WAGE & HOUR DIVISION - regionv.k12.mn.us · 1 U.S Department of Labor Corey Walton U.S. Department of Labor Wage-Hour Division Minneapolis, MN District Office WAGE & HOUR DIVISION

1

U.S Department of Labor

Corey Walton

U.S. Department of Labor

Wage-Hour Division

Minneapolis, MN District Office

WAGE & HOUR DIVISION

Disclaimer • The presentation is intended as general information only and

does not carry the force of legal opinion.

• The Department of Labor is providing this information as a public service. This information and related materials are presented to give the public access to information on Department of Labor programs. You should be aware that while we try to keep the information timely and accurate, there will often be a delay between official publications of the materials and the modification of these pages. Therefore, we make no express or implied guarantees. The Federal Register and the Code of Federal Regulations remain the official sources for regulatory information published by the Department of Labor. We will make every effort to keep this information current and to correct errors brought to our attention.

Introduction to the FMLA

Purpose: • Balance work and family life • Promote economic security of families and serve

national interest in preserving family integrity

Shared Responsibilities:

• Communication is key

§ 825.101

Topics of Discussion:

• Employer Coverage and Employee Eligibility

• Qualifying Reasons for Leave

• Amount of Leave

• Employer Rights and Responsibilities

• Employee Rights and Responsibilities

• Military Family Leave Provisions

Introduction to the FMLA

Employer Coverage

• Private sector employers with 50 or more

employees

• Public Agencies

• Public and private elementary and secondary schools

§ 825.104

Employee Eligibility

• Employed by covered employer

• Worked at least 12 months

• Have at least 1,250 hours of service during the 12 months before leave begins

• Employed at a work site with 50 employees within 75 miles

§ 825.110

• Because of a qualifying reason arising out of the covered active duty status of a military member who is the employee’s spouse, son, daughter, or parent (qualifying exigency leave)

• To care for a covered servicemember with a serious injury or illness when the employee is the spouse, son, daughter, parent, or next of kin of the covered servicemember (military caregiver leave)

Military Family Leave

Eligible employees may take FMLA leave: • For the birth or placement of a child for adoption or foster care

• To care for a spouse, son, daughter, or parent with a serious health condition

• For their own serious health condition

Qualifying Leave Reasons § 825.112

• Both the mother and father are entitled to FMLA leave for the birth or placement of the child and/or to be with the healthy child after the birth or placement (bonding time)

• Employees may take FMLA leave before the actual birth, placement or adoption

• Leave must be completed by the end of the 12-month period beginning on the date of the birth or placement

Qualifying Leave Reasons –

For the Birth or Placement of a Child

§ 825.120-121

Illness, injury, impairment or physical or mental condition involving:

• Inpatient Care, or

• Continuing Treatment by a Health Care Provider

§ 825.113Qualifying Leave Reasons –

Serious Health Condition

Serious Health Condition –

Inpatient Care

• An overnight stay in a hospital, hospice, or residential medical facility

• Includes any related incapacity or subsequent treatment

§ 825.114

Serious Health Condition –

Continuing Treatment Continuing Treatment by a Health Care Provider

• Incapacity Plus Treatment

• Pregnancy

• Chronic Conditions

• Permanent/Long-term Conditions

• Absence to Receive Multiple Treatments

§ 825.115

Continuing Treatment by a Health Care Provider

Incapacity Plus Treatment

• Incapacity of more than three consecutive, full calendar days that involves either:

– Treatment two times by HCP (first in-person visit within seven days, both visits within 30 days of first day of incapacity)

– Treatment one time by HCP (in-person visit within seven days of first day of incapacity), followed by a regimen of continuing treatment (e.g., prescription medication)

§ 825.115


Pregnancy

• Incapacity due to pregnancy or prenatal care

§ 825.115

Chronic Conditions

• Any period of incapacity or treatment due to a chronic serious health condition, which is defined as a condition that:

– requires periodic visits (twice per year) to a health care provider for treatment

