Contents

Overview of the FMLA

Am I eligible for family leave?

What kinds of family or medical issues qualify for FMLA leave?

Is FMLA eave paid? 

What are the FMLA benefits?

Do I return to the same job from Family or Medical Leave?

What notice must I give before taking FMLA leave?

What information must my employer to give me about FMLA rights?

What is "intermittent" FMLA leave?

What is a serious health condition?

Do I have to get a doctor's opinion for FMLA leave?

What must the doctor certify?

Can my employer require a second or third opinion?

How often must I update my FMLA medical certification?

Will I have to take a fitness for duty exam when I return?

What are my rights and remedies if my employer violates my FMLA rights?

Overview of FMLA

• signed into law in 1993 by President Clinton;
  
• enacted so that employees of larger employers could get time off work to attend to serious family illnesses, child birth and adoption without  losing their job;
  
• before the FMLA, employers did not have to provide employees with any leave for illness, although Ohio required Ohio employers to provide leave for childbirth.  The significance of the FMLA is that a covered employer must return you to your same job when you return from an FMLA covered leave.

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Am I eligible for family or medical leave?

To be eligible:

• You must work for an employer with 50 or more employees in the current or preceding year;
  
• You must have been employed at least 12 months and who worked in excess of 1,250 hours in the previous 12 month period;
  
• You have not taken mor than 12 weeks of FMLA designated leave during any 12 month period.

What kinds of absences qualify for FMLA leave?

1. The birth of your child, whether you are the mother or father;
2. The placement of a child with you for adoption or foster care.
3. To care for a spouse, child, or parent who has a serious health condition; or
4. To care for your own serious health condition.

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Is leave paid?

No. You can, however, use available vacation or sick time.  Your employer can also require you to use vacation and can, at its option, make it a paid or partially paid leave.

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What are the benefits?

• Your employer must continue your  coverage under its health insurance plan;
  
• You must pay your share of the premium (if any) during the leave.

• If you do not make timely payments of your share of the health care premiums, your employer does not have to maintain health insurance after you are more than 30 days late with your premium payment.

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Do I return to the same job?

• Yes and no;

• Key employees (employees in the top 10 of the employer's earners) do not have the right to return to their old jobs if "substantial and grievous injury results to employer to do so." If you are a key employee, your employer must notify you before you take leave that it will not restore you to your former position.

• Other than "key employees," an employer must restore all other employees to the same or equivalent position, with the same pay and benefits.

• After a leave, the employer must restore you to the position you  held when the leave began, or to an equivalent position, with equivalent employment benefits, pay, and other terms and conditions of employment. The term 'equivalent' does not mean merely 'comparable' or 'similar.' Instead, it requires a correspondence to the duties and all other terms, conditions, and privileges of the employee's previous position.

• However, upon your return you have no greater right to reinstatement or to other benefits than if you had been continuously employed during the leave. For example, if you would have been laid off during your leave, you get to return to work only when your employer recalls you from the layoff.  

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What notice must I give before taking leave?

• You must give at least 30 days notice before leave, if possible.

• If this is not possible, you must give notice  as is practicable.  
  
• You do not have to ask for FMLA leave by name.  However, you need to tell your employer enough to let your emloyer figure out that the reason you need to take leave will be covered by the FMLA.
  
• The burden is on the employer to figure out whether a leave request is a request for an FMLA-qualified leave.
  
• An employee who does not notify the employer of the need for FMLA leave cannot later claim that the employer denied him or her his or her rights under the Act. 

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What notice must my employer give me before charging time off from work against my FMLA time?

• First, if you have an employee handbook or any other written policies concerning employee benefits or leave rights, your employer must include information about the FMLA with it.

• The handbook must explain the employer's general policy regarding any requirement for fitness-for-duty certification to return to work and requirements to use up vacation while on leave.
  
• The employer's obligation is not just to have a written statement of FMLA rights, but also of the employer's own policy with regard to the FMLA.

• If addition, your employer must give you written guidance about all of your rights and obligations under the FMLA whenever an you ask for leave under the FMLA or the employer intends to designate your leave as covered under the FMLA.
  
