Q. Do I have to be full time or worked for my employer for a certain period to be eligible for FMLA leave?
Yes. You must have worked for the employer for at least 12 months and have worked at least 1,250 hours during the 12 months prior to the start of the FMLA leave, and work at a location where at least 50 employees are employed by the employer within 75 miles of the location.
Q. 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.
Q. 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.
Q. How do I determine if I have worked 1,250 hours in a 12-month period?
Your 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
- Over 104 hours worked in each of the 12 months of the year
- 40 hours worked per week for more than 31 weeks, over 7 months, of the year
Q. How much time can I be granted of FMLA leave?
The eligible employee must be granted up to a total of 12 work weeks of unpaid leave in a 12-month period for one or more of the following reasons:
- for the birth of a son/daughter, and to care for the newborn child
- for the placement with the employee of a child for adoption or foster care, and to care for the newly placed child
- to care for an immediate family member (spouse, child or parent, but not a parent “in-law”) with a serious health condition
- when the employee is unable to work because of a serious health condition
Leave to care for a newborn child or for a newly placed child must conclude within 12 months after the birth or placement.
Spouses employed by the same employer are limited to a combined total of 12 work weeks of family leave for the following reasons:
- Birth and care of a child
- For the placement of a child for adoption or foster care, and to care for the newly placed child
- To care for an employee’s parent who has a serious health condition
Q. Who is considered an immediate family member for purposes of taking FMLA leave?
An employee’s spouse, children and parents are immediate family members. 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.
Q. What is a serious health condition?
A 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, such as an overnight stay, in a hospital, hospice, or residential medical care facility
- A 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
- Any period of incapacity due to pregnancy or for prenatal care
- Any period of incapacity or treatment due to a chronic serious health condition, such as asthma, diabetes
- A period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective, such as Alzheimer’s, stroke or terminal diseases
- Any absences to receive multiple treatments including any period of recovery, by or on referral by a health care provider for a condition that likely would result in incapacity of more than 3 consecutive days if left untreated, such as chemotherapy or physical therapy.
Q. May I take FMLA leave for visits to a therapist, if my doctor prescribes the therapy?
Yes. FMLA permits you 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.
Q. Can the “flu” be counted towards FMLA?
Yes. If the period of incapacity requires you to be away from work more than three calendar days.
Q. Can the employer count time on maternity leave or pregnancy disability leave 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.
Q. Can I take intermittent leave for my ill child?
Yes. Intermittent leave may be taken when medically necessary to care for a seriously ill family member or because of the employee’s serious health condition.
Q. Can I take intermittent leave to care for my newborn child?
Intermittent leave can be taken only with the employer’s approval.
Q. If I take intermittent leave for my own personal illness, how will my leave be counted?
Only the amount of leave actually taken while on intermittent leave may be charged as FMLA leave. Employers may account for FMLA leave in the shortest period of time that their payroll systems use.
Health Care Provider
Q. What health care provider may provide the certification of my serious health condition for the purposes of FMLA?
Doctors of medicine or osteopathy authorized to practice medicine of surgery by the State in which the doctor practices. Podiatrists, dentists, clinical psychologists, optometrists and chiropractors (limited to treatment) authorized to practice in the State and performing within the scope of their practice. Nurse practitioners, nurse-midwives and clinical social workers authorized to practice under State law and performing within the scope of their practice under State law. Any health care provider recognized by the employer or the employer’s group health plan benefits. A health care provider listed above who practices in a country other than the United States and who is authorized to practice under the laws of that country.
Q. Do I have to provide my Employer with certification of my need for FMLA?
Yes. An employer may require that the need for leave for a serious health condition of the employee or the employee’s immediate family member be supported by a certification issued by a health care provider. The employer must allow the employee at least 15 calendar days to obtain the medical certification.