– continues over an extended period of time

– may cause episodic rather than continuing periods of incapacity

§ 825.115


Permanent/Long-Term Conditions

• A period of incapacity which is permanent or long-term due to a condition for which treatment may not be effective

§ 825.115


Absence to Receive Multiple Treatments

• For restorative surgery after an accident or other injury, or

• For conditions that, if left untreated, would likely result in incapacity of more than three consecutive, full calendar days

§ 825.115


Amount of Leave • Employee’s workweek is basis for entitlement

• Eligible employees may take up to 12 workweeks* of FMLA leave:

– for the birth or placement of a child for adoption or foster care;

– to care for a spouse, son, daughter, or parent with a serious health condition; and

– for the employee’s own serious health condition.

* Eligible airline flight crew employees are entitled to 72 days of FMLA leave

§ 825.200, 825.205 & 825.802

Amount of Leave –

Intermittent Leave • Employee is entitled to take intermittent or reduced

schedule leave for:

– Employee’s or qualifying family member’s serious health condition when the leave is medically necessary

– Covered servicemember’s serious injury or illness when the leave is medically necessary

– A qualifying exigency arising out of a military member’s covered active duty status

• Leave to bond with a child after the birth or placement must be taken as a continuous block of leave unless the employer agrees to allow intermittent or reduced schedule leave

§ 825.202

• In calculating the amount of leave, employer must use the shortest increment the employer uses to account for other types of leave, provided it is not greater than one hour *

• Shortest increment may vary during different times of day or shift

• Required overtime not worked may count against an employee’s FMLA entitlement

§ 825.205Amount of Leave –

Intermittent Leave

* Special rules apply for calculating leave for airline flight crew employees

Amount of Leave –

Special Rules

• Physical impossibility

• Holidays

• Planned medical treatment

• Transfer to an alternative position

• Spouses may be limited to a combined total for certain leave reasons

§ 825.200 - 205

12-Month Period

Method determined by employer

• Calendar year

• Any fixed 12-month leave year

• A 12-month period measured forward

• A rolling 12-month period measured backward

§ 825.200

Substitution of Paid Leave

• “Substitution” means paid leave provided by the employer runs concurrently with unpaid FMLA leave and normal terms and conditions of paid leave policy apply

• Employees may choose, or employers may require, the substitution of accrued paid leave for unpaid FMLA leave

• Employee remains entitled to unpaid FMLA if procedural requirements for employer’s paid leave are not met

§ 825.207

Substitution of Paid Leave – Limitations

• Workers’ compensation leave – may count against FMLA entitlement – “topping off” allowed if state law permits

• Disability leave – may count against FMLA entitlement – “topping off” allowed if state law permits

• Compensatory time off (public sector only) – may count against FMLA entitlement – subject to FLSA requirements

§ 825.207

Employer Responsibilities

• Provide notice

• Maintain group health insurance

• Restore the employee to same or equivalent job and benefits

• Maintain records

Employer Responsibilities –

Provide General Notice • Employers must inform employees of FMLA:

– Post a General Notice, and

– Provide General Notice in employee handbook or, if no handbook, distribute to new employees upon hire

• Electronic posting and distribution permitted

• Languages other than English required where significant portion of workforce not literate in English

• $110 CMP for willful posting violation

§ 825.300


Provide Notice of Eligibility • Within five business days of leave request (or knowledge

that leave may be FMLA-qualifying)

• Eligibility determined on first instance of leave for qualifying reason in applicable 12-month leave year

• New notice for subsequent qualifying reason if eligibility status changes

• Provide a reason if employee is not eligible

• May be oral or in writing (optional WH-381)

§ 825.300

• Provided when eligibility notice required

• Must be in writing (optional WH-381)

• Notice must include:

– Statement that leave may be counted as FMLA

– Applicable 12-month period for entitlement

– Certification requirements

– Substitution requirements

– Arrangements for premium payments (and potential employee liability)

– Status as “key” employee

– Job restoration and maintenance of benefits rights

§ 825.300Employer Responsibilities – Provide Notice of Rights and Responsibilities

• Within five business days of having enough information to determine leave is FMLA-qualifying

