Where to Turn... Your Guide to Federal Disability Policies and Programs Authors Patrice Drew, Esq. Cathy Ficker Terrill Anne C. Parrette, Esq. Project Coordinator Janna Starr Editors Larry H. Hoffer Lisa Ward Monique Marino Brain Injury Association US Department of Health and Human Services HRSA Health Resources and Services Administration Maternal and Child Health Bureau Disclaimer The Brain Injury Association shall not be held liable for content changes made by unauthorized parties, including but not limited to: alterations of text, images or other information within Where to Turn: Your Guide to Federal Disability Policies and Programs (the Guide.) The Guide contains general information. It is not an authoritative legal document, nor shall it be construed as legal advice. The Guide shall not be relied upon as a legal authority for acting or refusing to act. The information contained in the Guide may change as Federal polices and programs are amended periodically. The Brain Injury Association is not responsible for notifying the Public of these changes. The Family and Medical Leave Act (FMLA) What is the FMLA? The FMLA entitles eligible employees to take up to 12 weeks of unpaid, job-protected leave in a 12 month period for specified family and medical reasons. Am I eligible for FMLA leave? 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 Is my employer covered by FMLA? FMLA applies to all: public agencies, including state, local and federal employers, local education agencies (schools), and private-sector employers who employed 50 or more employees in 20 or more workweeks in the current or preceding calendar year and who are engaged in commerce or in any industry or activity affecting commerce - including joint employers and successors of covered employers What are valid reasons for leave? A covered employer must grant an eligible employee up to a total of 12 workweeks of unpaid leave during any 12 month period for one or more of the following reasons: for the birth and care of the newborn child of the employee; for placement with the employee of a son or daughter for adoption or foster care; to care for an immediate family member (spouse, child, or parent) with a serious health condition; or to take medical leave when the employee is unable to work because of a serious health condition What is a "Serious Health Condition?" "Serious health condition" means an illness, injury, impairment, or physical or mental condition that involves either: any period of incapacity or treatment connected with inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical-care facility, and any period of incapacity or subsequent treatment in connection with such inpatient care; or Continuing treatment by a health care provider which includes any period of incapacity (i.e., inability to work, attend school or perform other regular daily activities) due to: (1) A health condition (including treatment therefore, or recovery there from) lasting more than three consecutive days, and any subsequent treatment or period of incapacity relating to the same condition, that also includes: treatment two or more times by or under the supervision of a health care provider; or one treatment by a health care provider with a continuing regimen of treatment; or (2) Pregnancy or prenatal care. A visit to the health care provider is not necessary for each absence; or (3) A chronic serious health condition that continues over an extended period of time, requires periodic visits to a health care provider, and may involve occasional episodes of incapacity (e.g., asthma, diabetes). A visit to a health care provider is not necessary for each absence; or (4) A permanent or long-term condition for which treatment may not be effective (e.g., Alzheimer's, a severe stroke, terminal cancer). Only supervision by a health care provider is required, rather than active treatment; or (5) Any absences to receive multiple treatments for restorative surgery or for a condition which would likely result in a period of incapacity of more than three days if not treated (e.g., chemotherapy or radiation treatments for cancer) "Health care provider" means: doctors of medicine or osteopathy authorized to practice medicine or surgery by the state in which the doctors practice; or podiatrists, dentists, clinical psychologists, optometrists and chiropractors (limited to manual manipulation of the spine to correct a subluxation as demonstrated by X-ray to exist) authorized to practice, and performing within the scope of their practice, under state law; or nurse practitioners, nurse-midwives and clinical social workers authorized to practice, and performing within the scope of their practice, as defined under state law; or Christian Science practitioners listed with the First Church of Christ, Scientist in Boston, Massachusetts; or Any health care provider recognized by the employer or the employer's group health plan benefits manager What if my spouse and I work for the same employer? Are we entitled to 12 weeks of leave each? No. Spouses employed by the same employer are jointly entitled to a combined total of 12 work weeks of family leave for the birth and care of the newborn child, for placement of a child for adoption or foster care, and to care for a parent who has a serious health condition. I f I gave birth, adopted or was granted foster care of a child two years ago, am I still eligible for leave under FMLA? No. Leave for birth and care, or placement for adoption or foster care must conclude within 12 months of the birth or placement. Must I take the entire 12 weeks of leave at one time? No. Under some circumstances, employees may take FMLA leave intermittently - which means taking leave in blocks of time, or by reducing their normal weekly or daily work schedule. If FMLA leave is for birth and care or placement