• If an employer's policies so provide, the notice must include, as appropriate, the following:

1. that the leave will be counted against their annual FMLA leave entitlement;
2. any requirements for the employee to furnish medical certification of a serious health condition and the consequences of failing to do so;
3. the employee's right to substitute paid leave and whether the employer will require substitution and the conditions related to it;
4. any requirement to maintain health premiums;
5. any requirement to present a fitness-for-duty certificate upon returning to work;
6. their status as 'key employee' and potential for not being restored to work after a leave;
7. right to restoration; and
8. potential liability for employee's share of health premiums if one doesn't return to work.

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What is "intermittent" leave?

• Intermittent leave is time off from work on an occasional basis, as opposed to entire days at a time.  Your doctor must certify that you need to take occasional time off in order to qualify for it.
  
• You can qualify for intermittent leave where your or your family member's condition is intermittent and where your are needed only intermittently. This could be the case, for example, where other care is normally available or where responsibilities are shared with other family members or third parties, but you have to be available in emergencies.
  
• Intermittent or reduced schedule leave may be taken for:

1. planned medical treatment that is medically necessary;
   
2. unanticipated medical treatment that is medically necessary;
   
3. recovery from treatment;
   
4. recovery from a serious health condition; or
   
5. providing care or psychological comfort to an immediate family member with a serious health condition.

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What is a serious health condition?

• A 'serious health condition' is an illness, injury, impairment, or physical or mental condition that involves inpatient care in a hospital, hospice, or residential medical care facility, or continuing treatment by a health care provider.

• A serious health condition covers conditions or illnesses that cause you or a family member to be absent from work on a recurring basis for more than a few days for treatment or recovery. 
  
• The standard for your own serious health condition is higher than that for a family member's serious health condition. Specifically, you  may take leave to care for a family member who merely has a serious health condition.  Your own health condition must be such that you are unable to perform the functions of your position.

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Do I have to give a doctor's excuse?

• Yes, if your employer's FMLA policy says you have to give one.
  
• Employers must ask employees to submit a completed and signed health care provider certification.
  
• Certification may be required at start of leave, during leave, and upon your return after leave.
  
• An employer must allow an employee at least 15 days to obtain a certification after making a request for certification. An employer must give notice of a requirement for medical certification each time a certification is required.

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What does the doctor's certification have to say?

• An employer may ask for a certification that states:

1. the date on which the serious health condition began;
   
2. its probable duration;
   
3. the appropriate medical facts within the knowledge of the health care provider regarding the condition; and
   
4. that the employee is needed to care for a son, daughter, parent, or spouse, with an estimate of the amount of time that the care will require.

• In the case of intermittent leave or leave on a reduced schedule, your employer can also require your doctor to state:

1. in the case of leave for planned medical treatment, the dates on which the treatment is expected to be given and the treatment's duration;
   
2. in the case of leave for an employee's own serious health condition, a statement of the medical necessity for an intermittent or reduced schedule leave; and
   
3. in the case of leave for family members, a statement that this type of leave is necessary for the care of the family member, or will assist in their recovery, and the expected duration and schedule of the intermittent or reduced schedule leave.

• In most cases, the employer should request a certification when the employee gives notice of a need for the leave or within two business days of that notice. In the case of an unforeseen leave, the request should be made within two business days of the start of the leave. An employer may request certification at a later date if it later has some reason to question the leave's appropriateness or duration.

• The requirement to provide a certification must be in writing and also must state the consequences of failing to submit the certification. Thus, where an employer had not yet amended its employee handbook to include FMLA requirements, an employee was improperly terminated for failure to provide the certification where the request was made orally only and she was not informed that she would be terminated for failure to supply the certification.

• If the employer finds a certification incomplete, it must so advise the employee and allow him a reasonable opportunity to fix any deficiency. The 'timely manner' requirement means that certification must be provided, when possible, in advance or at the start of the leave. If the need for the leave does not permit this timing, certification should be provided reasonably soon after the leave begins.
  
• An employer may not request additional information from the employee's health care provider. However, a health care provider representing the employer may contact the employee's provider, with the employee's permission, for the sole purposes of clarification and authentication of the certification. If an employee is on FMLA leave concurrently with a workers' compensation absence and the applicable workers' compensation statute permits an employer or its representative to have direct contact with the employee's provider, the employer may follow the workers' compensation procedures.