• Once for each FMLA-qualifying reason per applicable 12-month period (additional notice if any changes in notice information)

• Include designation determination; substitution of paid leave; fitness for duty requirements

• Must be in writing (optional WH-382)

• If leave is determined not to be FMLA-qualifying, notice may be a simple written statement

§ 825.300Employer Responsibilities –

Provide Notice of Designation

• Employer must notify employee of the amount of leave counted against entitlement, if known; may be payroll notation

• If amount of leave is unknown (e.g., unforeseeable leave), employer must inform employee of amount of leave designated upon request (no more often than 30 days)

• Retroactive designation permitted provided that failure to timely designate does not cause harm to employee

§ 825.300 - .301Employer Responsibilities –

Provide Notice of Designation


Maintain Group Health Plan Benefits

• Group health plan benefits must be maintained throughout the leave period

• Same terms and conditions as if employee were continuously employed

§ 825.209

• Employee must pay his/her share of the premium

• Even if employee chooses not to retain coverage during leave, employer obligated to restore same coverage upon reinstatement

• In some circumstances, employee may be required to repay the employer’s share of the premium if the employee does not return to work after leave

§ 825.210 - .213Employer Responsibilities –

Maintain Group Health Plan Benefits


Job Restoration • Same or equivalent job

– equivalent pay – equivalent benefits – equivalent terms and conditions

• Employee has no greater right to reinstatement than had the employee continued to work

• Bonuses predicated on specified goal may be denied if goal not met

• Key employee exception

§ 825.214 - .219

Prohibited Employment Actions Employers cannot:

• interfere with, restrain or deny employees’ FMLA rights

• discriminate or retaliate against an employee for having exercised FMLA rights

• discharge or in any other way discriminate against an employee because of involvement in any proceeding related to FMLA

• use the taking of FMLA leave as a negative factor in employment actions

§ 825.220

• Basic payroll information

• Dates FMLA leave is taken

• Hours of leave if leave is taken in less than one full day

• Copies of leave notices

• Documents describing benefits/policies

• Premium payments

• Records of disputes

§ 825.500Employer Responsibilities – Maintain Records

Employee Responsibilities

• Provide sufficient and timely notice of the need for leave

• If requested by the employer:

– Provide certification to support the need for leave

– Provide periodic status reports

– Provide fitness-for-duty certification

• Provide sufficient information to make employer aware of need for FMLA-qualifying leave

• Specifically reference the qualifying reason or the need for FMLA leave for subsequent requests for same reason

• Consult with employer regarding scheduling of planned medical treatment

• Comply with employer’s usual and customary procedural requirements for requesting leave absent unusual circumstances

§ 825.302 - .303Employee Responsibilities –

Notice Requirements

Timing of Employee notice of need for leave:

• Foreseeable Leave - 30 days notice, or as soon as practicable

• Unforeseeable Leave - as soon as practicable

§ 825.302

§ 825.303

Employee Responsibilities –

Notice Requirements

• Medical Certification for serious health condition (optional WH-380-E and 380-F)

– Submit within fifteen calendar days

– Employer must identify any deficiency in writing and provide seven days to cure

– Annual certification may be required

– Employee responsible for any cost

§ 825.305Employee Responsibilities – Provide Certification

• Employer (not employee’s direct supervisor) may contact health care provider to: – Authenticate: Verify that the information was completed and/or

authorized by the health care provider; no additional information may be requested

– Clarify: Understand handwriting or meaning of a response; no additional information may be requested beyond what is required by the certification form

• Second and third opinions (at employer’s cost) – If employer questions the validity of the complete certification, the

employer may require a second opinion – If the first and second opinions differ, employer may require a third

opinion that is final and binding

§ 825.307Employee Responsibilities –

Provide Certification

• Recertification – No more often than every 30 days and with an absence

• If the minimum duration on the certification is greater than 30 days, the employer must wait until the minimum duration expires

• In all cases, may request every six months with an absence – More frequently than every 30 days if:

• the employee requests an extension of leave, or • circumstances of the certification change significantly, or • employer receives information that casts doubt on the reason for

leave

• Consequences of failing to provide certification – Employer may deny FMLA until certification is received

