Family Medical Leave Act FAQs
Q: Who is considered an "immediate family member" for purposes of FMLA leave?
A: Under the FMLA, immediate family members are spouses, children, and parents. Spouses must be legally married partners, as the FMLA does not apply to unmarried domestic partners. The term parent does not include a "parent-in-law," (your spouse's parent). Children must be under 18, unless they are incapable of self-care because of a mental or physical disability. "Children" refers to biological children, adopted children, foster children, step-children, or any child for whom the employee is acting in a parental capacity. Care for grandparents, in-laws, and siblings is not covered under the FMLA.
Some state and local laws cover these terms more broadly, so please check with a local plaintiff's employment attorney if you have further questions. For example, Connecticut state law extends coverage to a "parent-in-law," or a spouse's parent.
Q: Is there any way to obtain paid leave under the FMLA?
A: The FMLA only covers unpaid leave. You can elect to take accrued paid leave (such as vacation time or "sick days") for part or all of the FMLA leave period. When accrued paid leave is substituted for unpaid FMLA leave, the employer may count it against the 12 week FMLA leave period, if the employer notifies the employee of this at the beginning of the leave period.
Q: Does the FMLA protect men who take leave to care for a newborn or adopted child?
A: Yes. The FMLA protects men and women equally.
Q: Is FMLA leave the same as workers compensation leave?
A: No, but an employer can count a workers compensation leave as FMLA leave if it notifies the employee in writing before the leave period.
Q: Can pregnancy leave be considered FMLA leave?
A: Yes, as long as the employer notifies the employee in writing before the beginning of the leave period.
Q: If I have complications during pregnancy, can I obtain extended leave under the FMLA?
A: The FMLA does not cover extended maternity leave for complications during pregnancy. Check your local state laws and your company's human resources department for ways to extend your leave.
Q: What if my employer does not notify me that my pregnancy or workers compensation leave is considered FMLA leave?
A: Usually, an employer cannot retroactively (after the fact) count the leave as FMLA leave. An employee must be notified in writing that a leave is designated as FMLA leave. If the employer did not know the reason for the leave, it may retroactively count it as FMLA leave while the leave is in progress, or within two business days after the employee returns to work.
Q: Does FMLA leave cover continuing visits to a physical therapist?
A: FMLA leave covers "continuing treatment by a health care provider." This includes absences over a period of time for therapy treatments prescribed by a doctor after hospital treatment or for the treatment of severe arthritis.
Q: Do I have to provide medical records to my employer to take FMLA leave?
A: While an employer may request medical certification from a doctor to confirm a serious health condition, you are not required to provide your employer with medical records.
Q: Can my employer make me obtain a "second opinion" about my medical condition when I request FMLA leave?
A: An employer can require additional medical certification at its own expense. It may also have a health care provider contact your health care provider, with your permission, to confirm information in your medical certification. However, the employer may not seek additional information about your health condition or that of a family member.
An employer may also require re-certification during the period of leave, as well as reports regarding the employee's medical status and intent to return to work.
Q: If my spouse and I are employed by the same employer, how much FMLA leave can we each take for the birth of our child?
A: If you and your spouse work for the same employer, you may only take a combined total of 12 weeks FMLA leave for the birth, adoption or foster care of a child.
Q: Is my employer required to maintain my health benefits while I am on FMLA leave?
A: Yes, an employer is required to maintain any benefits you had or would have had if you had not taken FMLA leave. However, if you decide not to return to work when your leave ends, your employer can require you to reimburse him/her for the premiums he/she paid during your leave.
Q: How much notice am I required to give my employer to take FMLA leave?
A: If the need to take leave is foreseeable, employees are required to give 30 days notice to their employer. If you have a medical emergency, it may not be foreseeable or practical to give notice. However, if the leave is for planned medical treatment, the employee must try to schedule the treatment so as not to unduly disrupt the employer's business.
Q: Can I collect unemployment insurance if I am on FMLA leave?
A: No, you may not.
Q: Am I guaranteed reinstatement after FMLA leave?
A: You have no greater right to reinstatement than you would have had if you had not taken leave. In other words, if your position is eliminated while you are out on leave, you do not have the right to be reinstated. However, this is only true if the elimination of your job is unrelated to your leave. For example, if you work in the accounting department and your employer decides, while you are on leave, to lay off the entire department and outsource the company's bookkeeping needs, you are not entitled to reinstatement. But your employer cannot eliminate your position because you were out on leave. That would constitute retaliation against you for taking leave.