In theory, the Family and Medical Leave Act (FMLA) is a law that recognizes an employee’s need for unforeseen leave while minimizing the costs and efforts of the employer. It sounds simple enough to say that an employee can receive up to 12 weeks (or, up to 26 weeks where applicable) of unpaid leave a year for certain reasons and can then return to work with the same pay and benefits. However, as HR administrators know all too well, the devil is in the details. The FMLA is full of words with their own definition, as they apply to the FMLA, and if you aren't familiar with those definitions your company could be charged with penalties after denying leave to employees who qualify for it. In addition, the United States Department of Labor (DOL) regulations on the FMLA are voluminous. The information below will provide an overview of the basic principles and provisions of the Act and its regulations.
Purpose and History of the FMLA
The FMLA was enacted in 1993 for the purpose of allowing employees to balance their family life and their work by letting them take up to 12 workweeks of unpaid leave for certain family events and medical reasons. In 2008, amendments were made to the FMLA by the National Defense Authorization Act (NDAA) that became effective in January of 2009. The NDAA expanded the FMLA to allow eligible employees to take up to 12 weeks of job-protected leave in the applicable 12-month period because of any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a military member on covered active duty, or has been called to covered active duty status (or has been notified of an impending call or order to covered active duty).
Also, the NDAA amended the FMLA to allow eligible employees to take up to 26 weeks of job-protected leave in a “single 12-month period” if the employee is the spouse, son, daughter, parent, or next of kin caring for a covered servicemember or veteran recovering from a serious injury or illness incurred in the line of duty on active duty in the Armed Forces, or that existed before the beginning of the member's active duty and was aggravated by, or that manifested itself before or after the member became a veteran. The two new types of FMLA leave are known as the military family leave. Final FMLA regulations implementing the military family leave provisions took effect in 2013.
To be eligible for FMLA benefits, an employee must:
- Work for a covered employer;
- Have worked for the employer for a total of 12 months;
- Have worked at least 1,250 hours over the previous 12 months; and
- Work at a location in the United States or in any territory or possession of the United States where at least 50 employees are employed by the employer within 75 miles.
Although the 12 months of employment need not be consecutive, employment periods prior to a break in service of 7 years or more need not be counted in determining whether the employee has been employed by the employer for at least 12 months. However, FMLA's final regulations state that employers must "count" service beyond the 7-year cap if the employee's break in service is caused by his or her service in the National Guard or reserves, (as protected under the Uniformed Services Employment and Reemployment Rights Act (USERRA)), or if the employee and employer have a written agreement concerning the employer's intention to rehire the employee after the break in service (e.g., for purposes of the employee furthering his or her education or for child-rearing purposes). This includes collective bargaining agreements.
Employers may also choose, as a matter of policy for all types of leave, to consider employment prior to a continuous break in service of more than 7 years when determining whether an employee has met the 12-month employment requirement. or is covered in a written agreement, including a collective bargaining agreement, exists concerning the employer’s intention to rehire the employee after the break in service.
The FMLA provides that covered employers must allow an eligible employee to take up to 12 workweeks (or up to 26 weeks to care for a covered service-member) of unpaid leave during any 12-month period for one or more of the following reasons:
- For the birth and care of a newborn child of the employee;
- For placement with the employee of a son or daughter for adoption or foster care;
- To care for a spouse, son, daughter, or parent with a serious health condition;
- To take medical leave when the employee is unable to work because of a serious health condition; or
- For qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a military member on covered active duty, or has been called to covered active duty status (or has been notified of an impending call or order to covered active duty);
- If the employee is the spouse, son, daughter, parent, or next of kin caring for a covered servicemember or veteran recovering from a serious injury or illness incurred in the line of duty on active duty in the Armed Forces, or that existed before the beginning of the member's active duty and was aggravated by, or that manifested itself before or after the member became a veteran.
- A current member of the armed forces, including a member of the National Guard or reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status; or is otherwise on the temporary disability retired list, for a serious injury or illness; or
- A covered veteran who is undergoing medical treatment, recuperation or therapy for a serious injury or illness. The veteran must be an individual who was a member of the armed forces (including a member of the National Guard or reserves), and was discharged or released under conditions other than dishonorable at any time during the 5-year period before the first date the eligible employee takes FMLA leave to care for the covered veteran.
In the case of a current member of the armed forces, including a member of the National Guard or reserves, a "serious injury or illness" is an injury or illness that was incurred by the covered servicemember in the line of duty on active duty in the armed forces, or that existed before the beginning of the member’s active duty and was aggravated by service in the line of duty on active duty in the armed forces, and that may render the member medically unfit to perform the duties of the member’s office, grade, rank or rating.