§ 825.308 & .313Employee Responsibilities –

Provide Certification

Employee must respond to employer’s request for information about status and intent to return to work


Provide Periodic Status Reports

• For an employee’s own serious health condition, employers may require certification that the employee is able to resume work

– Employer must have a uniformly-applied policy or practice of requiring fitness-for-duty certification for all similarly-situated employees

• If state or local law or collective bargaining agreement is in place, it governs the return to work

• Not permitted for intermittent or reduced schedule leave unless reasonable safety concerns exist

• Authentication and clarification

• Employee responsible for any cost


Fitness-for-Duty Certification

Other Issues

• Salaried employees:

– Deductions from certain “exempt” employees’ salaries

– Deductions for employees paid overtime on a fluctuating workweek method

• Special rules for schools

§ 825.206

§ 825.600-.604

The FMLA military family leave provisions include:

• Qualifying exigency leave, which provides up to 12 workweeks of FMLA leave to help families manage their affairs when a military member has been deployed to a foreign country; and

• Military caregiver leave, which provides up to 26 workweeks of FMLA leave to help families care for covered servicemembers with a serious injury or illness

Generally, FMLA rules and requirements continue to apply

FMLA Military Family Leave

Qualifying Exigency Leave

Eligible employees may take up to 12 workweeks* of FMLA leave because of a qualifying reason that arises out of the fact that the employee’s spouse, son, daughter, or parent is on, or has been notified of an impending call, to “covered active duty”

• For qualifying exigency leave, son or daughter refers to a son or daughter of any age

• Leave for this reason counts against an employee’s normal FMLA entitlement for other leave reasons within the 12-month leave year

§ 825.126

* Eligible airline flight crew employees are entitled to 72 days

• Short-notice deployment (up to seven days)

• Military events and related activities

• Childcare and school activities

• Financial and legal arrangements

• Non-medical counseling

• Care of the military member’s parent

• Rest and recuperation (up to fifteen days)

• Post-deployment activities (90-day period)

• Additional activities by agreement

§ 825.126

Qualifying Exigencies

• An employer may require an appropriate certification with: – a copy of the military member’s active duty orders – a qualifying exigency certification (optional Form WH-384)

• Statement of facts

• Dates of leave

• Frequency and duration of intermittent leave

• Contact information for any third party meeting

• The employer may verify meetings with a third party and may contact DOD to verify the military member’s covered active duty status

§ 825.309Employee Responsibilities – Provide Certification

Eligible employees may take up to 26 workweeks* of FMLA leave in a “single 12-month period” to care for a “covered servicemember” with a “serious injury or illness” if the employee is the covered servicemember’s spouse, parent, son, daughter, or next of kin

• For military caregiver leave, son or daughter refers to a son or daughter of any age

• All FMLA leave is limited to a combined total of 26 workweeks during the “single 12-month period”; no more than 12 workweeks can be taken for other leave reasons

§ 825.127

Military Caregiver Leave

* Eligible airline flight crew employees are entitled to 156 days

Covered Servicemember

A covered servicemember may be:

• a current member of the Armed Forces; OR

• a veteran of the Armed Forces.

§ 825.127

• “Single 12-month period”

• Per covered servicemember, per injury

• Limitations on leave

– 26 workweeks for all qualifying reasons

– Designation of caregiver leave

– Spouses working for same employer

§ 825.127Military Caregiver Leave –

Application of Leave

FMLA Enforcement Mechanisms

• To enforce FMLA rights, employees may:

– File a complaint with Wage and Hour Division

– File a private lawsuit (Section 107(a))

• Action must be taken within two years after the last action which the employee contends was in violation of the Act, or three years if the violation was willful

§ 825.400

FMLA Compliance Assistance Materials • Title I of the FMLA, as amended (29 U.S.C. 2601—2654)

• The Regulations (29 C.F.R. Part 825)

• The Employee’s Guide to the FMLA

• The Employee’s Guide to Military Family Leave under the FMLA

• FMLA Forms

• FMLA Fact Sheets

• FMLA Poster (WH-1420)

• FMLA Frequently Asked Questions

• FMLA elaws Advisor

Additional Information

• Visit the WHD homepage at: www.wagehour.dol.gov

• Call the WHD toll-free information and helpline at

1-866-4US-WAGE (1-866-487-9243)

• Call or visit the nearest Wage and Hour Division Office

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yyythe Family and Medical Leave Act

Wage and Hour Division

The Employee’s Guide to

■ Who Can Use FMLA Leave?

