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Family Medical Leave Act (FMLA) Frequently Asked Questions ( FAQs)
- Which employees are eligible for an FMLA qualifying leave?
- Are only permanent employees eligible for FMLA qualifying leave?
- Under what circumstances are employees eligible to take a FMLA qualifying leave?
- How much time may an employee take as FMLA qualifying leave?
- If an employee uses 12 weeks of FMLA qualifying leave in one fiscal year, are they allowed another 12 weeks the following fiscal year for the same condition?
- If both husband and wife are State employees, are they both eligible for twelve weeks of FMLA
qualifying leave during the fiscal year?
- If FMLA qualifying leave is taken for the birth of a child, or for placement of a child
for adoption or foster care, must the leave be completed within a specific period of
time?
- Does FMLA leave have to be taken all at once, or can it be taken intermittently?
- Is an employee required to use paid sick leave for certain FMLA qualifying leaves?
- Are there circumstances under which an employee may request to receive paid
vacation or compensatory time in conjunction with FMLA?
- How do you determine the amount of FMLA qualifying leave used if an employee
works a fixed part-time schedule or the employee's schedule varies from week to week?
- How can an Appointing Authority determine if a request for leave is a FMLA qualifying
leave?
- How can an employee determine if his or her request for time off qualifies under
FMLA?
- Can an FMLA qualifying leave extend an employee's period of employment?
- What are an employee's job protection rights upon return from an unpaid FMLA
qualifying leave?
- How does an FMLA qualifying leave coordinate with the Statewide Sick Leave Policy?
- Can employees choose whether or not they want to use FMLA qualifying leave?
- How can an employer verify an employee’s need for leave because of a "serious health
condition"?
- Is an employee eligible to continue health insurance benefits during a FMLA qualifying
leave?
- What other insurance coverage may an employee continue during a FMLA qualifying
leave?
- May an employee choose not to retain health and dental coverage’s while on a FMLA
qualifying leave?
- May an employee choose not to retain optional coverage’s while on a FMLA qualifying
leave?
- If an employee terminates employment during the FMLA qualifying leave, may the
employer recoup the costs of the premiums paid?
- What are an employee’s COBRA rights in relation to an FMLA qualifying leave?
- What can employees do who believe that their rights under FMLA have been violated?
- How are employees protected who request leave or otherwise assert FMLA rights?
- Do State laws providing family and medical leave still apply?
- If an employee is on a non-medical leave of absence that also qualifies as an
FMLA-protected leave, should that employee's leave accrual date be adjusted in
accordance with Article 8, Section 2B?
- Do employees earn sick and vacation accruals when they are on unpaid
FMLA-qualifying leaves?
- Are employees on FMLA-qualifying leaves allowed to earn holiday pay during their
leave?
Answers
- Which employees are eligible for an FMLA qualifying leave?
An "eligible employee" is a State employee who:
- Has been employed by the State for at least 12 months, and
- Has worked and been compensated for at least 1,250 hours during the 12-month period
immediately preceding the leave (this does not include vacation, sick leave, and other paid
leave, or compensatory time—this does include overtime worked).
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- Are only permanent employees eligible for FMLA qualifying leave?
No, non-permanent employees are eligible if they meet the requirements stated under
question number one above. If employees are not in insurance eligible status, they are only
eligible for unpaid time off and not the insurance benefits.
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- Under what circumstances are employees eligible to take a FMLA qualifying leave?
- For birth of the employee’s child, and to care for the newborn child;
- For placement with the employee of a child for adoption or foster care;
- To care for the employee's spouse, son, daughter, or parent with a serious health
condition; and
- Because of a serious health condition that makes the employee unable to perform the
functions of the employee's job.
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- How much time may an employee take as FMLA qualifying leave?
Eligible employees may take up to twelve workweeks of leave during each fiscal year with
the following exceptions:
Exceptions:
If a husband and wife both work for the State, refer to Question No. 6.
If the leave is taken for the birth of a child or the placement of a child for adoption or foster
care, refer to Question No. 7.
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- If an employee uses 12 weeks of FMLA qualifying leave in one fiscal year, are they allowed another 12 weeks the following fiscal year for the same condition?
Yes, provided the employee still meets all the eligibility criteria (including 1250 hours worked
in the year preceding the request).
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- If both husband and wife are State employees, are they both eligible for twelve weeks of FMLA
qualifying leave during the fiscal year?
