Family Medical Leave Act FAQs

The Family Medical Leave Act (FMLA) entitles eligible employees to take up to 12 weeks of unpaid, job-protected leave each year. The employee must be employed for at least one year and have worked at least 1,250 hours during the previous 12 months.

The below is a list of frequently asked questions about the FMLA. For more information, read the policy, attend a Be Well session on leave, or contact the GTHR leave specialist. 

Questions by Category:

Eligibility

Restrictions

Employee Termination

Eligibility

Are all employees eligible to take FMLA leave?
No.  Employees are eligible to take FMLA leave if they have worked for their employer (employer must be a “covered” employer as defined by the FMLA) for at least 12 months, and have worked at least 1,250 hours over the previous 12 months, and work at a location where at least 50 employees are employed by the employer within a 75-mile radius. Georgia Tech is a covered employer.

Do the 12 months of service with the employer have to be continuous or consecutive?
No. The 12 months do not have to be continuous or consecutive; all time worked for the employer is counted, however service prior to a 7-year break in service is not counted unless the break was due to National Guard/Reserve military service or a written agreement exists stating the employer’s intention to rehire the employee after the break in service.

Do the 1,250 hours include paid leave time or other absences from work?
No. The 1,250 hours include only those hours actually worked for the employer. Paid leave and unpaid leave, including FMLA leave, are not included.

How does an employer determine if an employee has worked 1,250 hours in a 12-month period?
The employee’s individual record of hours worked would be used to determine whether 1,250 hours had been worked in the 12 months prior to the commencement of FMLA leave. As a rule of thumb, the following may be helpful for estimating whether this test for eligibility has been met:

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

How is the 12-month period calculated under FMLA?
University System of Georgia calculates FMLA by measuring backward from the date an employee uses FMLA on a 12-month rolling year. (A single 12-month period for Military Caregiver Leave begins on the 1st day the employee takes military leave and ends 12 months later.)

If an employee has already used 12 weeks of FMLA leave in the past year for their own serious health condition, are they also entitled to another 12 weeks to care for a seriously ill family member, since it's for a different reason?
No, an employee is not entitled to additional 12 weeks within a 12-month period regardless of the reason(s) for FMLA.  All FMLA-qualifying leave is cumulative and the federal regulations state that an employee may be off for up to a total of 12 work weeks in any 12-months because of any FMLA qualifying reason.   

Qualifying FMLA Reasons:

  • Birth of a child and to care for the newborn child
  • Placement of a child with the employee for adoption or foster care
  • Employee is needed to care for a family member (child, spouse, or parent) with a serious health condition
  • Employee's own serious health condition makes the employee unable to perform the functions of his or her job
  • Any qualifying exigency arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on active duty, or has been notified of an impending call or order to active duty status, in the Armed Forces in a foreign country.
  • Military Injured Family Member- An additional 14 weeks available to care for an injured military service member.  If the other family member is a covered military service member and the requirements for Military Caregiver leave are met.

Are both male and female employees entitled to time off for the birth, bonding the child, adoption of a child or foster care placement? How many sick and vacation time be utilized?  
Yes. Birth mothers may be entitled to time off for their own serious health condition (pregnancy – including prenatal care, medical incapacity related to pregnancy, and post-birth recovery), and may use accrued sick leave for such time off. Also reference Sick Leave Policy 2.13.

A husband may be entitled to time off to care for his pregnant wife (if there are periods of her pregnancy or post-birth recovery in which she is incapacitated and requires his care) and he may use accrued sick leave for such time off.   

Bonding with a newborn is defined as spending time with your healthy newborn after the post-partum/physician approved disabled state in which vacation time may be utilized concurrently with FMLA.  If vacation time is not available, approved unpaid time off is an option.   

Bonding with an adopted child or foster placed child, vacation time may be utilized concurrently with FMLA. If vacation time is not available, approved unpaid time off is an option. Georgia Tech requires that such "bonding" time off be taken as a single continuous period rather than as intermittent leave.

Can the employer count time on maternity leave or pregnancy disability as FMLA leave?
Yes. Pregnancy disability leave or maternity leave for the birth of a child would be considered qualifying FMLA leave for a serious health condition and may be counted in the 12 weeks of leave so long as the employer appropriately notifies the employee of the FMLA designation.

Can the employer count leave taken due to pregnancy complications against the 12 weeks of FMLA leave for the birth and care of a child?
Yes. If the employee (birth mother) has pregnancy complications and misses work due to such issues as mandated bed best, morning sickness, or other related pregnancy issues, time missed will be counted as part of the 12-week FMLA leave entitlement.

