Phoenix Metro Area Local - Steward Online

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Have a question regarding=20 FMLA?
You should be able = to find=20 your answer = here.

QUESTIONS & = ANSWERS=20

1: How much leave am I = entitled to=20 under FMLA?

Response: If you = are an=20 "eligible" employee, you are entitled to 12 weeks of = leave for=20 certain family and medical reasons during a 12-month=20 period.

2: How is the 12-month = period=20 calculated under FMLA?

Response: Employers may select = one of=20 four options for determining the 12-month period:

the calendar year;=20
any fixed 12-month "leave year" such as a fiscal = year, a=20 year required by state law, or a year starting on = the=20 employee=92s "anniversary" date;=20
the 12-month period measured forward from the = date any=20 employee=92s first FMLA leave begins; or=20
a "rolling" 12-month period measured backward = from the=20 date an employee uses FMLA leave.=20

3: Does the law guarantee = paid time=20 off?

Response: No. The FMLA = only=20 requires unpaid leave. However, the law permits an = employee to=20 elect, or the employer to require the employee, to use = accrued=20 paid leave, such as vacation or sick leave, for some = or all of=20 the FMLA leave period. When paid leave is substituted = for=20 unpaid FMLA leave, it may be counted against the = 12-week FMLA=20 leave entitlement if the employee is properly notified = of the=20 designation when the leave begins.

4: Does workers=92 = compensation leave=20 count against an employee=92s FMLA leave=20 entitlement?

Response: It can. FMLA leave = and=20 workers=92 compensation leave can run together, = provided the=20 reason for the absence is due to a qualifying serious = illness=20 or injury and the employer properly notifies the = employee in=20 writing that the leave will be counted as FMLA = leave.

5: Can the employer count = leave=20 taken due to pregnancy complications against the 12 = weeks of=20 FMLA leave for the birth and care of my = child?

Response: Yes. An eligible = employee is=20 entitled to a total of 12 weeks of FMLA leave in a = 12-month=20 period. If the employee has to use some of that leave = for=20 another reason, including a difficult pregnancy, it = may be=20 counted as part of the 12-week FMLA leave = entitlement.

6: Can the employer count = time on=20 maternity leave or pregnancy disability as FMLA=20 leave?

Response: Yes. Pregnancy = disability=20 leave or maternity leave for the birth of a child = would be=20 considered qualifying FMLA leave for a serious health=20 condition and may be counted in the 12 weeks of leave = so long=20 as the employer properly notifies the employee in = writing of=20 the designation.

7: If an employer fails to = tell=20 employees that the leave is FMLA leave, can the = employer count=20 the time they have already been off against the 12 = weeks of=20 FMLA leave?

Response: In most situations, = the=20 employer cannot count leave as FMLA leave = retroactively.=20 Remember, the employee must be notified in writing = that an=20 absence is being designated as FMLA leave. If the = employer was=20 not aware of the reason for the leave, leave may be = designated=20 as FMLA leave retroactively only while the leave is in = progress or within two business days of the = employee=92s return=20 to work.

8: Who is considered an = immediate=20 "family member" for purposes of taking FMLA=20 leave?

Response: An employee=92s = spouse,=20 children (son or daughter), and parents are immediate = family=20 members for purposes of FMLA. The term "parent" does = not=20 include a parent "in-law". The terms son or daughter = do not=20 include individuals age 18 or over unless they are = "incapable=20 of self-care" because of mental or physical disability = that=20 limits one or more of the "major life activities" as = those=20 terms are defined in regulations issued by the Equal=20 Employment Opportunity Commission (EEOC) under the = Americans=20 With Disabilities Act (ADA).

9: May I take FMLA leave = for visits=20 to a physical therapist, if my doctor prescribes the=20 therapy?

Response: Yes. FMLA permits you = to take=20 leave to receive "continuing treatment by a health = care=20 provider," which can include recurring absences for = therapy=20 treatments such as those ordered by a doctor for = physical=20 therapy after a hospital stay or for treatment of = severe=20 arthritis.

10: Which employees are = eligible to=20 take FMLA leave?

Response: Employees are = eligible to=20 take FMLA leave if they have worked for their employer = for at=20 least 12 months, and have worked for at least 1,250 = hours over=20 the previous 12 months, and work at a location where = at least=20 50 employees are employed by the employer within 75 = miles.

11: Do the 12 months of = service with=20 the employer have to be continuous or=20 consecutive?

Response: No. The 12 months do = not have=20 to be continuous or consecutive; all time worked for = the=20 employer is counted.

12: Do the 1,250 hours = include paid=20 leave time or other absences from work?

Response: No. The 1,250 hours = include=20 only those hours actually worked for the employer. = Paid leave=20 and unpaid leave, including FMLA leave, are not = included.

13: How do I determine if = I have=20 worked 1,250 hours in a 12-month = period?

Response: Your individual = record of=20 hours worked would be used to determine whether 1,250 = hours=20 had been worked in the 12 months prior to the = commencement of=20 FMLA leave. As a rule of thumb, the following may be = helpful=20 for estimating whether this test for eligibility has = been=20 met;

24 hours worked in each of the 52 weeks of the = year; or=20
over 104 hours worked in each of the 12 months = of the=20 year;or=20
40 hours worked per week for more than 31 weeks = (over=20 seven months) of the year.

14: Do I have to give my = employer my=20 medical records for leave due to a serious health=20 condition?

Response: No. You do not have = to=20 provide medical records. The employer may, however, = request=20 that, for any leave taken due to a serious health = condition,=20 you provide a medical certification confirming that a = serious=20 health condition exists.

15: Can my employer = require me to=20 return to work before I exhaust my = leave?

