• For the birth and care of the newborn child of the employee

• For placement with the employee of a son or daughter for adoption or foster care

• To care for an immediate family member (spouse, child, or parent) with a serious health condition

• To take medical leave when the employee is unable to work because of a serious health condition.

Most employers are required to implement the FMLA (with the notable exception of employers who employ fewer than 50 employees).  Employees who request FMLA may take leave in increments of 1 hour.

If an employee is injured on the job and the injury is considered a “serious health condition,” the employee’s leave time for worker’s comp should be treated under the FMLA.  The definition of a serious health condition in the FMLA is very broad and does not distinguish between work and non-work related injuries.  This means that any injury that occurs while working and requires leave time to be taken for inpatient care or continuing treatment will most likely also be covered by the FMLA, in addition to worker’s comp.

Because of this duality, whenever an employee is injured and needs leave time for recover, the employer should determine whether this employee is also eligible for leave under the FMLA.  If so, notification in writing should be made immediately, so this leave time can be counted against the 12 week FMLA regulation also.  This notification should be very specific and give the details of the employees obligations while on FMLA, and also detail the consequences if these obligations are not met.  The Department of Labor Form WH-381 is commonly used for this requirement.

If the leave time for worker’s comp and FMLA are not run at the same time, the employee may have the FMLA 12 week leave entitlement to take after his/her worker’s comp leave expires.

Health insurance is a very important consideration for employees who are on worker’s compensation leave.  Most state worker’s comp laws don’t require employers to pay for health insurance during a worker’s comp leave.  The same laws do cover the employee’s medical expenses related to the injury, but don’t mandate health insurance plan coverage.  

However, the FMLA does require the continuation of benefits during a FMLA leave.  If the employee qualifies for leave under the FMLA and the employer normally pays for health insurance, then the employer must continue to pay for insurance during the worker’s comp leave.

PaperLess Office System’s timesheet system simplifies the compliance aspects of the Family Medical Leave Act.   By using our system, the employees and the employer get a straightforward solution to handling the complex details of tracking FMLA.  Here is a summary of how our time and attendance solution accomplishes this:

By using the PaperLess Office System solution, you will dramatically lower the cost of tracking and complying with the Family Medical Leave Act.

For the purposes of the Family Medical Leave Act, the employer may choose any of the following four methods for defining a “year”. 

1. Any fixed 12-month "leave year" such as a fiscal year, a year required by State law, or a year starting on the employee's "anniversary" date

2. The calendar year

3. The 12-month period measured forward from the date any employee's first FMLA leave begins

4. A "rolling" 12-month period measured backward from the date an employee uses FMLA leave

The employer must choose one method and make that method known to employees in advance of an employee taking FMLA leave.  Otherwise, the employer is required to offer employees leave under FMLA under the “year’ choice that is most beneficial to the employee.

To be eligible for Family Medical Leave Act time off, the employee must:

• Have worked for the employer for a total of 12 months, and
• Have worked at least 1,250 hours over the previous 12 months, and
• Work at a location in the United States or in any territory or possession of the United States where at least 50 employees are employed by the employer within 75 miles.

In addition, employers may designate certain highly compensated, “key individuals” who are not eligible for FMLA. The rules on this are strict, so pay attention to all the required notices.

Eligible employees seeking to use FMLA leave may be required to provide:

• 30-day advance notice of the need to take FMLA leave when the need is foreseeable;
• notice "as soon as practicable" when the need to take FMLA leave is not foreseeable ("as soon as practicable" generally means at least verbal notice to the employer within one or two business days of learning of the need to take FMLA leave);
• sufficient information for the employer to understand that the employee needs leave for FMLA-qualifying reasons (the employee need not mention FMLA when requesting leave to meet this requirement, but may only explain why the leave is needed); and,
• where the employer was not made aware that an employee was absent for FMLA reasons and the employee wants the leave counted as FMLA leave, timely notice (generally within two business days of returning to work) that leave was taken for an FMLA-qualifying reason.

Covered employers must take the following steps to provide information to employees about FMLA:

• post a notice approved by the Secretary of Labor (WH Publication 1420) explaining rights and responsibilities under FMLA;
• include information about employee rights and obligations under FMLA in employee handbooks or other written material, including Collective Bargaining Agreements (CBAs); or
• if handbooks or other written material do not exist, provide general written guidance about employee rights and obligations under FMLA whenever an employee requests leave (a copy of Fact Sheet No. 28 will fulfill this requirement); and
• provide a written notice designating the leave as FMLA leave and detailing specific expectations and obligations of an employee who is exercising his/her FMLA entitlements. The employer may use the "Employer Response to Employee Request for Family or Medical Leave" (optional form WH-381) to meet this requirement. This employer notice should be provided to the employee within one or two business days after receiving the employee's notice of need for leave and include the following:
• that the leave will be counted against the employee's annual FMLA leave entitlement;
• any requirements for the employee to furnish medical certification and the consequences of failing to do so;
• the employee's right to elect to use accrued paid leave for unpaid FMLA leave and whether the employer will require the use of paid leave, and the conditions related to using paid leave;
• any requirement for the employee to make co-premium payments for maintaining group health insurance and the arrangement for making such payments;
• any requirement to present a fitness-for-duty certification before being restored to his/her job;
• rights to job restoration upon return from leave;
• employee's potential liability for reimbursement of health insurance premiums paid by the employer during the leave if the employee fails to return to work after taking FMLA leave; and * whether the employee qualifies as a "key" employee and the circumstances under which the employee may not be restored to his or her job following leave.

