FMLA Rules: Everything You Need to Know

The FMLA rules are specific to the Family and Medical Leave Act. This is a federal law which promises certain qualified workers up to 12 business weeks of unpaid time off every year without fear of losing the job. FMLA also mandates that employers maintain health insurance for qualified workers while out on leave. FMLA was enacted in 1933 as a way to offer qualified employees up to 12 weeks of excused absence from their jobs without risk of losing the job. Since FMLA can be rather tricky, it is often a challenge for HR professionals. 

What Employers Use FMLA?

Employers that maintain the minimum requirements have to comply with FMLA; however, not all companies maintain such requirements and therefore are exempt from the FMLA rules. Such minimum requirements include the following: the employer must have at least 50 people working for the company for a period of at least 20 business weeks out of the year—either the current or prior year. All state, federal, and local employers must also comply with the rule. However, smaller employers are not required to abide by the law.

How is an Employee Eligible?

As previously noted, FMLA applies to particular workers. The workers have to work for a covered employer for at least 12 months (1 year), and at least 1,250 hours throughout that 1 year, before applying for time off under FMLA. In addition, the employee’s job has to take place at an area that has at least 50 other employees working, or within 75 miles of an area where 50 or more employees work for the same company.

In addition to the above criteria, one of the following must be met:

  • The employee must not be an elected official at the local, state, or federal level.
  • The employee can’t work due to a severe medical condition
  • The employee has to take care of an immediate family member who has a significant medical condition.
  • The employee gives birth.
  • The employee fosters or adopts a child.
  • A qualifying exigency arises due to the employee’s child, spouse, or parent being on active duty or being called to active duty for the Reserve or National Guard.

FMLA provides several options for employers who are calculating the 1-year period, which includes:

  • Choosing the current calendar year
  • Choosing a secure “leave year” which can be based on any given 1-year timeframe, i.e. fiscal year or anniversary of the employee’s first day with the company
  • Choosing a 1-year period that begins on the first day of FMLA leave
  • Choosing a 12-month period that counts backward from the first day of FMLA leave.

While an employer may provide FMLA, this doesn’t guarantee paid leave. In this case, the employee would need to use any paid time off accrued.

Guidelines on Managing Leave

Employees can take up to 26 weeks of unpaid FMLA leave in a given 12-month period to care for family members who suffer a serious injury or illness while on active military duty. The definition of “serious” injury can be hard to prove as the law states that the condition must involve more than 3 full, consecutive calendar days of incapacity as well as two visits to a healthcare professional that must have occurred within a 30 day timeframe.

Employees should be aware that an employer can in fact contact an employee’s health care provider to seek clarification about information provided on the employee’s FMLA certification form. However, the person reaching out for such information cannot be the employee’s direct supervisor. Rather, it can be an HR representative, another health care provider, or a management official working for the employer. The certification must only provide information that relates to the reason for FMLA leave; therefore, the employer cannot ask about other health-related issues or conditions that the employee may suffer from unless it directly relates to the FMLA leave.

The employer must provide employees with at least 15 calendar days to submit the paperwork after requested leave. If the medical form itself is incomplete or insufficient, the employer must indicate this information to the employee in writing. The employee will then have 7 days to cure the insufficiencies.

Other Considerations

  • Employees are not required to visit with a doctor that the employer chooses; the employee can choose whichever doctor he or she sees fit.
  • The employer is required to obtain a medical certification for every FMLA leave request that is due to a serious health condition.
  • The employer must deny the leave request if the employee fails to submit the certification on time.
  • The employer must ensure that the certification is properly filled out
  • The employer must ask for a second opinion if there is any suspicion as to the validity of the medical certification.
  • Once the certification is approved, the employer must inquire each time the employee requests more leave.
  • The employer must keep track of the employee’s absences in the event that he or she is taking advantage of the FMLA policy in effect.
  • Employers want to ensure that employees are not taking intermittent leave throughout the year as this raises suspicion that the employee is not being truthful. However, the employee may be suffering from an ongoing condition that needs treatment on an as-needed basis.
  • Employers should not accept certifications that are broad as to the reason for the FMLA leave request
  • Employers should be mindful that some employees wish to seek a reduced schedule for FMLA leave meaning that the employee can work 6 hours per day instead of 8 hours, or alternatively, can work 10 hours a day on Monday-Thurs and will take off on Friday.

Frequently Asked Questions That Employees May Have

  • Can other types of leave count toward the 12-week FMLA leave?

If the purpose of the leave meets the FMLA requirements, then yes, any other type of leave will likely count toward the 12-week allowance.

  • Can I take FMLA time off to for sessions with my psychologist?

Since FMLA covers ongoing treatment by a healthcare provider, some employers will allow employees to take FMLA leave for this reason.

  • My employer wants evidence that I’m sick. Do I need to give my medical records?

An employer can ask that the employee furnish some sort of medical certification for a serious medical condition, but actual medical records need not be provided.

  • Can my employer force me to end my FMLA time off early?

If an employee fails to provide the necessary medical certification, then the employer may be able to cut the FMLA leave short; however, this is only if the employee is out on leave for a serious health condition. If the employee is in fact suffering from a serious health condition, then an employee should have no issue providing such documentation.

  • Can my employer tell me what I can/can’t do while on leave?

There may be a company policy set in place on outside employment; however, the employer cannot restrict the employee’s actions during FMLA leave.

  • My employer refused my FMLA leave request. Is this okay?

If the employer is covered by FMLA and the employee is in fact eligible under the law, then the employer can’t deny the request so long as the employee complies with the requirements set forth by FMLA, i.e. the medical certification.

  • Can I be fired if I take FMLA leave?

No, employers cannot restrict rights under the FMLA law. However, there is an exception here. For very highly paid employees, known as “key” employees, there may be a denial of reinstatement.

  • If I noticed a FMLA violation on the part of my employer, can the employer fight back in retaliation by firing me?

No, an employer cannot retaliate.

  • Will FMLA leave affect my year-end bonus?

The employer cannot deny the bonus; however, the bonus may be substantially lower since the employee didn’t work for the company for a period of 12 weeks, or 3 months out of the calendar year.

  • I have concerns. Who can I reach out to?

If an employee has been fired or retaliated against for taking FMLA leave, he or she can speak to an employment law attorney to learn about legal options available.

If you need help learning more about the FMLA rules and your rights under the law, you can post your legal need on UpCounsel’s marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.