FMLA stands for the federal Family Medical Leave Act. It entitles eligible employees of a covered employer to take job-protected, unpaid leave, or to substitute appropriate paid leave if the employee has earned or accrued it, for up to a total of 12 workweeks in any 12 month period for the conditions listed below. FMLA leave may be taken on an intermittent basis rather than all at once, or the employee may work a part-time schedule. Leave may be taken for the following reasons:
the birth of a child and to care for the newborn child within one year of birth (see § 825.120);
the placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement (see § 825.121);
to care for the employee’s spouse, child, or parent who has a serious health condition (see §825.124);
a serious health condition that makes the employee unable to perform the essential functions of his or her job (see §§ 825.113 and 825.123);
any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty" (see §§ 825.122 and 825.126);
To care for a covered servicemember with a serious injury or illness if the employee is the spouse, son, daughter, parent, or next of kin of the covered servicemember (see §§ 825.122 and 825.127).
An employee on FMLA leave is also entitled to have health benefits maintained while on leave as if the employee had continued to work instead of taking the leave. An employee generally has a right to return to the same position or an equivalent position with equivalent pay, benefits, and working conditions at the conclusion of the leave. The taking of FMLA leave cannot result in the loss of any benefit that accrued prior to the start of the leave.
The employer generally has a right to advance notice from the employee. In addition, the employer may require an employee to submit certification to substantiate that the leave is due to the serious health condition of the employee or the employee's covered family member, due to the serious injury or illness of a covered service member, or because of a qualifying exigency. The employer may also require that an employee present a certification of fitness to return to work when the absence was caused by the employee's serious health condition. 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.
For more information, visit: US Department of Labor - FMLA. The Department of Labor 16-page booklet on FMLA is an excellent guide that uses uses plain language.
An eligible employee is one who:
Works for a covered employer (see definition below);
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.
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.
Under FMLA 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.
Note: If you do not work for a covered employer, you may be eligible for leave under the Oregon Family Leave Act. Under that law, a "Covered employer" means any employer employing 25 or more persons in the state of Oregon. For more information, visit: Oregon Bureau of Labor and Industries (BOLI): OFLA.
Under FMLA, a "serious heath condition" (see §825.113) entitling an employee to FMLA leave means an illness, injury, impairment or physical or mental condition that involves inpatient care (as defined in §825.114) or continuing treatment by a health care provider (as defined in §825.115).
Note: The term incapacity means inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefore, or recovery therefrom.
Note: The term treatment includes (but is not limited to) examinations to determine if a serious health condition exists and evaluations of the condition. Treatment does not include routine physical examinations, eye examinations, or dental examinations. A regimen of continuing treatment includes, for example, a course of prescription medication (e.g., an antibiotic) or therapy requiring special equipment to resolve or alleviate the health condition (e.g., oxygen).
Note: Conditions for which cosmetic treatments are administered (such as most treatments for acne or plastic surgery) are not serious health conditions unless inpatient hospital care is required or unless complications develop. Ordinarily, unless complications arise, the common cold, the flu, ear aches, upset stomach, minor ulcers, headaches other than migraine, routine dental or orthodontia problems, periodontal disease, etc., are examples of conditions that do not meet the definition of a serious health condition and do not qualify for FMLA leave. Restorative dental or plastic surgery after an injury or removal of cancerous growths are serious health conditions provided all the other conditions of this regulation are met. Mental illness or allergies may be serious health conditions, but only if all the conditions of this section are met.
Inpatient care (as defined in §825.114) consists of:
An overnight stay in a hospital, hospice, or residential medical care facility.
Inpatient care includes any period of incapacity or any subsequent treatment in connection with the overnight stay.
Continuing treatment by a health care provider (as defined in §825.115) includes any one or more of the following:
(1) Incapacity Plus Treatment: A period of incapacity of more than three consecutive, full calendar days, and any subsequent treatment or period of incapacity relating to the same condition, that also involves either:
Two or more in-person visits to a health care provider for treatment within 30 days of the first day of incapacity unless extenuating circumstances exist. The first visit must be within seven days of the first day of incapacity; or,
At least one in-person visit to a health care provider for treatment within seven days of the first day of incapacity, which results in a regimen of continuing treatment under the supervision of the health care provider. For example, the health provider might prescribe a course of prescription medication or therapy requiring special equipment.
