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III. Federal Law - Family Medical Leave Act (FMLA) ...continued...
Who Can Provide a Valid Medical Certification?
Under FMLA, those who may provide certification of a “serious health condition” include:
• doctors of medicine or osteopathy (M.D.’s and D.O.’s) authorized to practice medicine or surgery by the state in which the doctor practices;
• podiatrists, dentists, clinical psychologists, optometrists, and chiropractors (with some limitations) authorized to practice in the state and performing within the scope of their practice;
• nurse practitioners, nurse-midwives, and clinical social workers authorized to practice under state law and performing within the scope of their regular practice;
• Christian Science practitioners listed with the First Church of Christ, Scientist in Boston, Massachusetts;
• any health care provider recognized by the employer or the employer’s group health plan’s benefits manager; and,
• A health care provider of a type listed above who practices in a country other than the United States and who is authorized to practice under the laws of that country.
Under FMLA, those who may provide certification of a “serious health condition” include:
• doctors of medicine or osteopathy (M.D.’s and D.O.’s) authorized to practice medicine or surgery by the state in which the doctor practices;
• podiatrists, dentists, clinical psychologists, optometrists, and chiropractors (with some limitations) authorized to practice in the state and performing within the scope of their practice;
• nurse practitioners, nurse-midwives, and clinical social workers authorized to practice under state law and performing within the scope of their regular practice;
• Christian Science practitioners listed with the First Church of Christ, Scientist in Boston, Massachusetts;
• any health care provider recognized by the employer or the employer’s group health plan’s benefits manager; and,
• A health care provider of a type listed above who practices in a country other than the United States and who is authorized to practice under the laws of that country.
Your obstetrician and your nurse-midwife are definitely approved, assuming they are appropriately licensed. Your chiropractor is approved too – but only for spinal-related conditions, not for pregnancy-related conditions.
What is Intermittent Leave and Is It Permitted Under FMLA?
You don’t have to take all 12 weeks of FMLA leave at once. If you need to or want to, you can split them up. You may need to take some time off before the birth and then some more after the birth. Or you and your spouse may decide to take alternating weeks at home with your baby after his birth.
The good news for you is that employees may take FMLA leave in several smaller blocks of time adding up to the full 12 weeks (as opposed to a single 12 week leave) on an intermittent or reduced leave basis when medically necessary.
Under FMLA, intermittent leave taken for the birth and care of a child is subject to your employer’s approval except for pregnancy-related leave that would be leave for a serious health condition. Taking this intermittent leave for the placement, adoption, or foster care of a child is also subject to your employer’s approval.
Only the amount of leave actually taken while on intermittent/reduced schedule leave may be charged as FMLA leave. Employees may not be required to take more FMLA leave than necessary to address the circumstances that cause the need for leave.
Employers may account for FMLA leave in the shortest period of time that their payroll systems use – but it must be hourly or less. For example, if you need to take regular half days for prenatal monitoring or for NICU visits, your employer cannot force you to take a full day or a full week and should reflect your absences in terms of hours in its payroll system.
How Does FMLA Work with Your Company Vacation or PTO Policies?
As we have already pointed out, FMLA only requires unpaid leave. Don’t despair though. The law allows an employee to choose to use accrued paid leave, such as vacation or sick leave, for some or all of her FMLA leave period. The employer can even require the employee to do so.
When paid leave is substituted for unpaid FMLA leave, the employer can count the paid leave against the 12-week FMLA leave entitlement if the employee is properly notified of the designation when the leave begins.
In other words, you may not be able to take your four weeks of paid vacation time PLUS your two weeks of paid sick time PLUS 12 weeks of unpaid FMLA leave. Make sure to check with your HR department – don’t make any assumptions!
The employer cannot limit or prohibit the substitution of accrued paid vacation or personal leave for unpaid FMLA leave but the employer can require that you meet the employer’s usual requirements for the use of such paid leave.
Basically, if you are going to take sick leave as part of your maternity or pregnancy leave, you will have to comply with your company’s requirements for taking sick leave which will likely involve the input of your physician or other health care provider.