Yes. However, a husband and wife may take only a combined total of twelve weeks of
FMLA qualifying leave per fiscal year under the following situations:
- For the birth of a son or daughter and to care for the newborn child;
- For placement of a child with the employee for adoption or foster care;
- To care for the employee’s parent (not parent-in-law) who has a serious health condition.
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- If FMLA qualifying leave is taken for the birth of a child, or for placement of a child
for adoption or foster care, must the leave be completed within a specific period of
time?
Although it is possible that an employee could qualify for two separate FMLA qualifying
leaves for the birth or placement of a child (under the condition explained in Question No. 5
above), all FMLA qualifying leaves must be completed within 12 months of the birth or
placement of a child. The 12-month period begins on the date of birth or placement.
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- Does FMLA leave have to be taken all at once, or can it be taken intermittently?
FMLA qualifying leave taken for the employee’s own serious health condition, or for the
serious health condition of the employee’s spouse, son, daughter, or parent, may be taken
intermittently or on a reduced schedule if "medically necessary" and if that medical need can
best be accommodated by an intermittent schedule. If the need for intermittent leave or a
reduced schedule is documented by the employee’s or family member’s health care provider
as "medically necessary", such leave shall be granted. Intermittent leave for the
birth/placement of a child may be granted at the discretion of the Appointing Authority.
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- Is an employee required to use paid sick leave for certain FMLA qualifying leaves?
Yes. FMLA allows an employer to require the use of paid leave for certain qualifying events
as stated under the terms of the collective bargaining agreements and compensation plans.
Employees must use sick leave for the reasons authorized by the bargaining agreement/plan
provisions. The FMLA does not require an employer to expand the use of paid leave.
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- Are there circumstances under which an employee may request to receive paid
vacation or compensatory time in conjunction with FMLA?
An employee may request and receive paid vacation or compensatory time. Granting of
vacation or compensatory time is not subject to any other employer requirements such as
seniority or staffing needs.
However, the employee must attempt to schedule foreseeable qualifying leave so as not to
unduly disrupt the employer's operation. If the employee is unable to provide sufficient
documentation to determine FMLA eligibility, the employee shall be placed on unpaid leave
until such documentation is made available to the employer.
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- How do you determine the amount of FMLA qualifying leave used if an employee
works a fixed part-time schedule or the employee's schedule varies from week to week?
The amount of FMLA qualifying leave is determined on a prorata basis by comparing the
requested schedule with the employee's normal schedule.
Where the schedule varies from week to week, a weekly average of the hours worked over
the 12 weeks prior to the beginning of the leave period is used to calculate the employee's
normal workweek.
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- How can an Appointing Authority determine if a request for leave is a FMLA qualifying
leave?
- An employee requesting leave shall be asked the question, "Is the request for paid or
unpaid time off for the purpose of an FMLA qualifying event (yes) (no)?"
- If an employee requests a leave prior to completing a request for leave slip, a supervisor
may ask the reason for the leave. The supervisor will ask for this information solely for the
purpose of determining whether the leave is FMLA qualifying and/or if under the terms of
the State's contracts or compensation plans an employee is eligible for paid or unpaid time
off.
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- How can an employee determine if his or her request for time off qualifies under
FMLA?
- Notices explaining the Act's provisions and providing information concerning the
procedures for filing complaints of violations of the Act shall be posted in conspicuous
places at the worksite.
- An employee may ask his or her supervisor, contact the personnel office or their union to
ask questions concerning the employee's rights and responsibilities under the FMLA.
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- Can an FMLA qualifying leave extend an employee's period of employment?
No.
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- What are an employee's job protection rights upon return from an unpaid FMLA
qualifying leave?
An eligible employee shall be restored to the same position that the employee held when the
FMLA qualifying leave began, or to an equivalent position with equivalent benefits, pay, and
other terms and conditions of employment such as same shift, equivalent hours, etc.
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- How does an FMLA qualifying leave coordinate with the Statewide Sick Leave Policy?
The Act prohibits an employer from discriminating against employees who use FMLA
qualifying leave. Therefore, the FMLA qualifying leave cannot be referred to in any
employment actions including but not limited to discipline and selection.
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- Can employees choose whether or not they want to use FMLA qualifying leave?