(2) Pregnancy: Any period of incapacity due to pregnancy or for prenatal care.
(3) Chronic conditions. Any period of incapacity or treatment for such incapacity due to a chronic serious health condition. A chronic serious health condition is one which:
Requires periodic visits (defined as at least twice a year) for treatment by a health care provider, or by a nurse under direct supervision of a health care provider;
Continues over an extended period of time (including recurring episodes of a single underlying condition); and
May cause episodic rather than a continuing period of incapacity (e.g., asthma, diabetes, epilepsy, etc.).
(4) Permanent or Long-term Conditions: A period of incapacity which is permanent or long-term due to a condition for which treatment may not be effective, but which requires the continuing supervision of a health care provider, such as Alzheimer’s disease or the terminal stages of cancer.
(5) Conditions Requiring Multiple Treatments: Restorative surgery after an accident or other injury; or, a condition that would likely result in a period of incapacity of more than three consecutive, full calendar days if the patient did not receive the treatment.
Note: Absences attributable to incapacity due to pregnancy or a chronic serious health condition qualify for FMLA leave even though the employee or the covered family member does not receive treatment from a health care provider during the absence, and even if the absence does not last more than three consecutive full calendar days.
Leave can be for a continuous period of time (e.g., for an entire 12 week period), or it may be taken intermittently or on a reduced leave schedule under certain circumstances (see §825.202). Intermittent leave is FMLA leave taken in separate blocks of time due to a single qualifying reason. A reduced leave schedule is a leave schedule that reduces an employee's usual number of working hours per workweek, or hours per workday. A reduced leave schedule is a change in the employee's schedule for a period of time, normally from full-time to part-time.
Medical necessity. For intermittent leave or leave on a reduced leave schedule taken because of one's own serious health condition, to care for a spouse, parent, son, or daughter with a serious health condition, or to care for a covered service member with a serious injury or illness, there must be a medical need for leave and it must be that such medical need can be best accommodated through an intermittent or reduced leave schedule. The treatment regimen and other information described in the certification of a serious health condition and in the certification of a serious injury or illness, if required by the employer, addresses the medical necessity of intermittent leave or leave on a reduced leave schedule. See §§ 825.306, 825.310.
Scheduling of intermittent or reduced schedule leave: If an employee needs leave intermittently or on a reduced leave schedule for planned medical treatment, then the employee must make a reasonable effort to schedule the treatment so as not to disrupt unduly the employer's operations (see § 825.203).
Calculation of leave. When an employee takes leave on an intermittent or reduced leave schedule, only the amount of leave actually taken may be counted toward the employee's leave entitlement. The actual workweek is the basis of leave entitlement. Therefore, if an employee who would otherwise work 40 hours a week takes off eight hours, the employee would use one-fifth (1⁄5) of a week of FMLA leave.
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. Federal law (§825.306) specifies the following content for medical certifications:
Required information. When leave is taken because of an employee's own serious health condition, or the serious health condition of a family member, an employer may require an employee to obtain a medical certification from a health care provider that sets forth the following information:
(1) The name, address, telephone number, and fax number of the health care provider and type of medical practice/specialization;
(2) The approximate date on which the serious health condition commenced, and its probable duration;
(3) A statement or description of appropriate medical facts regarding the patient's health condition for which FMLA leave is requested. The medical facts must be sufficient to support the need for leave. Such medical facts may include information on symptoms, diagnosis, hospitalization, doctor visits, whether medication has been prescribed, any referrals for evaluation or treatment (physical therapy, for example), or any other regimen of continuing treatment;
(4) If the employee is the patient, information sufficient to establish that the employee cannot perform the essential functions of the employee's job as well as the nature of any other work restrictions, and the likely duration of such inability (see § 825.123(b) and (c));
(5) If the patient is a covered family member with a serious health condition, information sufficient to establish that the family member is in need of care, as described in § 825.124, and an estimate of the frequency and duration of the leave required to care for the family member;
(6) If an employee requests leave on an intermittent or reduced schedule basis for planned medical treatment of the employee's or a covered family member's serious health condition, information sufficient to establish the medical necessity for such intermittent or reduced schedule leave and an estimate of the dates and duration of such treatments and any periods of recovery;
(7) If an employee requests leave on an intermittent or reduced schedule basis for the employee's serious health condition, including pregnancy, that may result in unforeseeable episodes of incapacity, information sufficient to establish the medical necessity for such intermittent or reduced schedule leave and an estimate of the frequency and duration of the episodes of incapacity; and
(8) If an employee requests leave on an intermittent or reduced schedule basis to care for a covered family member with a serious health condition, a statement that such leave is medically necessary to care for the family member, as described in §§ 825.124 and 825.203(b), which can include assisting in the family member's recovery, and an estimate of the frequency and duration of the required leave.