for adoption or foster care, use of intermittent leave is subject to the employer's approval. FMLA leave may be taken intermittently whenever medically necessary to care for a seriously ill family member, or because the employee is seriously ill and unable to work. May accrued paid leave be used to cover some or all of the FMLA leave? Yes. Substitution of paid accrued vacation, personal, or medical/sick leave may be made for any (otherwise) unpaid FMLA leave needed to care for a family member or the employee's own serious health condition. Substitution of paid sick/medical leave may be elected to the extent the circumstances meet the employer's usual requirements for the use of sick/medical leave. An employer is not required to allow substitution of paid sick or medical leave for unpaid FMLA leave "in any situation'' where the employer's uniform policy would not normally allow such paid leave. An employee, therefore, has a right to substitute paid medical/sick leave to care for a seriously ill family member only if the employer's leave plan allows paid leave to be used for that purpose. Similarly, an employee does not have a right to substitute paid medical/sick leave for a serious health condition that is not covered by the employer's leave plan. When on FMLA leave, do I get to keep my health benefits? A covered employer is required to maintain group health insurance coverage for an employee on FMLA leave whenever such insurance was provided before the leave was taken and on the same terms as if the employee had continued to work. 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. What happens when I return to work? Upon return from FMLA leave, an employee must be restored to the employee's original job, or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment. In addition, 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 FMLA leave, nor be counted against the employee under a "no fault" attendance policy. Under specified and limited circumstances where restoration to employment will cause substantial and grievous economic injury to its operations, an employer may refuse to reinstate certain highly-paid "key" employees after using FMLA leave during which health coverage was maintained. In order to do so, the employer must: notify the employee of his/her status as a "key" employee in response to the employee's notice of intent to take FMLA leave; notify the employee as soon as the employer decides it will deny job restoration, and explain the reasons for this decision; offer the employee a reasonable opportunity to return to work from FMLA leave after giving this notice; and make a final determination as to whether reinstatement will be denied at the end of the leave period if the employee then requests restoration A "key" employee is a salaried "eligible" employee who is among the highest paid ten percent of employees within 75 miles of the work site. How much notice do I need to give my employer if I wish to utilize FMLA leave? Employees seeking to use FMLA leave are required to provide 30-day advance notice of the need to take FMLA leave when the need is foreseeable and such notice is practicable. Employers may also require employees to provide: medical certification supporting the need for leave due to a serious health condition affecting the employee or an immediate family member; second or third medical opinions (at the employer's expense) and periodic recertification; and periodic reports during FMLA leave regarding the employee's status and intent to return to work When intermittent leave is needed to care for an immediate family member or the employee's own illness, and is for planned medical treatment, the employee must try to schedule treatment so as not to unduly disrupt the employer's operation. Covered employers must post a notice approved by the Secretary of Labor explaining rights and responsibilities under FMLA. An employer that willfully violates this posting requirement may be subject to a fine of up to $100 for each separate offense. Also, covered employers must inform employees of their rights and responsibilities under FMLA, including giving specific written information on what is required of the employee and what might happen in certain circumstances, such as if the employee fails to return to work after FMLA leave. What should I do if I feel my rights have been violated? It is unlawful for any employer to interfere with, restrain, or deny the exercise of any right provided by 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 proceeding, related to FMLA. The Wage and Hour Division investigates complaints. If violations cannot be satisfactorily resolved, the U.S. Department of Labor may bring action in court to compel compliance. Individuals may also bring a private civil action against an employer for violations. Individuals who wish to file a complaint under FMLA will need to contact their local Wage & Hour Division of the U.S. Department of Labor. If a complainant is uncertain which office to contact, he or she can call (202) 219-8412 or (800) 326-2577 (TTY) for further information on where to file or check the local telephone directory under the United States Government listings. For Further Information Regarding the Family & Medical Leave Act (FMLA): U.S. Department of Labor Wage & Hour Division 200 Constitution Ave., N.W. Washington, DC 20210 (202) 219-8412 (800) 326-2577 (TTY) (Not Wage & Hour but number is to be used for all TTY Department of Labor calls) Job Accommodation Network A Service of the President's Committee on Employment of People with Disabilities 918 Chestnut Ridge Road Suite 1 P.O. Box 6080 Morgantown, WV 26506-6080 (800) 526-7234 (V/TTY) (800) ADA-WORK (V/TTY) Web: http://janweb.icdi.wvu.edu E-mail: jan@jan.icdi.wvu.edu Bulletin Board: (800) DIAL JAN Endnotes U.S. Department of Labor www.dol.gov