QUESTIONS AND ANSWERS – FMLA

Following are answers to commonly asked questions about the new Family and Medical Leave

Act (FMLA) regulations. The effective date of the revised FMLA regulations is January 16,

2009.

The California Family Rights Act (CFRA) is a State law that also provides for unpaid leaves of

1. Q. Can I still use FMLA/CFRA leave during pregnancy or after the birth of a

child?

A. Yes. An employee’s ability to use FMLA leave during pregnancy or after the birth

of a child has not changed. Under the regulations, a mother can use 12 weeks of

FMLA leave for the birth of a child, for prenatal care and incapacity related to

pregnancy, and for her own serious health condition following the birth of a child.

A father can use FMLA leave for the birth of a child and to care for his spouse

who is incapacitated (due to pregnancy or child birth).

A. No. A “serious health condition” is defined as an illness, injury, impairment, or

physical or mental condition that involves inpatient care or continuing treatment

by a health care provider.

Eligibility for FMLA Leave

1. Q. I have 12 months of service with my employer, but they are not

consecutive. Do I still qualify for FMLA?

in order for the employee to qualify for FMLA leave.

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2. Q. If I have to miss work due to National Guard or Reserve duty, will this affect

my eligibility for FMLA leave?

A. No. The regulations make clear the protections for our men and women serving

in the military by stating that a break in service due to an employee’s fulfillment of

military obligations must be taken into consideration when determining whether

an employee has been employed for 12 months or has the required 1,250 hours

determining whether the employee has been employed at least 12 months by the

employer.

Example:

Dean worked for his employer for six months in 2008, then was called to active

duty status with the Reserves and deployed to Iraq. In 2009, Dean returned to

his employer, requesting to be reinstated under the USERRA. Both the hours

and the months Dean would have worked but for his military status must be

counted in determining his FMLA eligibility.

providing information regarding procedures for filing a claim under the Act in a

conspicuous place where it can be seen by employees and applicants. Under

the regulations, this posted notice includes additional information regarding the

definition of a serious health condition, the new military family leave entitlements,

and employer and employee responsibilities. Employers must also include the

information in this general notice in any employee handbook or other written

policies or manuals describing employee benefits and leave provisions.

Additionally, under the regulations, an employer without a handbook or written

guidance is required to provide this general notice to new employees upon hiring.

the employee requesting leave or the employer learning that an employee’s

leave may be for a FMLA-qualifying reason.

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3. Q. Does an employer have to provide employees with information regarding

their specific rights and responsibilities under the FMLA?

A. Yes. At the same time an employer provides an employee notice of the

employee’s eligibility to take FMLA leave, the employer must also notify the

employee of the specific expectations and obligations associated with the leave.

Among other information included in this notice, the employer must inform the

within five business days of receipt of the employee’s first notice of the need for

FMLA leave subsequent to any change. Employers are expected to responsively

answer questions from employees concerning their rights and responsibilities.

4. Q. How soon after an employee provides notice of the need for leave must an

employer notify an employee the leave will be designated and counted as

FMLA leave?

A. Under the regulations, an employer must notify an employee whether leave will

be designated as FMLA leave within five business days of learning the leave is

The designation notice must also state whether the employer will require the

an employer must inform an employee of the number of hours, days, or weeks

that will be counted against the employee’s FMLA leave entitlement in the

designation notice. Where it is not possible to provide the number of hours,

days, or weeks that will be counted as FMLA leave in the designation notice (i.e.

where the leave will be unscheduled), an employer must provide this information

upon request by the employee, but no more often than every 30 days and only if

leave was taken during that period.

required to provide notice “as soon as practicable.” Employees must also

provide notice as soon as practicable for foreseeable leave due to a qualifying

exigency; regardless of how far in advance such leave is foreseeable. The

regulations clarify that it should be practicable for an employee to provide notice

of the need for leave that is foreseeable either the same day or the next business

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When the need for leave is unforeseeable, employees are required to provide

notice as soon as practicable under the facts and circumstances of the particular

case, which the regulations clarify will generally be within the time prescribed by

the employer’s usual and customary notice requirements applicable to the leave.

longer need leave on Thursday for physical therapy, but will need leave on Friday

instead. Mandy has provided notice of her need for foreseeable leave as soon as

practicable.

2. Q. What information must an employee give when providing notice of the

need for FMLA leave?

A. When an employee seeks leave for the first time for a FMLA-qualifying reason,

the employee does not need to specifically assert his or her rights under FMLA,

or even mention FMLA. The employee must, however, provide “sufficient

anticipated timing and duration of the leave.

that the employee has been hospitalized overnight; whether the employee or the

employee’s family member is under the continuing care of a health care provider;

if the leave is due to a qualifying exigency, that a covered military member is on

active duty and that the requested leave is for a qualifying exigency; if the leave

is to care for a family member, that the condition renders the family member

unable to perform daily activities, or that the family member is a covered

servicemember with a serious injury or illness; and the anticipated duration of the

absence if known.

Additionally, the regulations require an employee seeking leave due to a FMLA-

protected leave either to reference specifically the qualifying reason for leave or

Certification of Need for FMLA Leave

1. Q. Do I have to give my employer my medical records for leave due to a

serious health condition?

A. No. An employee is not required to give the employer his or her medical records.

The employer, however, does have a statutory right to request an employee

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Note: Under CFRA the employer cannot ask for a diagnosis but it may be

provided at the employee’s option.

2. Q. What if I do not want my employer to know about my medical condition?

3. Q. How soon after I request leave does my employer have to request a

medical certification of a serious health condition?

A. Under the regulations, an employer should request medical certification, in most

cases, at the time an employee gives notice of the need for leave or within five

business days. If the leave is unforeseen, the employer should request medical

certification within five days after the leave begins.

4. Q. What happens if my employer says my medical certification is incomplete?

A. An employer must advise the employee if it finds the certification is incomplete

regulations require the employer state in writing what additional information is

A. No. An employer may not require an employee to sign a release or waiver as

part of the medical certification process. The regulations specifically state that

completing any such authorization is at the employee’s discretion. Whenever an

employer requests a medical certification, however, it is the employee’s

responsibility to provide the employer with a complete and sufficient certification.

If an employee does not provide either a complete and sufficient certification or

an authorization allowing the health care provider to provide a complete and

sufficient certification to the employer, the employee's request for FMLA leave

may be denied.

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7. Q. Can employers require employees to submit a fitness-for-duty/return-to-

work certification before returning to work after being absent due to a

A. Yes. As a condition of restoring an employee who was absent on FMLA leave

due to the employee’s own serious health condition, an employer may have a

uniformly applied policy or practice that requires all similarly situated employees

Note: While the general restriction on obtaining a new fitness-for-duty

certification following each intermittent leave event remains intact, the final

regulations allow an employer to obtain a certification of fitness to return to duty

for intermittent absences up to once every 30 days if “reasonable safety

concerns” exist regarding the employee’s ability to perform his or her duties.

8. Q. What happens if I do not submit a requested medical or fitness-for-duty

(absent sufficient explanation of the delay), FMLA protection for the leave may be

the employer may delay job restoration until the employee provides the

certification. If the employee never provides the certification, he or she may be

denied reinstatement.

A. Under the regulations, an employee may choose to substitute accrued paid leave for

employer’s applicable paid leave policy. The regulations also clarify that substituting

memorandum of understanding.