The US Department of Labor has developed two optional forms (Form WH-380E and Form WH-380F, as revised) for use in obtaining medical certification, including second and third opinions, from health care providers that meets FMLA's certification requirements.
Optional form WH-380E is for use when the employee's need for leave is due to the employee's own serious health condition. Optional form WH-380F is for use when the employee needs leave to care for a family member with a serious health condition. These optional forms reflect certification requirements so as to permit the health care provider to furnish appropriate medical information.
Form WH-380-E and WH-380-F, as revised, or another form containing the same basic information, may be used by the employer; however, no information may be required beyond that specified in §§ 825.306, 825.307, and 825.308. In all instances the information on the form must relate only to the serious health condition for which the current need for leave exists. Prototype forms WH-380-E and WH-380-F may be obtained from www.dol.gov/whd.
Complete and sufficient certification. If the employer requests a medical certification, the employee is responsible for providing a complete and sufficient certification, including paying for the cost of the certification and making sure the certification is provided to the employer on time. The employee must be given at least 15 calendar days after the employer’s request to provide the certification and the employee is expected to make a diligent, good faith effort to meet the timing requirement.
Incomplete certification: A certification is considered incomplete if one or more of the applicable entries on the form have not been completed. A certification is considered insufficient if the information provided is vague, unclear, or non- responsive.
An employee who receives a written notice from the employer stating that the certification is incomplete or insufficient and stating what additional information is necessary must provide the additional information to the employer within seven calendar days in most circumstances.
Authentication and clarification. The employer may not request additional information from the health care provider after receiving a complete and sufficient certification. Under the FMLA, the employee’s direct supervisor may never contact the employee’s health care provider. However, the employer may contact the health care provider to authenticate or to clarify a certification using a:
Human resource professional,
Leave administrator,
Management official, or
Another health care provider.
Second and third opinions. The employee may be required to get a second medical certification if the employer has reason to doubt the validity of a complete and sufficient certification. The employer can choose the health care provider to provide the second opinion, but generally may not select a health care provider who it employs or contracts with on a regular basis. If the second opinion is different from the original certification, the employer may require the employee to get a third certification from a health care provider selected by both the employee and employer. The opinion of the third health care provider is final and must be used by the employer. The employer is responsible for paying for the second and third opinions, including any reasonable travel expenses for the employee or family member. The employee is provisionally entitled to FMLA leave while waiting for the second or third opinion.
Recertification. In general, the employer may require an employee to provide a recertification of a serious health condition, but no more often than every 30 days and only in connection with an absence. If a certification indicates that the minimum duration of the serious health condition is more than 30 days, the employer must generally wait until that minimum duration expires before requesting recertification. However, in all cases, including those where the condition may be indefinite, the employer may request a recertification for absences every six months. The employer may request a recertification in less than 30 days only if the:
Employee requests an extension of leave
Circumstances described by the previous certification have changed significantly, or
Employer receives information that causes it to doubt the employee’s stated reason for the absence or the continuing validity of the existing medical certification.
In general, the employer may require the same information in a recertification as that permitted in the original medical certification. However, an employer may provide the health care provider with a record of the employee’s absences and ask if the serious health condition and need for leave is consistent with the leave pattern. The employee is responsible for paying for the cost of a recertification. The employee cannot be required to undergo a second or third opinion for a recertification. In most circumstances, the employee must be provided at least 15 calendar days to provide the recertification after the employer’s request.