■ When Can I Use FMLA Leave?

■ What Can the FMLA Do for Me?

■ How Do I Request FMLA Leave?

■ Communication with Your Employer

■

■ Returning to Work

■ How to File a Complaint

■ Website Resources

This Guide Explains:

An Introduction to the Family and Medical Leave ActWhen you or a loved one experiences a serious health condition

situation.

requires.

need time.

The Employee’s Guide to the Family and Medical Leave Act

Who Can Use FMLA Leave?

Airline Flight Attendants/Flight Crew Employees

leave.

YESNO


YES

YES

YES

AND

NO

Your employer is not

and does not have to

YES

AND

Your employer

FMLA

YES

AND

YES

YES

YES

FMLA leave

YES

YES

My employer has

NO

NO

NO

OR


When Can I Use FMLA Leave?

Serious Health Condition

leave are:

1)

2)

4)

Military Family Leave


Expanding Your Family

Parent Parent

in loco parentis to the

Son or Daughter Son or daughter (or child

in loco parentis

Spouse Spouse

In Loco Parentis A person stands in loco parentis

in loco parentis

stood in loco parentisa child. (See Administrator’s Interpretation No. 2010-3 and Fact Sheets 28B and C.)


What Can the FMLA

the FMLA.

disruption to your employer.


FMLA Leave?


Communication

may also require you to provide periodic updates on your status

■

■

a health care provider.

■

■

■

■



STEP 1You must your employer

you need leavePlease see page 7

STEP 2Your employer must

Please see page 8

STOPYour leave is not

(You may request

Your employer must provide

Please see page 8

ELIGIBLE

NOT ELIGIBLE

CERTIFICATION REQUESTED

CERTIFICATION NOT

REQUESTED

STEP 3You must provide a completed

your employer

calendar daysPlease see page 12

sometimes complicated FMLA process.

Please note, it is ESSENTIAL for you to be familiar with your employer’s leave policy. There are several instances throughout the FMLA leave process where you will need to comply with BOTH the FMLA regulations AND your employer’s leave policy.

START HERE


STEP 5Your leave is

(There are employee

FMLA leave.) Please see page 8

STEP 6When you

your employer must return you to your same or nearly identical

Please see page 14

STOPYour leave is not

(You may request

NOT DESIGNATED


Please see page 8

YOUR RESPONSIBILITY

YOUR EMPLOYER’S RESPONSIBILITY

DESIGNATED


■

■

■

■

■

■

leave.)



is required

STEP 2You must provide a completed

your employer


YOUR EMPLOYER MAY REQUIRE YOU TO:YOUR EMPLOYER MAY REQUIRE YOU TO:

● medical opinion

● Correct any

seven days

● medical opinion

YOUR RESPONSIBILITY

YOUR EMPLOYER’S RESPONSIBILITY

YOUR EMPLOYER MAY DENY FMLA LEAVE IF YOU FAIL TO PROVIDE A REQUESTED CERTIFICATION


identical.

must: ■

■

■

■

■

required to restore you to your position.