No. It is the employer’s responsibility to designate leave as qualifying under FMLA. An
employee may not choose whether leave shall be counted towards FMLA qualifying leave.
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- How can an employer verify an employee’s need for leave because of a "serious health
condition"?
The Appointing Authority’s FMLA designation decision must be based only on information
received from the employee or the employee’s spokesperson.
An employer may also 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 approved by the employer and employee. The third opinion will be final.
If a leave request is for the serious health condition of a family member, the employer can
require the employee to provide certification from a health care provider.
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- Is an employee eligible to continue health insurance benefits during a FMLA qualifying
leave?
During an FMLA qualifying leave, the employee and dependent health and dental insurance
coverage is maintained on the same basis as coverage would have been provided if the
employee had been continuously employed during the entire leave period.
Employees who receive the partial employer contribution must continue to pay their portion of
the premium in order to retain this coverage. If the employee fails to make their premium
payments, they will lose the coverage and may not be covered for any claims, which may have
occurred while on FMLA qualifying leave.
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- What other insurance coverage may an employee continue during a FMLA qualifying
leave?
An employee may continue all coverage, which they had prior to going on the FMLA
qualifying leave, by paying the full cost of the premium. This includes, but is not limited to,
basic, optional, spouse, child life insurance and short term and long term disability insurance.
If the employee takes leave due to a work-related disability, short-term disability may not be
continued. It may be reinstated upon the employee’s return to work.
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- May an employee choose not to retain health and dental coverage’s while on a FMLA
qualifying leave?
Yes, an employee may choose not to retain these coverage’s. The coverage’s will be reinstated
upon the employee’s return to work.
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- May an employee choose not to retain optional coverage’s while on a FMLA qualifying
leave?
Yes, however, they may have the coverage’s reinstated upon return to work, if the return to
work is within the allotted twelve weeks of FMLA qualifying leave. If the leave goes beyond
twelve weeks, the employee must reapply with evidence of good health. If an employee
chooses not to retain optional coverage’s, they will not be covered for any claims that may
have occurred while they were on leave.
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- If an employee terminates employment during the FMLA qualifying leave, may the
employer recoup the costs of the premiums paid?
Yes, an employer may recover its share of premiums paid during a period of unpaid FMLA
qualifying leave from an employee if the employee fails to return to work (for at least thirty
(30) calendar days) after the leave unless the employee does not return due to the
continuation, recurrence or onset of the serious health condition, or due to other
circumstances beyond the employee’s control.
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- What are an employee’s COBRA rights in relation to an FMLA qualifying leave?
As it relates to FMLA qualifying leave, the COBRA qualifying event is termination of
employment, or the end of the leave—whichever comes first. Once the COBRA qualifying
event occurs, the employee may choose to "continue" health and dental by paying the entire
cost of coverage—even though the employee did not pay their share of the premium during
the FMLA qualifying leave.
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- What can employees do who believe that their rights under FMLA have been violated?
The employee has the choice of:
- Filing, or having another person file on his or her behalf, a complaint with the Secretary of
Labor, or
- Filing a private lawsuit pursuant to section 107 of FMLA.
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- How are employees protected who request leave or otherwise assert FMLA rights?
The FMLA prohibits an employer from interfering with, restraining, or denying the exercise of
(or attempts to exercise) any rights provided by the Act.
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- Do State laws providing family and medical leave still apply?
Nothing in FMLA supersedes any provision of State law. However, if leave qualifies for
FMLA and for leave under State law, the leave used counts against the employee’s
entitlement under both laws.
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- If an employee is on a non-medical leave of absence that also qualifies as an
FMLA-protected leave, should that employee's leave accrual date be adjusted in
accordance with Article 8, Section 2B?
No. Accrual dates shall not be adjusted for employees on FMLA-qualifying leaves whether
medical or not.
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- Do employees earn sick and vacation accruals when they are on unpaid
FMLA-qualifying leaves?
No. Employees only earn sick and vacation accruals when they are in a paid status. In
addition, an employee being paid less than eighty (80) hours in a pay period due to an
FMLA-qualifying unpaid leave will have his/her sick/vacation accruals prorated in accordance
with Appendix C and D.
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- Are employees on FMLA-qualifying leaves allowed to earn holiday pay during their
leave?
Only if they are in a paid status on the normal work day before and after the holiday, in
accordance with their Bargaining Unit Contract.
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