What is Intermittent Leave and Is It Permitted Under FMLA?
You don’t have to take all 12 weeks of FMLA leave at once. If you need to or want to, you can split them up. You may need to take some time off before the birth and then some more after the birth. Or you and your spouse may decide to take alternating weeks at home with your baby after his birth.
The good news for you is that employees may take FMLA leave in several smaller blocks of time adding up to the full 12 weeks (as opposed to a single 12 week leave) on an intermittent or reduced leave basis when medically necessary.
Under FMLA, intermittent leave taken for the birth and care of a child is subject to your employer’s approval except for pregnancy-related leave that would be leave for a serious health condition. Taking this intermittent leave for the placement, adoption, or foster care of a child is also subject to your employer’s approval.
Only the amount of leave actually taken while on intermittent/reduced schedule leave may be charged as FMLA leave. Employees may not be required to take more FMLA leave than necessary to address the circumstances that cause the need for leave.
Employers may account for FMLA leave in the shortest period of time that their payroll systems use – but it must be hourly or less. For example, if you need to take regular half days for prenatal monitoring or for NICU visits, your employer cannot force you to take a full day or a full week and should reflect your absences in terms of hours in its payroll system.
How Does FMLA Work with Your Company Vacation or PTO Policies?
As we have already pointed out, FMLA only requires unpaid leave. Don’t despair though. The law allows an employee to choose to use accrued paid leave, such as vacation or sick leave, for some or all of her FMLA leave period. The employer can even require the employee to do so.
When paid leave is substituted for unpaid FMLA leave, the employer can count the paid leave against the 12-week FMLA leave entitlement if the employee is properly notified of the designation when the leave begins.
In other words, you may not be able to take your four weeks of paid vacation time PLUS your two weeks of paid sick time PLUS 12 weeks of unpaid FMLA leave. Make sure to check with your HR department – don’t make any assumptions!
The employer cannot limit or prohibit the substitution of accrued paid vacation or personal leave for unpaid FMLA leave but the employer can require that you meet the employer’s usual requirements for the use of such paid leave.
Basically, if you are going to take sick leave as part of your maternity or pregnancy leave, you will have to comply with your company’s requirements for taking sick leave which will likely involve the input of your physician or other health care provider.
Are You Guaranteed to Get Your Job Back After You Return from Leave?
Again, the answer is a definitive “maybe.” Upon returning from FMLA-qualifying leave, an employee must be restored to her original job or to an “equivalent” job. An equivalent job means a job which is virtually identical to the original job in terms of pay, benefits, and other employment terms and conditions.
Under some very limited circumstances, an employer can refuse to reinstate certain high-income, salaried employees. These employees are referred to as “key” employees under FMLA. While the company may be able to refuse them their original jobs, it cannot refuse to allow them to take FMLA leave.
Additionally, 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.
For example, if a substantial, company-wide layoff is announced during an employee’s FMLA leave, the company does not have to continue to provide benefits and leave under FMLA and does not have to guarantee her a job after her leave is concluded.
Employees who are physically and medically unable to return to work and have exhausted their 12 weeks of FMLA leave in the designated “12 month period” are not entitled to their jobs back.
What is the “Key” Employee Exception?
As noted above, an employer can refuse to reinstate certain highly-paid, salaried “key” employees after FMLA leave. Your employer is not required to keep your job open while you are on leave if you are in the highest-paid 10 percent of wage earners at your company and your employer can show that your absence would cause substantial economic harm to the company.
In order to use the key employee exception, the employer must notify the employee in writing of her status as a “key” employee and the reasons for denying job restoration and must provide the employee a reasonable opportunity to return to work after receipt of the notice.
Will You Still Have the Same Health Insurance Benefits while on FMLA leave?
Yes. A “covered employer” must maintain group health insurance coverage, including family coverage, for an employee on FMLA leave on the same terms as if that employee continued to work her regular job (i.e. insurance at the same level and same conditions of coverage).
While you may be eligible for FMLA leave, it is possible that you may not have been eligible for health insurance benefits, pursuant to corporate policy, or that you may not have elected to receive those benefits prior to your leave.