SPECIAL CIRCUMSTANCES:

Key Employees Certain key employees

key employee

Teachers

Please visit our website for more complete information.


www.dol.gov/whd/america2.htm

■ your name

■

■

■

■

■

■

response


www.dol.gov/whd/fmla

■

■ General Guidance

■ Fact Sheets

■

■

■ Forms

■ Interpretive Guidance

■

■

The Employee’s Guide to Military Family Leave under the Family Medical Leave Act

U.S. Department of Labor Wage and Hour Division

1-866-4-USWAGE(1-866-487-9243)www.dol.gov/whd

SPECIAL RULES FOR SCHOOLS General. (a) Certain special rules apply to employees of local educational agencies, which include public school boards and public and private elementary and secondary schools. The special rules do not apply to other kinds of educational institutions, such as colleges and universities, trade schools, and preschools. (b) Local educational agencies are covered by the FMLA (and these special rules). They are covered employers under the FMLA. The FMLA’s 50-employee coverage test does not apply. However, the usual requirements for employees to be “eligible” do apply, including employment at a worksite where at least 50 employees are employed within 75 miles. (c) The special rules affect instructional employees taking intermittent leave, leave on a reduced leave schedule, or leave near the end of an academic term. “Instructional employees” are those whose principal function is to teach and instruct students in a class, a small group, or an individual setting. This includes not only teachers, but also athletic coaches, driving instructors, and special education assistants such as signers for the hearing impaired. It does not include teacher assistants or aides who do not have as their principal job actual teaching or instructing, nor does it include auxiliary personnel such as counselors, psychologists, curriculum specialists, cafeteria workers, maintenance workers, or bus drivers. (d) The special rules outlined below that apply to restoration to an equivalent position apply to all employees of local educational agencies. Limitations on intermittent leave. (a) Leave taken by an instructional employee for a period that ends with the school year and begins the next semester is leave taken consecutively rather than intermittently. The period during the summer vacation when the employee would not have been required to report for duty is not counted against the employee’s FMLA leave entitlement. (b) An instructional employee who is on FMLA leave at the end of the school year must be provided with any benefits over the summer vacation that employees would normally receive if they had been working at the end of the school year. (c) When an instructional employee needs intermittent leave or leave on a reduced leave schedule to care for a family member with a serious health condition, to care for a covered servicemember with a serious injury or illness, or for the employee’s own serious health condition, any one of which is foreseeable based on planned medical treatment, and the employee would be on leave for more than 20 percent of the total number of working days over the period the leave would extend, the employer may require the employee to choose either:

(1) Take a block of leave for a particular period or periods not greater than the duration of the time needed for the planned treatment; or (2) Transfer temporarily to an available alternative position for which the employee is qualified, which has equivalent pay and benefits and which better accommodates the leave.

(d) If an employee chooses to take a block of leave for the duration of time needed instead of transferring temporarily to an available alternative position, the entire period of leave taken will count as FMLA leave. (e) If an instructional employee does not give the required notice of foreseeable FMLA leave (see FOH 39f01) to be taken intermittently or on a reduced leave schedule, the employer may require the employee to take leave of a particular duration or to transfer temporarily to an alternative position. Alternatively, the employer may require the employee to delay the taking of leave until the notice provision is met. Limitations on leave taken near the end of an academic term. (a) Academic term means the school semester that typically ends near the end of the calendar year and the end of spring. Schools cannot have more than two academic terms each year for the purposes of the FMLA. (b) If an instructional employee begins leave more than five weeks before the end of an academic term, the employer may require the employee to continue taking leave until the end of the term if the leave will last at least three weeks, and the employee would return to work during the three week period before the end of the term. (c) If an instructional employee begins leave during the five-week period before the end of the academic term and the leave is for the birth of a child or placement of a child for adoption or foster care, to care for a spouse, son, daughter or parent with a serious health condition, or to care for a covered servicemember with a serious injury or illness, the employer may require the employee to continue leave until the end of the term if the leave will last more than two weeks, and the employee would return to work during the two-week period before the end of the term. (d) If an instructional employee begins leave during the three-week period before the end of the academic term and the leave is for the birth of a child or placement of a child for adoption or foster care, to care for a spouse, son, daughter or parent with a serious health condition, or to care for a covered servicemember with a serious injury or illness, the employer may require the employee to continue taking leave until the end of the term if the leave will last more than five working days. (e) In the case of an employee who is required to take leave until the end of an academic term, only the period of leave until the employee is ready and able to return to work can be charged against the employee's FMLA leave entitlement. The employer has the option not to require the employee to stay on leave until the end of the school term; therefore any additional leave required by the employer to the end of the school term is not counted as FMLA leave. However, the employer must maintain the employee's group health insurance and restore the employee to the same or equivalent job including other benefits at the conclusion of the leave.