- A continuation of a serious injury or illness that was incurred or aggravated when the covered veteran was a member of the armed forces and rendered the servicemember unable to perform the duties of the servicemember’s office, grade, rank, or rating; or
- A physical or mental condition for which the covered veteran has received a U.S. Department of Veterans Affairs Service-Related Disability Rating (VASRD) of 50 percent or greater, and such VASRD rating is based, in whole or in part, on the condition precipitating the need for military caregiver leave; or
- A physical or mental condition that substantially impairs the covered veteran’s ability to secure or follow a substantially gainful occupation by reason of a disability or disabilities related to military service, or would do so absent treatment; or
- An injury, including a psychological injury, on the basis of which the covered veteran has been enrolled in the Department of Veterans Affairs Program of Comprehensive Assistance for Family Caregivers.
For more detailed information about military (servicemember) caregiver leave see, FMLA Leave for Servicemember Caregiver Leave.
It is important to note that when both spouses work for the same employer, the full amount of leave is limited to an aggregate of 12 weeks for the birth, adoption, or foster care placement of a single child or to care for a parent with a serious health condition.
Leave for birth and care, or placement for adoption or foster care, must conclude within 12 months of the birth or placement.
Employees or employers may substitute (run concurrently) accrued paid leave such as sick or vacation leave to cover some or all of the FMLA leave. An employee’s ability to substitute accrued paid leave is determined by the employer’s normal leave policy.
Leave taken under the FMLA is job-protected, which means that employees cannot be fired while on leave or retaliated against for requesting leave and must be given the same job or a similar job with equivalent pay, benefits, and other terms and conditions of employment when they return. Also, the employer must provide group health insurance benefits during the employee’s leave on the same terms that it provided them when the employee was working. If applicable, arrangements will need to be made for employees to pay their share of health insurance premiums while on leave. In some instances, the employer may recover premiums it paid to maintain health coverage for an employee who fails to return to work from FMLA leave.
Note that FMLA leave cannot be counted against the employee under a "no fault" attendance policy. Bonuses or other payments, based on achievement of a specified goal such as hours worked, products sold, or perfect attendance and that have not been met, may be denied unless paid to employees on equivalent leave status for reasons other than FMLA leave.
Medical Issues Involved in Granting FMLA Leave
As an employer, coordinating FMLA leave may require you to communicate with health care providers. You will be relying upon their judgment to determine whether an employee or loved one has a serious health condition that mandates a leave of absence from work. The rules cover the patient, whether the patient is your employee or a family member of your employee. In order to protect the patient’s privacy, and to reduce your administrative headaches, the FMLA regulations have crafted specific rules and procedures for dealing with health care providers. This section will guide you through these tricky areas.
At first glance, you may think this is an easy question. A health care provider is a doctor, right? Well, yes, doctors are health care providers, but the definition can be much broader than that. The FMLA statute defines “health care provider” as either a state-licensed doctor of medicine or osteopathy. The regulations, however, have significantly expanded that definition to include many other types of health care practitioners. The FMLA regulations define health care providers as doctors of medicine or osteopathy authorized to practice medicine or surgery by the state in which the doctors practice. Also included are the following state-licensed professionals:
- Clinical psychologists;
- Clinical social workers;
- Chiropractors (limited to certain types of spinal manipulations);
- Nurse practitioners; Physician assistants; and Nurse-midwives who are authorized to practice under state law;
- Christian Science practitioners listed with The Church of Christ, Scientist in Boston, Massachusetts; and
- Any other health care provider recognized by the employer or the employer’s group health plan benefits manager.
For tough calls regarding health care providers that are not specifically listed in the regulations you may need to do a little research into both the licensing requirements in your state and into what providers are covered by your health care plan. For example, what if an employee brings in a certification signed by an acupuncturist? Before making a decision, check whether your state authorizes acupuncturists to diagnose and treat health conditions without the supervision of a doctor. If it does, you can accept that certification. Also, if your health care plan pays benefits for treatment by an acupuncturist you can accept the acupuncturist’s certification.
Employee Privacy Concerns
When dealing with FMLA leave issues, you become privy to some very sensitive medical information about employees and possibly their family members. It is important to remember that you must maintain complete confidence of private medical information. Several federal laws — including the Americans with Disabilities Act (ADA), the Genetic Information Nondiscrimination Act (GINA), and the Health Insurance Portability and Accountability Act (HIPAA) — designate when and what kind of medical information you can obtain from employees, and require you to keep that information confidential. In addition, the ADA requires you to keep all medical records separate from employees’ personnel files. You need to restrict access to these files to the small number of people who have an administrative reason for accessing the information.