WH-380-E: FMLA Certification of Health Care Provider for Employee’s Serious Health Condition
WH-380-F: FMLA Certification of Health Care Provider for Family Member’s Serious Health Condition
An employer may require an employee on FMLA leave to report periodically on the employee's status and intent to return to work. The employer's policy regarding such reports may not be discriminatory and must take into account all of the relevant facts and circumstances related to the individual employee's leave situation.
If an employee gives unequivocal notice of intent not to return to work, the employer's obligations under FMLA to maintain health benefits (subject to COBRA requirements) and to restore the employee cease. However, these obligations continue if an employee indicates he or she may be unable to return to work but expresses a continuing desire to do so.
It may be necessary for an employee to take more leave than originally anticipated. Conversely, an employee may discover after beginning leave that the circumstances have changed and the amount of leave originally anticipated is no longer necessary. An employee may not be required to take more FMLA leave than necessary to resolve the circumstance that precipitated the need for leave. In both of these situations, the employer may require that the employee provide the employer reasonable notice (i.e., within two business days) of the changed circumstances where foreseeable. The employer may also obtain information on such changed circumstances through requested status reports.
(a) As a condition of restoring an employee whose FMLA leave was occasioned by the employee's own serious health condition that made the employee unable to perform the employee's job, an employer may have a uniformly-applied policy or practice that requires all similarly-situated employees (i.e., same occupation, same serious health condition) who take leave for such conditions to obtain and present certification from the employee's health care provider that the employee is able to resume work. The employee has the same obligations to participate and cooperate (including providing a complete and sufficient certification or providing sufficient authorization to the health care provider to provide the information directly to the employer) in the fitness-for-duty certification process as in the initial certification process. See § 825.305(d).
Confidentiality of Records
Covered employers are required to maintain records and documents relating to FMLA medical certifications and recertifications of employees or their family members as confidential medical records. Such records are to be maintained in separate files from the usual personnel files. An employer must maintain records in conformance with the confidentiality requirements of the Americans with Disabilities Act (ADA), as amended, if applicable, and the Genetic Information Nondiscrimination Act, if applicable.
State Laws
Some States have their own family and medical leave laws. Nothing in the FMLA prevents employees from receiving protections under other laws. Workers have the right to benefit from all the laws that apply.
Protection from Retaliation
The FMLA is a federal worker protection law. Employers are prohibited from interfering with, restraining, or denying the exercise of, or the attempt to exercise, any FMLA right. Any violations of the FMLA or the FMLA regulations constitute interfering with, restraining, or denying the exercise of rights provided by the FMLA. For more information about prohibited employer retaliation under the FMLA, see Fact Sheet #77B and Field Assistance Bulletin 2022-2.
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 4 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.
FAQ: https://www.dol.gov/agencies/whd/fmla/faq
Procedure for requesting leave
(1) Notify your employer that you intend to request leave under FMLA. Ask them if they have a specific form for health care providers to complete and where the form should be sent (e.g., name of office and fax number).
(2) Sign a “release of information” form giving me permission to send a completed FMLA form to your employer. The form and instructions for completing and returning it are available here: https://www.corvallisclinic.com/wp-content/uploads/BH-ROI.pdf
(3) Let me know the degree to which you feel you can perform your job functions. Do you feel you are currently unable to do all of them or only some of them?
(4) Let me know whether you believe your leave should be continuous or intermittent or should consist of a reduced work schedule. Please be specific about what you feel this should look like. Please estimate the duration of the leave needed or the amount your schedule should be reduced.
(5) Make sure you have a follow-up appointment scheduled with me.
(6) Please be aware that the form can be updated in the future as your circumstances may change. Your employer may also want your health care provider to let them know when you are cleared to return to work.
Health care providers can be important allies in helping employees obtain the necessary job protections afforded by the FMLA by timely and accurately completing requests for certification. This flyer outlines what health care providers need to know about FMLA and the steps they can take to make sure patients’ and family caregivers’ employment is protected during serious illness.
https://www.dol.gov/agencies/whd/fmla/certification-of-a-serious-health-condition