Restoration to an equivalent position. (a) The determination of how an employee is to be restored to an equivalent position upon return from FMLA leave will be made on the basis of established school board policies and practices, private school policies and practices, and collective bargaining agreements. Such policies or agreements must be in writing, must be made known to the employee prior to the taking of FMLA leave, and must clearly explain the employee's restoration rights upon return from leave. (b) The taking of FMLA leave shall not result in the loss of any employment benefit accrued prior to the date the leave begins. For example, a probationary teacher who takes a FMLA-qualifying leave cannot be required to begin the probationary period again upon return to work. The employer is not required to allow the accrual of any additional seniority or employment benefit during the period of unpaid leave, but must restore the employee to those benefits already earned.

U.S. Department of Labor Wage and Hour Division

(Revised 2012) Fact Sheet #28: The Family and Medical Leave Act The Family and Medical Leave Act (FMLA) entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons. This fact sheet provides general information about which employers are covered by the FMLA, when employees are eligible and entitled to take FMLA leave, and what rules apply when employees take FMLA leave. COVERED EMPLOYERS The FMLA only applies to employers that meet certain criteria. A covered employer is a: • Private-sector employer, with 50 or more employees in 20 or more workweeks in the current or

preceding calendar year, including a joint employer or successor in interest to a covered employer;

• Public agency, including a local, state, or Federal government agency, regardless of the number of employees it employs; or

• Public or private elementary or secondary school, regardless of the number of employees it employs.

ELIGIBLE EMPLOYEES Only eligible employees are entitled to take FMLA leave. An eligible employee is one who:

• Works for a covered employer; • Has worked for the employer for at least 12 months; • Has at least 1,250 hours of service for the employer during the 12 month period immediately

preceding the leave*; and • Works at a location where the employer has at least 50 employees within 75 miles. * Special hours of service eligibility requirements apply to airline flight crew employees. See Fact Sheet 28J: Special Rules for Airline Flight Crew Employees under the Family and Medical Leave Act . The 12 months of employment do not have to be consecutive. That means any time previously worked for the same employer (including seasonal work) could, in most cases, be used to meet the 12-month requirement. If the employee has a break in service that lasted seven years or more, the time worked prior to the break will not count unless the break is due to service covered by the Uniformed Services Employment and Reemployment Rights Act (USERRA), or there is a written agreement, including a collective bargaining agreement, outlining the employer’s intention to rehire the employee after the break in service. See "FMLA Special Rules for Returning Reservists" . LEAVE ENTITLEMENT Eligible employees may take up to 12 workweeks of leave in a 12-month period for one or more of the following reasons:

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• The birth of a son or daughter or placement of a son or daughter with the employee for adoption or foster care;

• To care for a spouse, son, daughter, or parent who has a serious health condition; • For a serious health condition that makes the employee unable to perform the essential functions

of his or her job; or • For any qualifying exigency arising out of the fact that a spouse, son, daughter, or parent is a