Q. Can my employer require me to obtain a second medical certification?
Yes. An employer may, at its own expense, require the employee to obtain a second medical certification from a health care provider. The employer may choose the health care provider for the second opinion, except that in most cases the employer may not regularly contract with or otherwise regularly use the services of the health care provider. If the opinions of the employee’s and the employer has designated health care providers differ, the employer may require the employee to obtain certification from a third health care provider, again at the employer’s expense. This third opinion shall be final and binding. The employer and the employee must approve the third health care provider jointly. The “Certification of Health Care Provider” (optional form WH-380) may be used to obtain the certifications.
Q. Do I have to give my employer my medical records for leave due to a serious health condition?
No. You do not have to provide medical records. The employer may, however, request that, for any leave taken due to a serious health condition, you provide a medical certification confirming that a serious health condition exists.
Q. Is my employer required to abide by FMLA laws?
Yes. FMLA is enforced by the Wage and Hour Division of the U.S. Department of Labor’s Employment Standards Administration. This agency investigates complaints of violations. If violations cannot be satisfactorily resolved, the Department may bring action in court to compel compliance.
Q. Will I lose my job if I take FMLA leave?
Generally, no. It is unlawful for any employer to interfere with, restrain, or deny the exercise of any right provided under this law. 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.
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 employer for opposing a practice made unlawful under FMLA.
Q. How is the 12-month period calculated?
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 employees first FMLA leave begins
- A rolling 12-month period measure backward from the date an employee uses FMLA leave
Q. Which way does Taylor University count the 12-month period?
Taylor University uses the rolling 12-month period method.
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 any obligations to provide supporting medical certification. The employer may not, however, require you to return to work early by offering you a light duty assignment.
Q. Can my employer put me in another position?
Upon return from FMLA leave, an employee must be restored to his/her original job, or to an “equivalent” job, which means virtually identical to the original job in terms of pay, benefits, and other employment terms and conditions.
Q. Can I lose my benefits when I come back from FMLA?
No. 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, but not necessarily during, FMLA leave.
Q. Are there other circumstances in which my employer can deny me FMLA leave or reinstatement to my job?
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 nor otherwise had their employment terminated had they continued to work during the FMLA period, for example, due to a general layoff.
Q. Can my employer require a doctor’s release before I am permitted to come back to work?
Yes. Taylor University requires a medical certification of fitness for duty to return to work and may deny reinstatement to an employee who fails to provide the certification or may delay reinstatement until the certification is obtained.
Q. Do I lose my health benefits when I am on FMLA?
No. However, the employee on FMLA leave, when not receiving pay, needs to arrange to pay their portion of the health insurance.
Q. Do I have to use my medical time while I am on FMLA leave?
Taylor University requires employees to use, accrued paid leave to cover all the FMLA leave taken. FMLA for family members is limited to using four medical (sick) days, then vacation or personal time must be used.
Designation of Leave
Q. When is leave designated as FMLA leave?
In all circumstances, it is the employer’s responsibility to designate leave taken for an FMLA reason as FMLA leave. The designation must be based on information furnished by the employee. Leave may 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 acquires information from the employee such as when the employee requests additional or extensions of leave
- The employer was unaware that the leave was for an FMLA reason, and the employee notifies the employer with 2 days after return to work that the leave was FMLA leave.
Q. Does worker’s compensation leave count against an employee’s FMLA?
Yes. Taylor University’s FMLA leave and worker’s compensation leave run together.
Q. Can my employer make inquiries about my leave during my absence?
Yes, but only to you. Your employer may ask you questions 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.
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.
Military Caregiver Leave
Q. What is the military caregiver leave?
This leave allows an employee who has a spouse, son/daughter or parent in the National Guard or Reserves to take FMLA leave due to a qualifying exigency resulting from the covered family members’ active military duty (or call to active duty statues) in support of a contingency operation.
Q. Does the leave have to be taken all at once?
No. It may be taken continuously, intermittently or on reduced schedule.
Q. How many weeks may I be off work?
You may be off 26 work weeks of leave in a single 12-month period. This is determined on per service member and per injury basis.
Q. What kind of documentation do I need to apply for this leave?
A health care provider that serves with the Department of Defense, Veteran Affairs or Tricare providers may provide the documentation.