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

Can an employee take FMLA leave for visits to a physical therapist, if their doctor prescribes the therapy?
Yes. FMLA permits an employee to take leave to receive "continuing treatment by a health care provider," which can include recurring absences for therapy treatments such as those ordered by a doctor for physical therapy after a hospital stay or for treatment of severe arthritis.

Under what circumstances is leave designated as FMLA leave and counted against the employee's total entitlement?
It is the employer's responsibility to designate leave taken for an FMLA reason as FMLA leave. The designation must be based upon information furnished by the employee. Leave should not be designated as FMLA leave after the leave has been completed and the employee has returned to work, except if:

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

Can an employer count FMLA leave taken against a no-fault absentee policy?
No.

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Restrictions

Does the law guarantee paid time off for FMLA?
No. The FMLA only requires unpaid leave. However, the law allows an employee to elect – or the employer to require the employee – to use accrued paid leave, such as vacation or sick leave, for some or all of the FMLA leave period. When paid leave is substituted for unpaid FMLA leave, it may be counted against the 12-week FMLA leave entitlement if the employee is properly notified of the designation when the leave begins. Georgia Tech requires that employees use their accrued paid sick leave and/or vacation leave concurrently with FMLA leave before they go into an unpaid status. 

Exceptions:

  1. If your FMLA leave is a result of an on-the-job injury and is covered under Workers’ Compensation, you have the option of taking unpaid leave even if you have sick or vacation leave available.
  2. If an employee on FMLA leave has short-term disability (STD) insurance, the employee will go into an unpaid leave status once they begin receiving STD benefits, reserving any remaining accrued leave (sick/vacation) for use after the employee returns from leave.  

Please note that an employee must use their available accrued sick leave and/or vacation during the STD waiting period.  However, employees are not able to use both vacation/sick and receive disability benefits at the same time. 

Does Workers’ Compensation leave count against an employee’s FMLA leave entitlement?

Yes. FMLA leave and Workers’ Compensation leave may run at the same time, provided the reason for the absence is due to a qualifying serious illness or injury.   A serious illness or injury as defined by FMLA is a period of incapacity of more than three full consecutive calendar days and any subsequent treatment or period of incapacity relating to the same condition, that also involves (a) treatment two or more times by a health care provider or (b) treatment by a health care provider on at least one occasion which results in a regiment of continuing treatment under the supervision of the healthcare provider.

Can an employer require an employee to return to work before they exhaust their FMLA leave?
Subject to certain limitations, an employer may deny the continuation of FMLA leave due to a serious health condition if the employee fails to fulfill any obligations to provide supporting medical certification. The employer may not, however, require the employee to return to work early by offering the employee a light duty assignment.

Are there any restrictions on how the employee can spend their time while on leave?
It is presumed that employees on FMLA for their own serious health conditions are not working outside of the Institute while on FMLA leave. Otherwise, the employer may not restrict an employee’s activities. The protections of FMLA will not, however, cover situations where the reason for leave no longer exists, where the employee has not provided required notices or certifications, or where the employee has misrepresented the reason for leave.  

Can an employer make inquiries about the employee’s leave during the employee’s absence?

Yes, they may make inquiries of the employee. The employer may ask questions to confirm whether the leave needed or being taken qualifies for FMLA purposes, and may require periodic reports on the employee’s status and intent to return to work after leave. Also, if the employer wishes to obtain another opinion, the employee may be required to obtain additional medical certification at the employer’s expense, or rectification during a period of FMLA leave. The employer may also contact the employee’s health care provider, with the employee’s permission, 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.  To make such contact, the employer must use a health care provider, human resources professional, leave administrator, or management official. Under no circumstances, however, may the employee’s direct supervisor contact the health care provider.  The inquiry may not seek additional information regarding your health condition or that of a family member.

How often can an employer require an employee to re-certify their need for FMLA leave?
Typically, an employer may request recertification documentation no more often than every 30 days (except as indicated below) and only in connection with an absence by the employee, unless the medical certification indicates that the minimum duration of the condition is more than 30 days, in which case the employer must wait until that minimum duration expires before requesting a recertification. For example, if the medical certification states that an employee will be unable to work, whether continuously or on an intermittent basis, for three months, the employer must wait three months before requesting a recertification.

An employer may request recertification in less than 30 days if:

  1. The employee requests an extension of leave;
  2. Circumstances described by the previous certification have changed significantly (e.g., the duration or frequency of the absence, the nature or severity of the illness, complications). For example, if a medical certification stated that an employee would need leave for one to two days when the employee suffered a migraine headache and the employee's absences for his or her last two migraines lasted four days each, then the increased duration of absence might constitute a significant change in circumstances allowing the employer to request a recertification in less than 30 days. Likewise, if an employee had a pattern of using unscheduled FMLA leave for migraines in conjunction with his or her scheduled days off or weekends, then the timing of the absences also might constitute a significant change in circumstances sufficient for an employer to request a recertification more frequently than every 30 days;
  3. The employer receives information that casts doubt upon the employee's stated reason for the absence or the continuing validity of the certification. For example, if an employee is on FMLA leave for four weeks due to the employee's knee surgery, including recuperation, and the employee is seen playing in a softball game during the employee's third week of FMLA leave, such information might be sufficient to cast doubt upon the continuing validity of the certification allowing the employer to request a recertification in less than 30 days.

