Frequently asked questions about FMLA
The FMLA has been revised serveral times and keeping up to date on new items and interpretation is critical for compliance. We continually update this page to address commonly asked questions.
[EXPAND What is FMLA?]
It is a federal regulation that provides job protection to eligible employees who are out due to:
- A serious health condition
- Care for family member with a serious health condition
- Incapacitated due to pregnancy, prenatal care or child birth
- The birth, adoption or foster care placement of a child
- Paternity/baby bonding
- Care for a serviceman
- Qualifying exigencies for family member on active duty
[EXPAND What does FMLA stand for?]
Family and Medical Leave Act
[EXPAND Who is eligible for FMLA?]
Any employee is who has been employed by an eligible company for 1 year and has worked over 1,250 hours in the past 12 months.
[EXPAND What makes a company FMLA eligible? ]
According to federal regulations, any company with 50 or more employees in a 75-mile radius in the U.S. must offer FMLA. State specific regulations can vary by state. Check our state regulations page (Click here – Link to State Maps) to learn more about your state regulations
[EXPAND How does FMLA protect my employee’s job?]
The federal regulations mandate that when an employee out on FMLA returns to work, they must be returned to their original or equivalent position.
[EXPAND How much time can employees take off while on FMLA?]
Eligible employees are allowed up to a total of 12 weeks of consecutive or intermittent leave in a 12-month period. Caregivers for an injured service member can take 26 weeks of leave in a 12-month period
[EXPAND Can an employee have more than one FMLA case?]
Yes. An employee is allowed 12 weeks total of FMLA time in a 12-month period, regardless of the number of FMLA cases open.
[EXPAND What is Intermittent FMLA?]
Intermittent FMLA is taking time in periodic increments vs. one straight block. The employer must track the time used.
[EXPAND Can an employee be transferred to a different position while on Intermittent FMLA?]
Yes. If the intermittent FMLA is foreseeable, then the employer may require the employee to transfer temporarily, (i.e. during the period that the intermittent or reduced schedule is required) to an available alternate position for which the employee is qualified and better accommodates the employees recurring periods of leave.
[EXPAND Can an employee be laid-off while on FMLA?]
Yes, FMLA does not protect the employee from a downsizing that would have occurred regardless of whether the employee was working or out of work.
[EXPAND How much notice must an employee give before taking FMLA leave?]
When the need for a leave is foreseeable (e.g., expected birth, adoption, planned medical treatment, etc.), an employee must give at least 30-days notice. If 30-days notice is not possible, an employee is required to provide notice as soon as practicable.
[EXPAND What are the criteria for Caregiver for a Service Member?]
The service member must be a spouse, child or next of kin who suffered a serious injury while on active duty within the past five years. FMLA grants 26 weeks in a 12-month period to care for Service Members.
[EXPAND What is Military Exigency Leave?]
Up to 12 weeks of FMLA time for family members of Active Duty, National Guard and Reserve members to help sort out the affairs of a family member called to active duty.
[EXPAND What are the criteria to take FMLA time to care for a loved one?]
An employee is entitled to up to 12 weeks to care for a spouse, parent or child with a serious health condition. The regulation has recently updated the definition of “spouse” and “child”. A legally married same sex spouse is now eligible. Caring for a child under the age of 18 years old includes anyone who steps in to provide care or financial support. This can be a foster parent, grandparent, stepparent, guardian or other relative or unrelated adult.
[EXPAND Can you take FMLA to care for a child over 18 years old?]
To qualify for care of a child over the age of 18 the child must be “incapable of self-care because of a mental or physical disability” at the time that the FMLA leave commenced. Incapable of self-care means that the child needs supervision in three or more ADLs (activities of daily living) or IADLs (instrumental activities of daily living). Physical or mental disability means a physical or mental impairment that substantially limits one or more major life activities.
[EXPAND How does an employee get FMLA approved?]
An employee completes the Department of Labor medical certification forms with their healthcare provider and returns them within 15 days to their human resources department or a third party provider. If partnering with Work & Well, the information is reviewed by a clinician to ensure it is complete and medical validity. Within two days from receiving the information, Work & Well will either approve or deny the case, or requests additional information.
[EXPAND When additional information is requested, how many days does the employee have to provide the additional information? ]
[EXPAND How soon after an employee provides notice for leave must we notify the employee that the leave will count as FMLA leave?]
Within five business days.
[EXPAND Does light duty count against FMLA time?]
No, but reduced-schedule time does count. An employee’s acceptance of a “light duty” assignment does not constitute a waiver of the employee’s perspective rights, including the right to be restored to the same or equivalent position the employee held at the time their FMLA leave commenced. The employee’s right to restoration however, ceases at the end of the applicable 12 month FMLA year.
[EXPAND Is an employee required to follow an employer’s normal call-in procedures when taking FMLA leave?]
Yes. Failure to do so can be grounds for disciplinary actions. To be counted as FMLA time, the employee must state the absence is for FMLA if they have an approved open FMLA case. If the employee has multiple open FMLA cases, the employee must also indicate which case (i.e. caregiver, self ) they are calling out for.
