Employment Law -- Employee
FMLA: Basic Concepts
Do I have to give my employer documentation of my eligibility to take leave under the revised FMLA?
When your employer decides whether you are eligible for FMLA leave, your employer must also give you information about the requirements to take FMLA leave, such as whether you will be required to provide documentation of the qualifying reason(s) for taking leave under the FMLA, and your other rights and responsibilities under the revised FMLA.
When I want to return to work after taking FMLA leave, can my employer require that I provide a doctor’s statement that I am able to return to work?
Yes. Your employer can require that you get documentation from your doctor that you are able to resume your regular duties at work, if the employer has a uniform policy that requires employees to provide such documentation after taking FMLA leave. If you don’t provide the documentation, then your employer may not let you return to work.
Can my employer contact my doctor about my medical condition if I take leave under the revised Family and Medical Leave Act (FMLA)?
Any contact between your employer and your doctor is subject to the Health Insurance Portability and Accountability Act (“HIPAA”) privacy rules. Your doctor can only disclose that information to your employer about your medical condition that you have specifically agreed to in writing; however, you don’t have to sign a release allowing your doctor to give your employer any information at all. Plus, your direct supervisor cannot contact your doctor; only human resources personnel or management can contact your doctor.
How often can my employer ask for medical certification for my leave under the revised FMLA?
Your employer can ask for medical certification after 30 days, unless the leave period is expected to last more than 30 days, in which case the employer must wait until the leave period is up to ask for certification. An employer can ask for recertification at least every 6 months, and can ask for recertification more often if you request an extension of your leave, or if there are changed circumstances during the leave period.
What is continuing treatment under the revised FMLA?
Continuing treatment generally involves incapacity due to a medical condition for at least 3 days while being treated by a healthcare provider, or certain other types of incapacity, such as incapacity due to pregnancy and/or childbirth, incapacity due to multiple treatments for a health condition, or incapacity to undergo surgery. There are also timeframes within which treatment must occur in order for it to qualify as continuing treatment.
How much information do I have to give my employer about my reason for taking leave under the revised FMLA?
You have to give your employer sufficient information about your need for FMLA leave, as well as the timing and length of your leave. Sufficient information might include the fact that you are pregnant or undergoing surgery, or that you must care for a family member who is unable to care for himself. Again, the definition of sufficient information depends on the facts and circumstances of each case.
What sort of notice are employers required to give employees about the revised FMLA?
Employers must post general information about the FMLA in the workplace where employees will see it, as well as information about how to file a FMLA claim. Additionally, employers must place FMLA information in any employee handbooks or personnel manuals, and give the information to new employees when they are hired. Employers face up to a $110.00 fine if they fail to comply with these requirements.
If I need to take leave under the revised Family and Medical Leave Act (“FMLA”) that is not foreseeable, do I still have to follow my employer’s call-in rules for absences?
Yes. Unless extraordinary circumstances prevent you from doing so, you must call in or otherwise follow your employer’s usual procedures for reporting that you will be absent from work. If you do not follow your employer’s rules, your employer may deny your request for leave under the FMLA, and you might be subject to discipline by your employer for failing to follow the rules.
What is a chronic serious health condition under the revised Family and Medical Leave Act (“FMLA”)?
In order for an illness or health condition to count as a chronic serious health condition under the FMLA, the condition must require periodic treatment by a healthcare provider (at least twice per year), it must continue over an extended period of time, and it may cause episodic rather than continuing periods of incapacity.
Yes. The first healthcare provider visit must occur within 7 days of the beginning of the leave period, and you must have at least two visits with your healthcare provider for continuing or periodic treatment per year.
Under the revised FMLA, there is no distinction between paid vacation, personal, or sick leave time that you may be eligible for when you need to take FMLA leave. If you are entitled to take paid leave under your employer’s rules, then you can take paid leave concurrently with your FMLA leave time.
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