Communicating with Health Care Providers
In addition to keeping FMLA information confidential, there are restrictions on how you may contact an employee's health care provider. Previously, an employer could not contact a health care provider directly; however, the FMLA regulations now allow an employer's human resource professional, leave administrator, or a management official -- but not the employee's direct supervisor -- to "authenticate" or "clarify" a medical certification of a serious health condition. Under no circumstances may the employee’s direct supervisor contact the employee’s healthcare provider.
"Authentication" of information provided on a medical certification form means providing the healthcare provider with a copy of the medical certification and requesting verification that the information contained on the certification form was completed and/or authorized by the healthcare provider who signed the document. No additional medical information may be requested. No employee or HIPAA consent is required for authentication.
“Clarification” means contacting the employee’s healthcare provider in order to understand the handwriting or to understand the meaning of the responses contained within the certification. Employers may not ask healthcare providers for additional information beyond that required by the certification form. The employee’s healthcare provider may require HIPAA consent for such clarification, and the employee must provide such consent or FMLA leave may be denied.
Request Medical Certifications
At times, determining whether employees or their loved ones have a serious medical condition can become a full-time job. Although employers are now allowed to contact health care providers, the best thing that you can do to protect your company from FMLA liability is really quite simple. All you have to do is ask employees to submit a certification from their health care provider stating that they or a covered family member has a serious health condition. Even if the leave is to take care of a loved one, you can still require the employee to furnish a medical certification of that person’s serious health condition.
If you have reason to doubt the validity of a medical certification, you have the option of sending the employee to a doctor of your choice (and at your expense) for a second opinion. Second and third opinions of medical certification for military caregiver leave are only allowed when the certifying healthcare provider is outside of the DOD/VA/TRICARE system.
An employer may have a uniformly applied policy requiring employees returning from leave for their own serious health condition to submit a certification that they are able to resume work. If reasonable safety concerns exist, an employer may, under certain circumstances, require such a certification for employees returning from intermittent FMLA leave.
For military family leave, employers may require that an employee’s request for leave be supported by an appropriate certification. An employer may require that:
- Leave for a qualifying exigency be supported by a copy of the covered military member’s active duty orders and certification providing the appropriate facts related to the particular qualifying exigency for which leave is sought, including contact information if the leave involves meeting with a third party;
Leave to care for a covered service-member with a serious injury or illness be supported by a certification completed by a DOD healthcare provider; a U.S. Department of Veterans Affairs (VA) healthcare provider; a DOD TRICARE network authorized private healthcare provider; a DOD nonnetwork TRICARE authorized private healthcare provider; or a private healthcare providers outside of the DOD, VA or the TRICARE healthcare network authorized to certify other forms of FMLA leave.
The employer may seek authentication and clarification of medical certification for a servicemember's serious illness or injury (see description, above). However, second and third opinions and re-certification are not permitted for certification of a covered service-member’s serious injury or illness, unless the certifying healthcare provider is one who is outside of the DOD, VA or the TRICARE healthcare network authorized to certify other forms of FMLA leave. In such cases, second and third opinions are permitted.
An employer may contact the individual or entity named in a certification of leave for a qualifying exigency for purposes of verifying the existence and nature of the meeting.
If the authorized healthcare provider is unable to make certain military-related determinations required for certification, the healthcare provider may rely on determinations from an authorized DOD representative (such as a DOD recovery care coordinator).
Certification may also be provided by or by a copy of an Invitational Travel Order (ITO) or Invitational Travel Authorization (ITA) issued to any member of the covered service-member’s family.
When In Doubt, Require A Medical Certification
You may require that an employee’s leave for his or her own serious medical condition or the serious medical condition of a family member be supported by a certification issued by the treating health care provider. Although this is not a prerequisite for granting FMLA leave, requesting a medical certification of the serious health condition indicates to the employee that the leave is to be used for serious matters only and also helps curtail FMLA abuse.
It is a good practice to require that all employees who request FMLA leave accompany that request with a certification from the relevant health care provider. If you request that only some employees provide medical certification, you may open yourself up to a discrimination lawsuit. An employee may claim that you required medical certification to make it more difficult for her to get leave because of your bias against her protected class. Or, an employee may allege that you retaliated against his or her request for FMLA leave by making the employee jump through more hoops than other employees. As in all employment matters, it is best to apply your policies and procedures consistently across the board.
The regulations give details on what information must be included in the medical certificate. In fact, the Department of Labor has created a model Certification of Health Care Provider (Form WH-380-E for employees, Form WH-380-F for family members, Form WH-385 for current servicemembers, or Form WH-385-V for veterans.