[EXPAND Can mandatory overtime be counted against an employee’s FMLA time?]
[EXPAND When should I offer an employee FMLA?]
It is better to inform an employee of FMLA than not to inform them. Always inform an employee of FMLA if they were out of work for more than three consecutive days, if they are frequently calling out, or if you’ve noticed a change in their work habits, possibly due to a medical condition.
[EXPAND When is a second opinion on an employee’s medical condition necessary?]
A second opinion and/or an Independent Medical Exam (IME) is used to verify an employee’s condition or the medical validity of the paperwork by a doctor other than their own. A second opinion exam is only allowed at the beginning of the employee’s certification year.
[EXPAND What are employers FMLA posting requirements?]
In a conspicuous place, employers must post a general notice explaining FMLA provisions and procedures for filing a claim. Failure to do so can result in a fine.
[EXPAND How often can you ask an employee to recertify their FMLA case?]
It depends on the timeframe the doctor puts on the paperwork. However, if the doctor does not specify a timeframe, you may request recertification at six months. Additionally, under certain circumstances (i.e. employee requests leave extensions, circumstances have changed significantly, or there is reason to suspect abuse) you can ask for recertification on a more frequent basis.
[EXPAND How can you help reduce the number of medical leaves taken at my company?]
Work & Well’s clinicians medically review every case to ensure its completeness and medical validity. Although the vast majority of cases are legitimate, Work & Well can help detect those cases that do not meet the DOL criteria for FMLA leaves.
Work & Well works to ensure that those employees who meet the DOL criteria receive their FMLA leave entitlement. Our clinical team reviews out-of-work notes, completed and clarified certifications, second and third opinion examinations and guidelines. Working with the employee, the healthcare provider and our client’s team, we are very successful in ensuring that only those that meet the FMLA’s serious medical condition criteria and are unable to perform an essential job function receive the FMLA leave entitlement.
This diligence enables us to give you the best medical recommendations and reduce your frequency of leaves.
[EXPAND How quickly can I determine the status of a case?]
When partnering with Work & Well, you have immediate access, 24/7, through our real-time web portal to track any case. Our secure password-protected website provides up-to-the-minute case status. The web portal allows our clients to run semi-customized reports, submit leave information and download application forms.
If you prefer talking with a live person, you can call our toll-free number and speak to one of our Customer Care Representatives or a medical professionals.
[EXPAND How can I reduce casual absenteeism?]
Work & Well performs something no other company does—a complete medical certification for FMLA. Like our competitors, we ensure that the leave meets the criteria outlined by the Department of Labor as a serious health condition (SHC). However, Work & Well further checks to make sure that the employee’s SHC also prevents the employee from performing at least one of their essential job functions. By taking this extra step, we identify many FMLA requests that do not qualify.
[EXPAND How does Work & Well get more details?]
We work as your healthcare professional. Our nurses and physician consultants look at each request to ensure that it is medically valid and meets all DOL requirements. If not, we will return the certification paperwork to the employee or the treating healthcare provider for completion or clarification.
[EXPAND What if my employees won’t sign a “release of medical information” form?]
Work & Well respects every person’s privacy. However, there are times when we need additional clarification from the employee’s healthcare provider. If the employee has not signed the medical release and we need clarifying information, Work & Well will send the request to the employee. It is then the employee’s responsibility to contact their healthcare provider and get the information back to Work & Well within the required timeframe. Without, this information Work & Well cannot will medically certify that the leave time qualifies as FMLA.
[EXPAND Do you work with unions?]
Yes, Work & Well has decades of experience working with organized labor. Our client’s unions cover the entire spectrum; from large, well know unions to clients with small, client specific unions.
[EXPAND My consultant is recommending an “integrated” approach of consolidating my short-term disability (STD) and FMLA services with my long-term-disability (LTD) carrier. Does this make sense?]
Yes. However, this integration is more on paper than in practice. Few if any companies, including the very large LTD carriers, do the entire process at one location. Some companies even sub-contract FMLA to a different company in a different state. And virtually none of the large carriers handle both work AND non-work related medical leaves in the same location.
Work & Well not only handles all leaves in the same location, but in most cases, all leaves are handled by the same medical personnel. That’s true integration.
[EXPAND We have offices throughout the country, including California. Due to the CFRA, we are unable to request medical information from employees. How does this effect Work & Well’s medical review and certification services?]
Under CFRA you can request limited documentation however the request must meet the guidelines. In cases of suspected abuse, we request frequent certifications or recommend 2nd and 3rd medical opinions.
[EXPAND We have a very generous leave policy meaning that we have little abuse. However, the time we are spending on medical leaves is overwhelming. How can Work & Well help us?]
Work & Well provides a solid, time tested approach for medical leave management, case management and medical review. Our full case management services include application administration, complete medical review, documentation, follow-up, tracking and reporting. Our clinical medical review of each case ensures the medical validity of the case while monitoring for suspicious patterns of time out of work. With our full case management services, we can save you valuable time while ensuring that you are compliant with all federal and state regulations.