?
- Paying for the cost of certification if required by provider (provider may require form fees)
- Making sure certification is provided to employer on time- you are expected to make a diligent, good faith effort to meet timing requirement.
- If you receive written notice from your employer that certification is incomplete/insufficient, you must ensure additional information from health care provider is provided to the employer within seven calendar days (in most circumstances)

You may be required to provide the employer with a fitness for duty certification form, showing that you can resume work if your employer has this policy in place. If this is required, you must be given notice with the FMLA designation notice that this is required and whether the certification must address your ability to perform essential job functions. You may have to pay a fee if required to have fitness for duty certification completed.

Know Your Rights

Examples of violations of FMLA rights:
- Changing of number of shifts assigned to employee
- Moving employee to location outside of their normal commuting area
- Denying bonus for which employee qualified prior to taking leave

An employer cannot threaten, punish, discriminate against, suspend, or fire and employee based on request or used FMLA leave.
- You cannot be written up for missing work when using FMLA
- Denied a promotion for using FMLA
- Assessed negative attendance points for FMLA

Employers are required to continue group health insurance coverage for employee on FMLA under same terms and conditions as if you had not taken leave
Employers are required to maintain confidentiality of records and documents relating to FMLA certifications and recertifications. Records are to be maintained in separate files from usual personnel files.
Employers may not request additional information from health care provider after receiving complete and sufficient certification.
The employee’s direct supervisor may never contact the employee’s health care provider.

FMLA and Mental Health

Mental and physical health conditions are considered serious health conditions under FMLA if they require
- Inpatient care
  - overnight stay in hospital or other medical care facility (such as treatment center for addiction)

Continuing treatment by health care provider
- Conditions that incapacitate an individual for more than 3 consecutive days and

Require ongoing medical treatment (such as multiple appointments with a health care provider like a clinical psychologist or clinical social worker or a single appointment with follow up care such as prescription medication or behavioral therapy)

Chronic conditions such as anxiety and depression that cause occasional periods where employee is incapacitated and requires treatment by a health care provider at least twice a year