Response: Subject to certain=20 limitations, your employer may deny the continuation = of FMLA=20 leave due to a serious health condition if you fail to = fulfill=20 any obligations to provide supporting medical = certification.=20 The employer may not, however, require you to return = to work=20 early by offering you a light duty assignment.

16: Are there any = restrictions on=20 how I spend my time while on leave?

Response: Employers with = established=20 policies regarding outside employment while on paid or = unpaid=20 leave may uniformly apply those policies to employees = on FMLA=20 leave. Otherwise, the employer may not restrict your=20 activities. The protections of FMLA will not, however, = cover=20 situations where the reason for leave no longer = exists, where=20 the employee has not provided required notices or=20 certifications, or where the employee has = misrepresented the=20 reason for leave.

17: Can my employer make = inquiries=20 about my leave during my absence?

Response: Yes, but only to you. = Your=20 employer may ask you questions to confirm whether the = leave=20 needed or being taken qualifies for FMLA purposes, and = may=20 require periodic reports on your status and intent to = return=20 to work after leave. Also, if the employer wishes to = obtain=20 another opinion, you may be required to obtain = additional=20 medical certification at the employer=92s expense, or=20 rectification during a period of FMLA leave. The = employer may=20 have a health care provider representing the employer = contact=20 your health care provider, with your permission, to = clarify=20 information in the medical certification or to confirm = that it=20 was provided by the health care provider. The inquiry = may=20 not seek additional information regarding your = health=20 condition or that of a family member.

18: Can my employer refuse = to grant=20 me FMLA leave?

Response: If you are an = "eligible"=20 employee who has met FMLA=92s notice and certification = requirements (and you have not exhausted your FMLA = leave=20 entitlement for the year), you may not be = denied FMLA=20 leave.

19: Will I lose my job if = I take=20 FMLA leave?

Response: Generally, no. It is = unlawful=20 for any employer to interfere with or restrain or deny = the=20 exercise of any right provided under this law. = Employers=20 cannot use the taking of FMLA leave as a negative = factor in=20 employment actions, such as hiring, promotions or = disciplinary=20 actions; nor can FMLA leave be counted under "no = fault"=20 attendance policies. Under limited circumstances, an = employer=20 may deny reinstatement to work - but not the use of = FMLA leave=20 - to certain highly-paid, salaried ("key") = employees.

20: Are there other = circumstances in=20 which my employer can deny me FMLA leave or = reinstatement to=20 my job?

Response: In addition to = denying=20 reinstatement in certain circumstances to "key" = employees,=20 employers are not required to continue FMLA benefits = or=20 reinstate employees who would have been laid off or = otherwise=20 had their employment terminated had they continued to = work=20 during the FMLA leave period as, for example, due to a = general=20 layoff.

Employees who give unequivocal notice that they do = not=20 intend to return to work lose their entitlement to = FMLA=20 leave.

Employees who are unable to return to work and have = exhausted their 12 weeks of FMLA leave in the = designated "12=20 month period" no longer have FMLA protections of leave = or job=20 restoration

Under certain circumstances, employers who advise = employees=20 experiencing a serious health condition that they will = require=20 a medical certificate of fitness for duty to return to = work=20 may deny reinstatement to an employee who fails to = provide the=20 certification, or may delay reinstatement until the=20 certification is submitted.

21: Can my employer fire = me for=20 complaining about a violation of FMLA?

Response: No. Nor can the = employer take=20 any other adverse employment action on this basis. It = is=20 unlawful for any employer to discharge or otherwise=20 discriminate against an employee for opposing a = practice made=20 unlawful under FMLA.

22: Does an employer have = to pay=20 bonuses to employees who have been on FMLA=20 leave?

Response: The FMLA requires = that=20 employees be restored to the same or an equivalent = position.=20 If an employee was eligible for a bonus before taking = FMLA=20 leave, the employee would be eligible for the bonus = upon=20 returning to work. The FMLA leave may not be counted = against=20 the employee. For example, if an employer offers a = perfect=20 attendance bonus, and the employee has not missed any = time=20 prior to taking FMLA leave, the employee would still = be=20 eligible for the bonus upon returning from FMLA = leave.

On the other hand, FMLA does not require that = employees on=20 FMLA leave be allowed to accrue benefits or seniority. = For=20 example, an employee on FMLA leave might not have = sufficient=20 sales to qualify for a bonus. The employer is not = required to=20 make any special accommodation for this employee = because of=20 FMLA. The employer must, of course, treat an employee = who has=20 used FMLA leave at least as well as other employees on = paid=20 and unpaid leave (as appropriate) are treated.

23: Under what = circumstances is=20 leave designated as FMLA leave and counted against the = employee's total entitlement?

Response: In all = circumstances, it=20 is the employer's responsibility to designate leave = taken for=20 an FMLA reason as FMLA leave. The designation must be = based=20 upon information furnished by the employee. Leave may = not be=20 designated as FMLA leave after the leave has been = completed=20 and the employee has returned to work, except if;

the employer is awaiting receipt of the medical=20 certification to confirm the existence of a serious = health=20 condition;
the employer was unaware that leave was for an = FMLA=20 reason, and subsequently acquires information from = the=20 employee such as when the employee requests = additional or=20 extensions of leave; or,
the employer was unaware that the leave was for = an FMLA=20 reason, and the employee notifies the employer = within two=20 days after return to work that the leave was FMLA=20 leave.

24: Can my employer count = FMLA leave=20 I take against a no fault absentee = policy?

Response: No.

INFORMATION DERIVED=20 FROM THE DEPARTMENT OF LABOR WEBSITE.

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