General
(Q) What does the Family and Medical Leave Act provide?
The Family and Medical Leave Act (FMLA) is a federal law designed to help employees balance their work and family responsibilities. It grants eligible employees up to 12 workweeks of unpaid leave per year for specified family and medical reasons. Crucially, employers are required to maintain group health insurance coverage during this leave period, as if the employee were still working. Upon returning from FMLA leave, employees are entitled to be reinstated to their original job or an equivalent position.
Beyond these general provisions, the FMLA also includes specific entitlements for military families. Eligible employees may utilize FMLA leave for situations arising from a family member’s military deployment. Furthermore, they are entitled to up to 26 weeks of leave within a 12-month period to care for a covered servicemember who has sustained a serious injury or illness.
Coverage
(Q) What types of businesses/employers does the FMLA apply to?
The FMLA applies to:
- Public agencies: This includes federal, state, and local government employers, as well as local education agencies like public schools.
- Private sector employers: The FMLA covers private employers who employ 50 or more employees for at least 20 workweeks in the current or preceding calendar year. This definition includes joint employers and successors of covered employers.
Eligibility
(Q) Who can take FMLA leave?
To be eligible for FMLA leave, an employee must meet several criteria:
- Work for a covered employer: As described in the previous section.
- Hours worked: Have worked at least 1,250 hours during the 12 months immediately preceding the start of the leave. (Note: Special hours of service rules apply to airline flight crew members).
- Worksite employee count: Work at a location where the employer has 50 or more employees within a 75-mile radius.
- Length of employment: Have been employed by the employer for at least 12 months. These 12 months of employment do not need to be consecutive. Generally, employment within the past seven years is counted, unless a break in service was due to military obligations or governed by a collective bargaining agreement or written agreement.
Hours of Service Requirement
(Q) Does the time I take off for vacation, sick leave or PTO count toward the 1,250 hours?
No, the 1,250-hour requirement includes only hours actually worked for the employer. Paid leave, such as vacation, sick leave, or PTO, and unpaid leave, including prior FMLA leave, are not counted towards this requirement. (Special hours of service rules exist for airline flight crew members.)
Unpaid leave
(Q) Is my employer required to pay me when I take FMLA leave?
The FMLA mandates unpaid leave. However, employees may choose, or employers may require, the substitution of accrued paid leave, such as vacation, sick, or family leave, for some or all of the FMLA leave period. To substitute paid leave, employees must adhere to their employer’s usual leave policies. When paid leave is used for an FMLA-covered reason, the leave is still protected under the FMLA.
Qualifying conditions
(Q) When can an eligible employee use FMLA leave?
Eligible employees are entitled to take up to 12 workweeks of unpaid, job-protected leave in a 12-month period for one or more of the following reasons:
- Birth and Bonding: For the birth of a child and to bond with the newborn.
- Adoption or Foster Care: For the placement of a child for adoption or foster care and to bond with the child.
- Care for Family Member: To care for a spouse, child, or parent (not in-laws) with a serious health condition.
- Employee’s Serious Health Condition: When the employee is unable to work due to their own serious health condition.
- Qualifying Exigencies: For certain urgent needs arising from the covered active duty or call to covered active duty status of a spouse, child, or parent who is a member of the National Guard, Reserves, or Regular Armed Forces.
In addition to these reasons, the FMLA also allows eligible employees to take up to 26 workweeks of unpaid, job-protected leave in a “single 12-month period” to care for a covered servicemember with a serious injury or illness.
Birth and bonding
(Q) Are there any restrictions on when an employee can take leave for the birth or adoption of a child?
Leave for newborn or newly placed adopted or foster children must be completed within 12 months of the birth or placement. Intermittent FMLA leave, which means taking leave in separate blocks of time, or a reduced leave schedule, to bond with a child is subject to employer approval. However, if the child has a serious health condition, the employee has the right to take Intermittent Family Medical Leave Act leave to care for the child if medically necessary, and this leave is not limited to the 12-month postpartum/placement period.
(Q) When can a parent take leave for a newborn?
Both mothers and fathers have equal rights to take FMLA leave to bond with a newborn. Mothers can also use FMLA leave for prenatal care, pregnancy-related incapacity, and their own serious health condition following childbirth. Fathers can also use FMLA leave to care for a spouse incapacitated due to pregnancy or childbirth.
Intermittent/reduced leave schedule
(Q) Does an employee have to take leave all at once or can it be taken periodically or to reduce the employee’s schedule?
When medically necessary, employees can take FMLA leave in separate blocks of time (intermittent leave) for a single qualifying reason, or reduce their work schedule (reduced leave schedule). For planned medical treatments, employees must make a reasonable effort to schedule treatments to minimize disruption to the employer’s operations.
Leave for bonding with a newborn or newly placed child can only be taken intermittently or on a reduced leave schedule with the employer’s approval and must be completed within 12 months of the birth or placement.
(Q) Can an employer change an employee’s job when the employee takes intermittent or reduced schedule leave?
For foreseeable medical treatments requiring intermittent family medical leave act or a reduced schedule, employees should collaborate with their employers to schedule leave to minimize disruptions, subject to healthcare provider approval. In such cases, employers may temporarily transfer the employee to an alternative position with equivalent pay and benefits that better accommodates recurring periods of leave.
Serious health condition
(Q) What is a serious health condition?
Common serious health conditions that qualify for FMLA leave include:
- Conditions requiring overnight hospitalization or care in a medical facility.