Note that the rules are more lenient if you have a sick or medical leave plan that imposes less strict medical certification requirements than the FMLA and you or the employee elects to substitute paid sick, vacation, personal, or other leave for unpaid FMLA leave. In that situation, you only need to follow your company’s less-stringent sick leave certification requirements.
What Information Should You Ask For?
Here are the elements that a medical certification for an employee’s own serious health condition must have:
- A statement of the serious health condition. The health care provider must identify which category of serious health condition the condition at issue falls into.
- A summary of medical facts that support the certification. This must include a description of how the facts meet the criteria for a serious health condition.
- The date the condition began and how long it will last. A statement of the approximate date the condition commenced, the probable duration of the condition, and the probable length of time the employee will be unable to work.
- Whether the employee needs intermittent leave or a reduced schedule. If so, the certification must give the probable duration of such a leave schedule.
- Duration and frequency of a chronic condition or pregnancy. If the leave is due to a chronic condition or pregnancy, the health care provider must state the likely duration and frequency of episodes of incapacity.
- Information on additional treatments. If additional treatments may be needed for the condition, the health care provider should give an estimate of how many more treatments will be needed, whether they will be provided by another health care provider, and a general description of any continuing regimen of treatments.
- Information on inability to perform job. The health care provider must give information on whether the employee is unable to perform work of any kind, is unable to perform the essential functions of his job, or must be absent from work to receive treatment.
If the employee requests leave to care for a sick relative, the relative’s health care provider must complete the certificate containing these elements:
• Healthcare practitioner’s name, contact information, and type of practice/specialization.
• Approximate date condition began and probable duration.
• Medical facts sufficient to support need for leave (at option of healthcare practitioner, may include symptoms, diagnosis, hospitalization, doctor visits, prescribed medication, referrals for evaluation/treatment, regimen of continuing treatment).
• Sufficient information that the family member is “in need of care” and an estimate of the frequency and duration of leave needed for such care.
• If intermittent or reduced schedule leave for planned treatment is required, why there is a medical necessity for such leave and the estimated dates and duration of treatment and/or recovery periods.
• If intermittent or reduced schedule leave is required for flare-ups, why there is medical necessity for leave to care for the family member, and an estimate of the frequency and duration of required leave.
Timing is Everything
There are several different reasons during an employee’s leave when you may require the employee to provide medical certification:
- When leave is requested, to make sure that the employee or loved one is suffering from a serious health condition;
- Periodically during leave, but no more than once every 30 days, to make sure their leave is still justified;
- When you are uncertain about the certification an employee provides, you can require second or third medical opinions (at your expense).
As a practical matter, you need the medical certification as soon as possible so you can verify the leave and begin counting days toward the employee’s FMLA time. Ask employees to furnish medical certifications when they give you notice of the need for leave or at least within five business days after you receive notice from the employee. If the leave is unforeseeable, you should still request the employee’s medical certification within five days of when the leave commenced.
When you are requesting medical certification from an employee, you should advise the employee of the consequences of not providing an adequate medical certification. The most dire of these consequences is that the employee’s leave will not be counted as FMLA leave and the employee may lose the job protection that goes along with FMLA leave.
Require Prompt Return
The next question on your mind is probably, "How long can the employee take to get the medical certification back to you?" This may depend on the circumstances of the leave. If the leave is foreseeable, and the employee has given you notice of her intent to take the leave, you should request it and she should turn in the medical certification before going on leave. Under FMLA, the employee must provide the requested medical certification or recertification to the employer within 15 calendar days after the employer’s request, unless it is not practicable under the particular circumstances to do so despite the employee’s diligent, good faith efforts, or unless the employer allows more than 15 calendar days to return the requested certification.
If an employee does not provide a medical certification within 15 days of being requested to, and she has not demonstrated that it is not practicable under the particular circumstances to do so despite her diligent, good faith efforts, you may delay the FMLA leave until all the paperwork has been turned in. If the employee never produces the certification, as we said above, you do not have to count the leave as FMLA leave and the employee will lose the FMLA protections, such as job reinstatement.
Insufficient Certification/Opportunity to Cure
FMLA’s regulations require that an employer advise an employee whenever the employer finds a certification incomplete or insufficient. The employer must state in writing what additional information is necessary to make the certification complete and sufficient.
“Incomplete” means one or more of the applicable entries has not been completed. “Insufficient” means the information provided is vague, ambiguous, or nonresponsive.
