FMLA Leave: Expert Answers Employer’s Questions

Administering FMLA leave is not always a simple task. Sometimes even the simplest questions become complex, such as how long is a week of FMLA leave when it’s taken in hours instead of in a full block of time? Do FMLA medical certifications expire? What certification can be requested when an employee is taking FMLA leave to care for a family member?

These questions were addressed by Stacie Caraway in a recent BLR webinar. She lent her expertise to help our webinar participants stay in FMLA compliance. Check out her answers below.

Q. How is a week defined under the FMLA? Should you count in weeks, fractions thereof, days, or hours? If you use hours, is it capped at 480 hours?

A.For purposes of the FMLA, the week is defined as whatever the individual employee works. It is not just 12 weeks multiplied by 40 hours. First talk to the employee’s supervisor and find out what their typical work week has been, including all hours worked.

If the employee routinely works a 50-hour week, for example, then you would multiply that by 12 to get the hours available for intermittent leave. If the hours worked varied every week, then you should calculate the average number of hours worked per week in the previous year and use that as the basis to multiply by 12. This is true whether the average hours worked each week is more or less than 40.

Q. When does FMLA medical certification paperwork expire?

A.We can look at this in three ways:

1. If the duration of the condition noted on the medical certification is x weeks or months, then the form expires when the doctor has indicated the condition is over. That’s the first thing that can trigger expiry, assuming that we’re talking about a condition that could continue beyond a specified point, such as migraines or other chronic conditions.
2. The employer can seek a recertification for a chronic condition every 6 months if there is no other end date noted. This would be from the same medical provider.
3. Separately, to actually get a brand new certification and brand new FMLA qualification, that can be done every 12 months. When getting a new certification, the employer can now ensure that the employee still meets the FMLA hours requirements and can, if necessary, ask for a second or third medical opinion.

Q. What can be requested if the FMLA leave is needed for a sick family member? In what time frame does the employee have to present certification of the need to be with a sick parent?

A.There’s no deadline for requesting leave in relation to the timing of the family member’s diagnosis. Separately, for a general request for FMLA leave, the leave request needs to be reasonable. The goal is to give 30 days’ advance notice for planned leave. For unplanned leave, the notice should be as soon as possible. Naturally, the employer should also do their part by posting the FMLA poster and having an FMLA policy so that employees understand the rules as well as their rights.

Q. Can we require employees to take their paid leave concurrently with their California Family Rights Act (CFRA) leave, even if they’re already taking CFRA and FMLA concurrently?

A.I don’t think there’s a prohibition on that. However, every state varies. This is a California-specific question and you’ll want to look at the CFRA details. In general, if the state leave law prohibits the employer from requiring employees to use their paid leave concurrently with their state-protected FMLA-equivalent leave, then the employer would not be able to do so, even though FMLA permits it. The employer could still run the FMLA leave concurrently with the state-level leave, as long as that is not also prohibited.

In general, when a state law is more favorable to the employee than the federal law, the employer has to go with the more favorable law. If you have a situation where the employee is taking FMLA only, and not the state leave (perhaps the state leave has expired, but FMLA has not), then federal law permits you to require the employee to take paid leave concurrently.

For more information on administering FMLA leave, order the webinar recording of “FMLA Certifications: Tips and Tactics to Successfully Manage Family and Medical Leave.” To register for a future webinar, visit http://store.blr.com/events/webinars.

Attorney Stacie L. Caraway is a member in the law firm of Miller & Martin PLLC and concentrates her practice in the areas of labor and employment. She advises employers concerning general employment and labor law issues; develops, reviews, and updates human resource policies and supporting agreements; and represents employers in local, state and federal legal proceedings including EEOC and state human rights commission investigations, mediations and lawsuits throughout the United States.