In all cases, the employer may request a recertification of a medical condition every six months in connection with an absence by the employee.

Can an employer refuse to grant an employee FMLA leave?
An employee may not be denied FMLA leave provided:

  • The employee is an "eligible" employee;
  • The purpose of the leave meets FMLA’s definition of a qualifying reason;
  • The employee adheres to the FMLA notice and certification requirements; and
  • The employee has not exhausted their FMLA leave entitlement for the year

If an employer fails to tell an employee that the leave is FMLA leave, can the employer count the time the employee has already been off against the 12 weeks of FMLA leave?
Yes. The employer may retroactively designate leave as FMLA leave with appropriate notice to the employee provided that the employer's failure to timely designate leave does not cause harm or injury to the employee by lessening future leave time. 

For example, if an employer was put on notice that an employee needed FMLA leave and failed to designate the leave properly, but the employee's own serious health condition prevented him or her from returning to work during that time period regardless of the designation, the employee is not considered to have suffered harm due to the failure to properly designate the leave as FMLA. However, if an employee took leave to provide care for a son or daughter with a serious health condition believing it would not count toward his or her FMLA entitlement, and the employee planned to later use that FMLA leave to provide care for a spouse who would need assistance when recovering from surgery planned for a later date, the employee may be able to show that harm has occurred as a result of the employer's failure to designate properly. The employee might establish this by showing that he or she would have arranged for an alternative caregiver for the seriously-ill son or daughter if the leave had been designated timely.  In all cases where leave would qualify for FMLA protections, an employer and an employee can mutually agree that leave be retroactively designated as FMLA leave.

Does the employee have to provide the employer with medical records for leave due to a serious health condition?

Medical records are not required to support a requested leave due to a serious health condition, however, medical certification from the healthcare provider confirming that a serious health condition exists is.  A medical certification is a single document that confirms the serious health condition in question.  

Is an employee still eligible to receive a perfect attendance award if he/she uses FMLA leave?

Employers may deny a “perfect attendance” award to an employee who does not have perfect attendance because of taking FMLA leave as long as it treats employees taking non-FMLA leave in an identical way. 

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Employee Termination

Can an employee be terminated while out on FMLA leave?
An employer may not take any adverse action against an employee for taking FMLA leave; however, a personnel action/decision that would have happened if the employee had continued to work may happen while the employee is on FMLA leave.

For example, if an employer decides that a reduction-in-force is necessary and the employee taking FMLA leave legitimately falls within the group of employees to be laid off, the employee may be laid off even while taking FMLA leave. If the employee is laid off, the employer's obligations under FMLA stop as of the effective date of the layoff.  Also, if it is discovered while an employee is out on FMLA leave that the employee is guilty of a serious policy violation, the employer may terminate the employee while they are out on FMLA leave.

Human Resources must be consulted before any adverse action is taken against an employee on FMLA leave.

Can an employee lose their job because they took FMLA leave?
Generally, no. It is unlawful for any employer to interfere with or restrain or deny the exercise of any right provided under the Family & Medical Leave Act.  Employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions; nor can FMLA leave be counted under "no fault" attendance policies. Under limited circumstances, an employer may deny reinstatement to work - but not the use of FMLA leave - to certain highly paid, salaried ("key") employees.  Additionally, employers not required to reinstate employees who would have been laid off or otherwise had their employment terminated had they continued to work during the FMLA leave period as, for example, due to a general layoff.

Are there other circumstances in which an employer can deny an employee on FMLA leave reinstatement to their job?
In addition to denying reinstatement in certain circumstances to "key" employees, employers are not required to continue FMLA benefits or reinstate employees who would have been laid off or otherwise had their employment terminated had they continued to work during the FMLA leave period as, for example, due to a general layoff.  Employees who give unequivocal notice that they do not intend to return to work lose their entitlement to FMLA leave. Employees who are unable to return to work and have exhausted their 12 weeks of FMLA leave in the designated "12-month period" no longer have FMLA protections of leave or job restoration.

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

Can an employer fire an employee for complaining about a violation of FMLA?
No. Nor can the employer take any other adverse employment action on this basis. It is unlawful for any employer to discharge or otherwise discriminate against an employee for opposing a practice made unlawful under FMLA.

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