These materials have been prepared by the Law Offices of Stephen M. Murphy for informational purposes only and are not legal advice. Transmission of the information is not intended to create, and receipt does not constitute an attorney-client relationship. Internet subscribers and online readers should not act upon this information without seeking professional counsel. The information contained in this web site is provided only as general information which may or may not reflect the most current legal developments. This information is not provided in the course of an attorney-client relationship and is not intended to constitute legal advice or to substitute for obtaining legal advice from an attorney licensed in your state.
Frequently Asked Questions
Q: Which employers are covered by the Family Medical Leave Act (FMLA)?
A: The FMLA covers private employers with 50 or more employees.
Q: Which employees are eligible for family or medical leave under the FMLA?
A: To be eligible for family or medical leave, an employee must have been employed by his or her employer for at least 12 months and actually worked for at least 1,250 hours during the preceding 12 months.
Q: How much leave are eligible employees entitled to?
A: Eligible employees are entitled to 12 "workweeks" of leave during any 12 month period.
Q: When may an eligible employee be entitled to family or medical leave?
A: Eligible employees are entitled to family and medical leave for the following reasons:
1) to care for the employee's own "serious health condition" which makes him or her unable to perform the essential functions of the job;
2) to care for a spouse, child or parent who has a "serious health condition";
3) to attend the birth of a child, and in order to care for that child; or
4) to care for a child placed with the employee for adoption or foster care.
Q: California already has a family leave law in effect (the "California Family Rights Act"). How will the FMLA affect this state law?
A: The FMLA does not displace any provision of a state or local law that provides greater family or medical leave rights to employees. Since the FMLA places no obligation on employees to designate whether the leave they are taking is FMLA leave as opposed to leave under a state law, employers covered by both the federal FMLA and an applicable state law must comply with the provisions of both.
Q: What types of conditions are considered "serious health conditions"?
A: A "serious health condition" must involve:
(1) inpatient care in a hospital or medical care facility, or
(2) continuing treatment by a health care provider.
Q: I understand what "inpatient care" is, but what does "continuing treatment by a health care provider" mean?
A: Under the FMLA, "Continuing treatment by a health care provider" means:
(1) a period of incapacity of more than three consecutive calendar days and any subsequent treatment or period of incapacity relating to the same condition that involves either (a) treatment two or more times by a health care provider; or (b) treatment by a health care provider on at least one occasion which results in a regimen of continuing treatment under the supervision of a health care provider;
(2) any period of incapacity due to pregnancy or for prenatal care;
(3) any period of incapacity or treatment for such incapacity due to a "chronic serious health condition," which is a condition that (a) requires periodic visits for treatment by a health care provider, (b) continues over an extended period of time (including recurring periods of a single underlying condition), and may cause episodic rather than a continuing period of incapacity (e.g., asthma, epilepsy, diabetes, etc.);
(4) any period of incapacity which is permanent or long-term due to a condition for which treatment may not be effective; or
(5) any period of absence to receive multiple treatments (including any period of recovery) by a health care provider, either for restorative surgery after an accident or other injury, or for a condition that would likely result in a period of incapacity of more than three consecutive calendar days in the absence of medical intervention or treatment (e.g., chemotherapy for cancer, physical therapy for severe arthritis, or dialysis for kidney disease.)
Q: Do employees have to be provided with paid family or medical leave under the FMLA?
A: No. Leave under the FMLA may consist of unpaid leave. An employee may elect, or an employer may require its employees, to substitute vacation, annual or personal leave for any part of the 12-week family leave period (sick leave may be substituted for medical leave). Of course, an employer is free to provide its employees with paid leave if it chooses to.
Q: How can an employer verify an employee's need for leave because of a "serious health condition"?
A: An employer may require an employee to obtain certification of a "serious health condition" from the employee's health care provider. The employer can pay for a second opinion if it doubts the validity of the original certification. If the second opinion conflicts with the first, the employer may pay for a third opinion. The provider of the third opinion must be jointly designated or approved by the employer and employee. The third opinion will be final.
Q: Is my health care provider required to disclose my diagnosis to my employer?
A: Under the CFRA, unlike the FMLA, your health care provider is not permitted to disclose your diagnosis without first obtaining your consent.
Q: How much notice must an employee give of his or her intention to take family or medical leave?
A: If leave is foreseeable based on a birth, adoption or planned medical treatment, an employee must give the employer 30 days' notice of his or her intention to take leave. If leave is not foreseeable, the employee must provide such notice "as is practicable."
Q: What type of notice is sufficient to make the employer aware of the employee's need for family or medical leave?
A: The employee shall provide at least verbal notice sufficient to make the employer aware that the employee needs family or medical leave, and the anticipated timing and duration of the leave. The employee need not expressly assert rights under the FMLA, or even mention the FMLA, to meet the notice requirement. However, the employee must state the reason the leave is needed. It is then up to the employer to inquire further of the employee if it is necessary to have more information about whether family or medical leave is being sought by the employee and to obtain the necessary details of the leave to be taken.
Q: Must an employee be returned to his or her same job upon returning from leave?
A: An employee returning from leave must be restored to his or her old job or to an equivalent position with equal pay, benefits, and other terms and conditions of employment.
Q: May an employee use his or her 12 weeks of leave in separate intervals or must the 12 weeks be taken consecutively?
A: An employee may take leave intermittently or on a reduced leave schedule, but there are two conditions. If the leave is for the birth or placement of a child for adoption or foster care, the employer must agree to intermittent leave. If the leave is for the "serious health condition" of the employee or the employee's spouse, child or parent, leave may be taken intermittently or on a reduced schedule only when "medically necessary."
Q: What happens to an employee's health coverage when he or she is out on leave?
A: An employer must maintain coverage under its group health plan for an employee taking family or medical leave at the same level and under the same conditions through which coverage would have been provided if the employee had not taken leave. If paid leave is substituted for FMLA leave, the employee's share of premiums must be paid by the method normally used during any paid leave, presumably as a payroll deduction. If the leave is unpaid, the employer may require that payment of the employee's share be made to the employer or to the insurance carrier, if any, but no additional charge may be added to the employee's premium payment for administrative expenses. The employer must provide the employee with advance written notice of the terms and conditions under which the employee's premium payments must be made during the leave.
Q: How are employees protected who request leave or otherwise assert FMLA rights?
A: An employer is prohibited from interfering with, restraining or denying the exercise of (or attempts to exercise) any rights provided by the FMLA. An employer is further prohibited from discharging or in any other way discriminating against any person for opposing or complaining about any unlawful practice under the FMLA.