FMLA Questions and Answers from the iLinc Webinars

Examples of a serious health condition include heart attack, many heart conditions, most cancers, stroke, back conditions requiring extensive therapy or surgery, spinal injury, pneumonia, pregnancy, miscarriage, complications or illness relating to pregnancy, the need for prenatal care, childbirth and recovery from childbirth, severe allergies, migraine headaches or stress. Substance abuse also may be a serious health condition. However, FMLA leave may only be taken for treatment of substance abuse. An absence because of the employee’s use of a substance, rather than for treatment, does not qualify for FMLA leave.

Transitory or minor health conditions for which treatment and recovery are very brief do not constitute serious health conditions for the purposes of the FMLA. Ordinarily, unless complications arise, the common cold, the flu, ear aches, upset stomach, minor ulcers, headaches other than migraines, routine dental or orthodontia problems, periodontal disease, etc., are examples of conditions that do not meet the definition of a “serious” health condition. Likewise, cosmetic treatments, such as most treatments for acne or orthodontia which are elective and not medically necessary do not constitute serious health conditions unless inpatient hospital care is required or complications develop. Additionally, routine physical examinations are specifically excluded from the definition of a serious health condition.

The effective date is the date that the employee first used FMLA leave.

No; FMLA leave runs concurrently with paid leave time.

Yes, vacation and sick leave are used concurrently with FMLA. However, if FMLA leave is taken to care for a family member, the only sick leave that can be used is enforced leave.

The Leave Retention form (Form CFN 552-00649 7/2000) was inadvertently omitted from the list of FMLA forms currently in use. This form is still in use for AFSCME and non-contract employees, and is available on the FMLA website.

Per the Managers and Supervisors manual, all appropriate paid leave must be exhausted before LWOP is granted. There is not any particular order of use.

Employees are required to use accrued compensatory leave, holiday compensatory time, and banked holiday during periods of FMLA leave.

It depends on the reason the employee is gone. In all cases, it is the employer’s responsibility to designate leave as FMLA-qualifying. In this situation, the employer should ask enough questions to determine if an FMLA-covered condition exists. If so, the employer should give the employee a Notice of Eligibility and Rights & Responsibilities, a Designation Notice, and, if needed, a Certification of Health Care Provider.

An employee who calls in sick might be eligible for FMLA; this is determined by the length of the absence and the reason for the absence.

The employee has 15 days to provide the completed Certification of Health Care provider to the employer.

If the employee fails to return the forms, then they are not protected by the FMLA and could be subject to discipline.

The employer is responsible for designating leave as FMLA. Even if the application is not filled out, the employer can still make an FMLA designation and require that the employee provide a Certification of Serious Health Condition. However, the designation and notification thereof must be done timely (within five business days of the date the leave has been designated or does not qualify).

It appears that the employer can designate FMLA whether or not the employee asks for it or wants it to be designated. Is that correct?

Yes.

The employee is not responsible for requesting FMLA; they are responsible for providing enough information to allow the employer to determine if leave is FMLA-qualifying.

Yes; however, you may only seek a fitness-for-duty certification with regard to the health condition that caused the employee’s need for FMLA leave. Employers are not entitled to a certification of fitness to return to duty for each absence taken on an intermittent or reduced leave schedule. However, an employer is entitled to a certification of fitness to return to duty for such absences up to once every 30 days if reasonable safety concerns exist regarding the employee’s ability to perform his or her duties, based on the serious health condition for which the employee took such leave.

Yes, employers can ask for enough information from the employee that will allow them to make a determination as to whether or not the leave might qualify as FMLA.

The regulations do not specify; this can be administered in the manner that is most convenient for departments. It may be more convenient to ask for new certifications in conjunction with the first FMLA absence of the new fiscal year as it may be difficult to manage the receipt of new certifications for all employees using intermittent FMLA at the same time.

The employer is responsible for paying for the second opinion. It has been a practice in some agencies to require that a claim be submitted to the employer-sponsored health plan for payment. In that situation, the employer pays for charges that are not covered by the insurance carrier.

Yes. In all cases, the employee is responsible for providing documentation to their employer.

Section 825.307 of Part 29 of the Code of Federal Regulations allows employers the right to authenticate and clarify leave taken for a family member (emphasis added):

825.307 Authentication and clarification of medical certification for leave taken because of an employee’s own serious health condition or the serious health condition of a family member; second and third opinions.

(a) Clarification and authentication. If an employee submits a complete and sufficient certification signed by the health care provider, the employer may not request additional information from the health care provider. However, the employer may contact the health care provider for purposes of clarification and authentication of the medical certification (whether initial certification or recertification) after the employer has given the employee an opportunity to cure any deficiencies as set forth in § 825.305(c).

No, qualifying exigency leave may only be used by eligible family members.

The service member designates the next of kin in writing. The employer would likely not know this information unless they requested documentation from the employee seeking to use military caregiver leave.

No, only leave taken to care for the servicemember is counted toward the 26 weeks.

For leave because of a qualifying exigency, it would depend on which qualifying exigency the employee is using leave for. If the qualifying exigency is also an eligible reason for the employee to use enforced leave, then the employee could use enforced leave. The same goes for military caregiver leave. However, if the employee is a next of kin who is not considered an immediate family member, they would not be eligible to use enforced leave.