military member on covered active duty or call to covered active duty status. An eligible employee may also take up to 26 workweeks of leave during a "single 12-month period" to care for a covered servicemember with a serious injury or illness, when the employee is the spouse, son, daughter, parent, or next of kin of the servicemember. The "single 12-month period" for military caregiver leave is different from the 12-month period used for other FMLA leave reasons. See Fact Sheets 28F: Qualifying Reasons under the FMLA and 28M: The Military Family Leave Provisions under the FMLA. Under some circumstances, employees may take FMLA leave on an intermittent or reduced schedule basis. That means an employee may take leave in separate blocks of time or by reducing the time he or she works each day or week for a single qualifying reason. When leave is needed for planned medical treatment, the employee must make a reasonable effort to schedule treatment so as not to unduly disrupt the employer's operations. If FMLA leave is for the birth, adoption, or foster placement of a child, use of intermittent or reduced schedule leave requires the employer’s approval. Under certain conditions, employees may choose, or employers may require employees, to "substitute" (run concurrently) accrued paid leave, such as sick or vacation leave, to cover some or all of the FMLA leave period. An employee’s ability to substitute accrued paid leave is determined by the terms and conditions of the employer's normal leave policy. NOTICE Employees must comply with their employer’s usual and customary requirements for requesting leave and provide enough information for their employer to reasonably determine whether the FMLA may apply to the leave request. Employees generally must request leave 30 days in advance when the need for leave is foreseeable. When the need for leave is foreseeable less than 30 days in advance or is unforeseeable, employees must provide notice as soon as possible and practicable under the circumstances. When an employee seeks leave for a FMLA-qualifying reason for the first time, the employee need not expressly assert FMLA rights or even mention the FMLA. If an employee later requests additional leave for the same qualifying condition, the employee must specifically reference either the qualifying reason for leave or the need for FMLA leave. See Fact Sheet 28E: Employee Notice Requirements under the FMLA . Covered employers must: (1) Post a notice explaining rights and responsibilities under the FMLA (and may be subject to a

civil money penalty of up to $110 for willful failure to post);

(2) Include information about the FMLA in their employee handbooks or provide information to new employees upon hire;

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(3) When an employee requests FMLA leave or the employer acquires knowledge that leave may be for a FMLA-qualifying reason, provide the employee with notice concerning his or her eligibility for FMLA leave and his or her rights and responsibilities under the FMLA; and

(4) Notify employees whether leave is designated as FMLA leave and the amount of leave that will be deducted from the employee’s FMLA entitlement.

See Fact Sheet 28D . : Employer Notice Requirements under the FMLA CERTIFICATION When an employee requests FMLA leave due to his or her own serious health condition or a covered family member’s serious health condition, the employer may require certification in support of the leave from a health care provider. An employer may also require second or third medical opinions (at the employer’s expense) and periodic recertification of a serious health condition. See Fact Sheet 28G: Certification of a Serious Health Condition under the FMLA. For information on certification requirements for military family leave, See Fact Sheet 28M(c): Qualifying Exigency Leave under the FMLA; Fact Sheet 28M(a): Military Caregiver Leave for a Current Servicemember under the FMLA; and Fact Sheet 28M(b): Military Caregiver Leave for a Veteran under the FMLA. JOB RESTORATION AND HEALTH BENEFITS 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 terms and conditions of employment. An employee’s use of FMLA leave cannot be counted against the employee under a “no-fault” attendance policy. Employers are also required to continue group health insurance coverage for an employee on FMLA leave under the same terms and conditions as if the employee had not taken leave. See Fact Sheet 28A . : Employee Protections under the Family and Medical Leave Act OTHER PROVISIONS Special rules apply to employees of local education agencies. Generally, these rules apply to intermittent or reduced schedule FMLA leave or the taking of FMLA leave near the end of a school term. 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 the FLSA 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 an eligible employee’s use of FMLA leave. ENFORCEMENT It is unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise any right provided by the FMLA. It is also unlawful for an employer to discharge or discriminate against any individual for opposing any practice, or because of involvement in any

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proceeding, related to the FMLA. See Fact Sheet 77B . The Wage and Hour Division is responsible for administering and enforcing the FMLA for most employees. Most federal and certain congressional employees are also covered by the law but are subject to the jurisdiction of the U.S. Office of Personnel Management or Congress. If you believe that your rights under the FMLA have been violated, you may file a complaint with the Wage and Hour Division or file a private lawsuit against your employer in court.

: Protections for Individuals under the FMLA

For additional information, visit our Wage and Hour Division Website: http://www.wagehour.dol.gov and/or call our toll-free information and helpline, available 8 a.m. to 5 p.m. in your time zone, 1-866-4-USWAGE (1-866-487-9243). This publication is for general information and is not to be considered in the same light as official statements of position contained in the regulations. U.S. Department of Labor Frances Perkins Building 200 Constitution Avenue, NW Washington, DC 20210

1-866-4-USWAGE TTY: 1-866-487-9243

Contact Us

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