• Official information on the Family Medical Leave Act can be found at the Department of Labor.  We recommend you refer to the following bulletins and information sources for more information:
• For an overview of all information available, see the Family Medical Leave Act Home Page at the US Department of Labor. 
• The Department of Labor also provides a FMLA Fact Sheet that provides a summary of the Family Medical Leave Act. 
• Employers should refer to the FMLA Compliance Guide for information on rules that they must comply with. 
• Those comfortable with reading long, legal documents will appreciate the text of the Family Medical Leave Act that was passed by Congress as well as the Code of the Federal Regulations that implements the Family Medical Leave Act. 
• Federal vs. State Family and Medical Leave Laws

1. When will both the FMLA and ADA affect a leave?
2. Is a "serious health condition" the same thing as a "disability"?
3. Is a disabled employee always eligible for FMLA leave?
4. Can you require medical certification to determine coverage under the ADA and FMLA?
5. How much total leave do you have to give?
6. Do you have to continue to pay for health insurance during a disability leave?
7. Are the reinstatement requirements different for the ADA and FMLA?
8. What precautions should you take to monitor leaves?

Most employers assume that if they give an employee 12 weeks of leave to comply with the FMLA, their obligation to this employee is finished. However, if the employee also is disabled, the employer’s duty under the ADA may be just beginning.

Ask a group of HR professionals to list the toughest aspects of implementing the Family and Medical Leave Act (FMLA), and most will agree that coordinating the law with the Americans with Disabilities Act (ADA) is one of their top challenges. The confusion created by the overlap of the FMLA and the ADA is yet another example of good intentions "gone awry." Congress passed these two laws without considering how they would interact, and the regulatory agencies contributed further to the uncertainty by providing only minimal guidance. As a result, most employers must devise their own rules for applying the sometimes conflicting laws to an employee’s leave of absence. To help fill in the gaps, the Editors have analyzed the FMLA and ADA statutes, regulations, and guidances to answer the most frequently asked questions about these laws. (Many complicated issues also arise concerning the interaction of workers’ compensation and FMLA leave.

The ADA applies to employers with 15 or more employees, and the FMLA applies to private employers with 50 or more employees and to all public agencies and schools. Therefore, if it is covered by the FMLA, the employer generally also will be covered by the ADA and must comply with both laws.

These laws have different purposes, but both can affect an employee’s need for leave. The FMLA requires covered employers to provide eligible employees with up to 12 weeks of job-protected leave every year for various family and medical reasons. In particular, an eligible employee can take a leave if he is unable to work because of a serious health condition. On the other hand, the ADA prohibits discrimination against qualified disabled individuals and requires employers to provide accommodations that allow these individuals to perform the essential functions of their jobs. According to the EEOC and several courts, a leave of absence may be a reasonable accommodation if taking the leave would allow the disabled employee to return to work and perform the essential functions of the job.

As a practical matter, these laws will overlap when an employee takes a leave of absence for a FMLA serious health condition that also qualifies as a disability under the ADA. For example, if an employee who has been on FMLA leave for 12 weeks cannot return to work because of a continuing serious health condition, the condition also may be a disability. Therefore, the employer may have to accommodate him by granting additional leave beyond the 12 weeks of FMLA entitlement. Alternatively, if an employee requests a 6-week leave as an accommodation to seek treatment for a disability, that time off also could be counted as FMLA leave for a serious health condition if the employee meets the FMLA eligibility requirements.

No. The FMLA and its implementing regulations define "serious health condition" broadly to include any illness, injury, impairment, or physical or mental condition that involves: (1) inpatient care (i.e., an overnight stay), including any period of incapacity or any subsequent treatment in connection with the inpatient care; or (2) "continuing treatment" by a health care provider. Thus, the FMLA may cover temporary conditions such as a broken leg, as well as a chronic condition like diabetes.

The ADA, in contrast, generally is not intended to cover temporary medical conditions. Accordingly, a person is disabled under the ADA only if (1) he has a physical or mental impairment; and (2) that impairment substantially limits a major life activity, such as walking, seeing, hearing, speaking, and breathing. Generally, most disabilities will qualify as serious health conditions under the FMLA. For example, cancer can be both a serious health condition under the FMLA and a disability under the ADA. However, not all serious health conditions will also be disabilities.

Yes. Both the ADA and the FMLA allow employers to make limited medical inquiries. Under the ADA, you may make medical inquiries or require medical examinations only if the inquiry or examination is job-related and consistent with business necessity. Thus, if the employee requests leave as an accommodation, you may ask for medical documentation of the existence of the disability and the need for the leave.

The FMLA also limits the medical information an employer may require. It allows you to require medical certification of the serious health condition and the need for leave. However, the certification may relate only to the serious health condition that is causing the need for leave. Therefore, you may not require the employee to answer questions about conditions unrelated to the stated reason for the leave.

Thus, if you comply with the FMLA medical certification requirements, you also generally will comply with the ADA’s limits on medical information.

If the disabled employee’s leave qualifies as an FMLA leave, the employer must comply with the FMLA’s requirements. Under the FMLA, employers must provide the same health benefits during an FMLA leave that it would have provided if the employee worked throughout the leave. Thus, if the employer pays for health insurance normally, it must continue doing so during the FMLA leave.

If the employee is not covered by the FMLA, the employer does not have to continue to pay for the health insurance. The ADA only requires the employer to give a disabled employee on leave the same benefits it gives any nondisabled employee on leave.