The Department of Labor has a downloadable copy of its Certification of Health Care Provider on its website. An employer can use its own form but that form cannot ask for more information than the Department of Labor's Certification of Health Care Provider.

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Can my employer get a second or  third opinion?

• If your employer has reason to doubt the validity of the certification, it may require, at its expense, the opinion of a second health care provider, so long as the health care provider is not regularly employed by the employer.

• Once you submit a completed certification, your employer may not request additional information from the doctor who gave that certification, but may require a second opinion at the its expense.

• Unlike the written request required for the first certification, an employer's request for a second (or third) certification need only be made verbally. If an employer is located in an area where access to health care is extremely limited, it may regularly utilize the services of a provider for second opinions.

• If the second opinion differs from the first opinion, the employer may require, at its own expense, the opinion of a third health care provider, designated or approved jointly by the employer and employee.

• The third health care provider's opinion is final and binding on the employer and employee. The employer and the employee must act in good faith in agreeing on a third opinion provider. In case either fails to act in good faith, they are bound by the earlier opinion--the first health care provider if the employer does not act in good faith or the second health care provider if the employee acts unreasonably.

• An employer must provide a copy of any second or third opinions to the employee on the employee's request. These must be provided within two business days unless there are extenuating circumstances.

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Do I have to update my certification?

Your employer can require you to obtain subsequent recertifications on a reasonable basis. The frequency of recertification depends on the nature of the leave and on other circumstances. Specifically, an employer may require recertification for:

1. pregnancy, chronic, or permanent/long- term conditions under continuing supervision of a health care provider no more frequently than every 30 days and only in connection with an employee's absence, unless circumstances have changed significantly or the employer receives information casting doubt on the reason for the employee's absence;
   
2. a leave that had been certified by a health care provider as having a minimum duration in excess of 30 days and that time period has expired, unless one of the conditions described in (4) below are met;
   
3. intermittent and reduced schedule leave no more frequently than the minimum time period specified on the certification as needed for the leave, unless one of the conditions described in (4) are met; or
   
4. any other condition at any reasonable interval, but no more frequently than every 30 days unless the employee requests an extension, circumstances have changed significantly such as with regards to the illness's duration or nature or complications, or the employer receives information casting doubt on the reason for the employee's absence.
   
5. The employee must respond to the recertification request within the time frame suggested by the employer, which must allow at least 15 calendar days from the date of the request, unless it is not practicable to do so despite the employee's diligent, good-faith efforts. The costs of recertifications are the employee's obligation, unless the employer provides otherwise. However, an employer may not request second or third opinions.

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Do I have to take a fitness for duty exam when I return to work?

• Yes, so long as your employer gives you an additional, specific notice that it requires a fitness-for-duty certification either at the time leave is requested or immediately after leave commences and your employer is advised of the medical circumstances requiring the leave. However, no notice is required if your condition changes from one that did not previously require certification.

• The only fitness for duty exam that you must pass is one by your own doctor.  Your employer must accept your fitness for duty certification and cannot require a second or third opinion.

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What are my rights and remedies if my employer violates the FMLA?

• You can file a complaint with the  Department of Labor, which will investigate and, if appropriate, pursue your FMLA claim for you.
  
• You can also go to court on your own and file a civil lawsuit.  If you win, you can recover:

1. lost pay and benefits plus interest, or the cost of providing care to a seriously ill family member, plus interest.  These are your "economic damages";
   
2. a penalty equal to twice the amount of your economic damages;
   
3. reinstatement, promotion, or an injunction against you  from returning to your job; and
   
4. attorneys fees, expert witness fees and court costs.

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Q     How do I learn more about this topic?

For more information about the FMLA and your right to take Family and Medical Leave, contact Neil Klingshirn at Fortney & Klingshirn. We offer an initial consultation at a charge of $200. If you would like a consultation but are not sure if your claim is worth the expense of a consultation, email me with your question. I will do my best, in a brief response, to let you know if a consultation makes for you.

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Fortney & Klingshirn
4040 Embassy Parkway, Suite 280
Akron, Ohio 44333
telephone 330-665-5445 - fax 665-5446