FMLA only requires an employer to provide health benefits if those benefits are provided at the time you begin your leave. You cannot ask for benefits to begin or increase while you are on leave. FMLA only guarantees maintenance of the benefits you already had prior to your leave.
You may need to make arrangements to pay your share of health insurance premiums while you are on unpaid leave.
If you normally pay for a portion of your health insurance premium out of your paycheck, you will need to talk with your company’s HR department to determine how these payments will be made while you are on leave and not receiving a paycheck (assuming you are on unpaid FMLA leave as opposed to paid leave per company policy).
Your employer’s obligation to continue to provide health benefits stops if your premium payment is more than 30 days late and your employer has given you written notice at least 15 days in advance advising that coverage will cease if payment is not received.
An employer’s obligation to maintain group health insurance coverage for an employee on leave also ends just as soon as that employee informs her employer that she does not intend to return to work at the end of the leave period.
The obligation will automatically end if the employee fails to return to work when the 12 week FMLA leave period is exhausted.
Again, the answer is a definitive “maybe.” Upon returning from FMLA-qualifying leave, an employee must be restored to her original job or to an “equivalent” job. An equivalent job means a job which is virtually identical to the original job in terms of pay, benefits, and other employment terms and conditions.
Under some very limited circumstances, an employer can refuse to reinstate certain high-income, salaried employees. These employees are referred to as “key” employees under FMLA. While the company may be able to refuse them their original jobs, it cannot refuse to allow them to take FMLA leave.
Additionally, 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.
For example, if a substantial, company-wide layoff is announced during an employee’s FMLA leave, the company does not have to continue to provide benefits and leave under FMLA and does not have to guarantee her a job after her leave is concluded.
Employees who are physically and medically unable to return to work and have exhausted their 12 weeks of FMLA leave in the designated “12 month period” are not entitled to their jobs back.
What is the “Key” Employee Exception?
As noted above, an employer can refuse to reinstate certain highly-paid, salaried “key” employees after FMLA leave. Your employer is not required to keep your job open while you are on leave if you are in the highest-paid 10 percent of wage earners at your company and your employer can show that your absence would cause substantial economic harm to the company.
In order to use the key employee exception, the employer must notify the employee in writing of her status as a “key” employee and the reasons for denying job restoration and must provide the employee a reasonable opportunity to return to work after receipt of the notice.
Will You Still Have the Same Health Insurance Benefits while on FMLA leave?
Yes. A “covered employer” must maintain group health insurance coverage, including family coverage, for an employee on FMLA leave on the same terms as if that employee continued to work her regular job (i.e. insurance at the same level and same conditions of coverage).
While you may be eligible for FMLA leave, it is possible that you may not have been eligible for health insurance benefits, pursuant to corporate policy, or that you may not have elected to receive those benefits prior to your leave.
FMLA only requires an employer to provide health benefits if those benefits are provided at the time you begin your leave. You cannot ask for benefits to begin or increase while you are on leave. FMLA only guarantees maintenance of the benefits you already had prior to your leave.
You may need to make arrangements to pay your share of health insurance premiums while you are on unpaid leave.
If you normally pay for a portion of your health insurance premium out of your paycheck, you will need to talk with your company’s HR department to determine how these payments will be made while you are on leave and not receiving a paycheck (assuming you are on unpaid FMLA leave as opposed to paid leave per company policy).
Your employer’s obligation to continue to provide health benefits stops if your premium payment is more than 30 days late and your employer has given you written notice at least 15 days in advance advising that coverage will cease if payment is not received.
An employer’s obligation to maintain group health insurance coverage for an employee on leave also ends just as soon as that employee informs her employer that she does not intend to return to work at the end of the leave period.
The obligation will automatically end if the employee fails to return to work when the 12 week FMLA leave period is exhausted.
In some circumstances, the employer can even seek repayment from you for premiums it paid to maintain health insurance coverage for that employee if she decides not to return to work from FMLA leave.
Proceed to - Family Medical Leave Act (page 3 of 3)
