FMLA Boot Camp

March 18, 2019  |  Tyler W. Eubank

The Basics
The Family Medical Leave Act, or FMLA, allows employees to take 12–26 months of unpaid leave for their own or a family member’s medical reasons. The FMLA generally applies to employers who have 50 or more employees. An employee covered by the FMLA must have been employed for at least a year and has worked at least 1,250 hours during preceding 12-month period.

Intermittent FMLA and Reduced Leave Schedules
Taking FMLA for a medical procedure or illness is one matter, it is another when that illness comes and goes unexpectedly. This is where intermittent FMLA and reduced leave schedules come into play. Intermittent FMLA allows employees to take FMLA in periodic blocks of time. For example, a pregnant mother may take days off in order to attend prenatal doctor appointments. Likewise, a migraine sufferer may use intermittent FMLA for migraine flare-ups.

A reduced leave schedule allows an employee to reduce the number of hours the employee works in a day or a week. This is generally allowed for an employee recovering from an illness who is not yet able to work their full schedule.

The preceding likely has you begging the questions: What illnesses are covered and how do I know that the illnesses are real?
The FMLA only applies where there is a “serious health condition.” A “serious health condition” is one that requires inpatient care of “continuing treatment by a health care provider.” While treatment does not include routine doctor and dentist visits, it does include being given a prescription such as antibiotics or therapy requiring special equipment. Oddly, the FMLA specifically provides that absences for migraines, as in the above example, are covered while run-of-the-mill headaches are not.

Once the employer has enough information to designate leave as FMLA, the employer must give a designation notice to the employee within five business days. This notice is required once every 12 months.
Importantly, if the employer will require a fitness for duty examination before the employee returns to work, this notice must inform the employee of this requirement. If the fitness for duty examination is to address the essential functions of the employee’s position, the notice must advise the employee of this requirement and provide a list of the position’s essential functions.

The employer may request certification from the employee’s medical provider. This request for certification must be made in writing, generally within five days of determining eligibility. Once the employee provides the certification, the employer may object to anything that is too vague. The employer may also seek a second opinion at the employer’s expense.
If the employer has a policy in place, the employer may require a fitness-for-duty certification prior to the employee returning to work, provided that appropriate notice has been given. This fitness-for-duty certification may also require the certifying physician to give an opinion as to the essential functions of the position.

It’s important for employers to understand the basics of the FMLA before it becomes an issue. There are options available to the employer that may be foreclosed if the employer does not have a policy in place or fails to give proper notice.

The FMLA is an exceedingly detailed statutory framework. This article provides only some basic information about the structure of the FMLA. You should seek legal advice before taking action related to the FMLA or putting a policy in place related to the FMLA. If you are concerned about your compliance with the FMLA, please contact myself or an attorney at Barna, Guzy & Steffen to discuss your policies and procedures