If certification or recertification is returned but is incomplete or insufficient, the employer must provide written notice of what specific information is still needed and give employee 7 calendar days to cure the deficiencies (unless 7 days is not practicable under the particular circumstances despite the employee’s diligent, good-faith efforts). DOL’s Designation Notice (Form WH-382) may be used to inform the employee that the medical certification is incomplete or insufficient (or both).
If the deficiencies specified by the employer are not fixed in the resubmitted certification within 7 calendar days, and the employee has provided no information regarding his or her goodfaith efforts to cure, or if the certification is returned but not cured, the employer may deny the FMLA leave.
It is the employee’s responsibility to provide the employer with a complete and sufficient certification and to clarify the certification if necessary. If an employee chooses not to provide the employer with authorization allowing the employer to clarify the certification with the healthcare provider, and does not otherwise clarify the certification, the employer may deny the FMLA leave.
How to Challenge A Certification
The FMLA provides a process for getting a second opinion and, if necessary, a tie-breaker third opinion. If you doubt the validity of the medical certification, you may seek a second medical opinion (at your expense). If the two opinions conflict, you may request a third opinion, again at your expense. This third opinion is binding on both parties. Although a second or third opinion will be unnecessary in most cases, there are some situations when procuring a second opinion would be very worthwhile. These cases include employees who have spotty attendance records or who have lied in the past.
What Happens in the Meantime?
Employees are allowed to take FMLA leave while you are either trying to clarify or authenticate the certification or obtain a second opinion. If it turns out, after the clarification, authentication or second (and possible third) opinion, that the employee is not entitled to FMLA leave, you should “un-designate” the leave as FMLA and treat it as either paid or unpaid leave consistent with your policies. If the employee is not entitled to either paid or unpaid leave under your policies, and you have a disciplinary policy that addresses unauthorized absences, you may be able to discipline the employee. You should inform the employee of this possibility when you begin probing into the validity of his medical certification.
Who Can Provide A Second Opinion?
The employer is permitted to designate a healthcare provider to furnish the second opinion, but the provider may not be employed on a regular basis by the employer. The employer may not regularly contract with or otherwise regularly utilize the services of the healthcare provider furnishing the second opinion unless the employer is located in an area where access to health care is extremely limited (e.g., a rural area where no more than one or two doctors practice the relevant specialty in the vicinity).
In addition to paying for the cost of the second and third opinions, you must also reimburse the employee or family member for reasonable travel expenses involved in obtaining the additional opinion. Further, you cannot require an employee to travel outside their area for an additional opinion, except in very limited circumstances. If the family member is in another country, the additional opinions must be from a health care provider in that country. You cannot force the family member to come to the U.S. for the purpose of obtaining an opinion.
Any opinions that you receive, either second or third, must be provided to the employee in writing, within two days of the employee’s request.
What Happens If the Second Opinion Says the Employee Is Not Eligible?
If the second opinion disagrees with the first opinion, you can either choose to accept the patient’s health care provider’s opinion, or send the patient for a third opinion as a tie-breaker. This third opinion is final and binding and must be paid for by the employer. Unlike the second opinion, where you can choose which health care provider gives the opinion, the third opinion must be obtained from a health care provider that both the employer and the employee agree upon.
Requesting Recertification of the Medical Condition
In certain circumstances, you can ask the employee for a recertification of his, or his family member’s, serious health condition. Generally, you may request recertification no more often than every 30 days, unless one of the specific exceptions discussed below applies. If the medical condition is a chronic or long-term condition certified to last more than 30 days, an employer must wait for the minimum duration of the condition (appearing in the certification) to expire before requesting a recertification, unless one of the specific exceptions discussed below applies.
An employer may request recertification in less than 30 days if any of the three following circumstances exist:
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); or
3. The employer receives information that casts doubt upon the employee’s stated reason for the absence or the continuing validity of the certification.
Procedure for Recertification
The employee must provide the requested recertification to the employer within the time frame requested by the employer (which must allow at least 15 calendar days after the employer’s request), unless it is not practicable under the particular circumstances to do so despite the employee’s diligent, good-faith efforts. No second or third opinions are permitted on the recertification.
What Can You Do If You Suspect An Employee Is Abusing FMLA Leave?
Your best bet in dealing with FMLA abuse is to meticulously and consistently follow all of the procedures outlined above. These procedures will give you objective evidence about how serious the employee’s condition is and how much leave, if any, he really needs. If you need to deny an employee’s request for FMLA leave, this evidence will simplify your decision (and make it easier to defend in court, if necessary).
Note that an employee who fraudulently obtains FMLA leave from an employer is not protected by the FMLA’s job restoration or maintenance of health benefits provisions.