- Conditions causing incapacitation (inability to work or attend school) for more than three consecutive days with ongoing medical treatment (multiple appointments or one appointment with follow-up care like prescription medication).
- Chronic conditions causing occasional incapacitation and requiring treatment by a healthcare provider at least twice a year.
- Pregnancy, including prenatal care, morning sickness-related incapacity, and medically required bed rest.
(Q) Can I continue to use FMLA for leave due to my chronic serious health condition?
Yes, FMLA leave can be used for any period of incapacity or treatment due to a chronic serious health condition. A chronic serious health condition is defined as one that: (1) requires “periodic visits” for treatment by a healthcare provider or nurse under supervision; (2) continues over an extended period; and (3) may cause episodic incapacity rather than continuous incapacity. “Periodic visits” are clarified as at least twice a year.
(Q) Can I take FMLA leave for reasons related to domestic violence issues?
Yes, FMLA leave may be available for health-related issues stemming from domestic violence. Eligible employees can take FMLA leave for their own serious health condition or to care for a family member with a serious health condition resulting from domestic violence. For instance, leave may be taken for hospitalization or treatment for post-traumatic stress disorder resulting from domestic violence.
(Q) Can I qualify for FMLA leave when I donate an organ to a non-relative?
Yes, organ donation can qualify as a serious health condition under the FMLA if it involves inpatient care or continuing treatment. Organ donation surgery typically requires overnight hospitalization, which alone is sufficient for the surgery and recovery to be considered a serious health condition.
Certification
(Q) Am I required to prove that I have a serious health condition?
Employers may require medical certification from a healthcare provider to support the need for leave due to the employee’s or a family member’s serious health condition. Employees must be given at least 15 calendar days to obtain this certification.
(Q) What happens if my employer says my medical certification is incomplete?
If an employer finds a medical certification incomplete, they must notify the employee and provide a reasonable opportunity to correct the deficiency. The employer must specify in writing what additional information is needed and allow at least seven calendar days for the employee to provide it, unless seven days is not feasible despite the employee’s good faith efforts.
(Q) Can my employer make me get a second opinion?
Yes, if an employer doubts the validity of the medical certification, they may require a second or even a third medical opinion, at the employer’s expense.
(Q) Do I have to give my employer my medical records for leave due to a serious health condition?
No, employees are not required to provide medical records. However, employers have the right to request a medical certification containing sufficient medical facts to establish the existence of a serious health condition.
(Q) How soon after I request leave does my employer have to request a medical certification of a serious health condition?
In most cases, employers should request medical certification when an employee gives notice of leave or within five business days. For unforeseen leave, the request should be within five days after the leave begins. Employers may request certification later if they question the leave’s appropriateness or duration.
(Q) May my employer contact my health care provider about my serious health condition?
Yes, employers can contact an employee’s healthcare provider for authentication or clarification of the medical certification, but this contact must comply with HIPAA privacy regulations. Contact must be made by a healthcare provider, HR professional, leave administrator, or management official – not the employee’s direct supervisor. Employee authorization is needed for the healthcare provider to release individually-identifiable health information to the employer. Employers cannot request information beyond what is on the medical certification form.
(Q) Must I sign a medical release as part of a medical certification?
No, employers cannot mandate a medical release or waiver as part of certification. Completing such authorization is at the employee’s discretion. However, employees are responsible for providing a complete and sufficient certification. Failure to provide this, or authorization for the healthcare provider to do so, may result in FMLA leave denial.
(Q) How often may my employer ask for medical certifications for an on-going serious health condition?
Recertification can be requested no more often than every 30 days for ongoing conditions, unless the condition is expected to last longer than 30 days. For conditions certified to last longer than 30 days, recertification can be requested after the specified period, but no more than every six months in connection with an absence. Recertification can be requested in less than 30 days if leave is extended, circumstances change significantly, or the employer receives information casting doubt on the reason for leave or certification validity. New medical certifications can be requested each leave year for conditions lasting over a year, subject to second and third opinions.
(Q) Can employers require employees to submit a fitness-for-duty certification before returning to work after being absent due to a serious health condition?
Yes, employers can have a uniformly applied policy requiring a fitness-for-duty certification from the employee’s healthcare provider before reinstatement after FMLA leave for the employee’s own serious health condition. This certification can address the employee’s ability to perform essential job functions if the employee has been notified of this requirement and provided a list of essential functions. For employees on intermittent family medical leave act or reduced schedule leave, fitness-for-duty certifications can be required up to once every 30 days if reasonable safety concerns exist.
(Q) What happens if I do not submit a requested medical or fitness-for-duty certification?
Failure to timely submit a medical certification (without sufficient explanation) may delay or deny FMLA protection. If no medical certification is provided, the leave is not FMLA leave. Failure to submit a fitness-for-duty certification may delay job restoration until the certification is provided, and continued failure may result in denial of reinstatement.
Mental Health
(Q) May I use FMLA leave when I am unable to work because of severe anxiety? I see a physician monthly for this condition to manage my symptoms.
Yes. If you work for a covered employer and are FMLA-eligible, you can take leave if unable to work due to a serious health condition, including mental health conditions. Chronic conditions, whether physical or mental (like anxiety disorders), causing occasional inability to work are qualifying serious health conditions if they require treatment by a healthcare provider at least twice a year and recur over an extended period.
(Q) I am under the care of a psychologist and attend psychotherapy sessions regularly for anorexia nervosa. Is my leave for treatment related to this condition protected under the FMLA?
Yes. If eligible for FMLA, you may take leave for treatment visits and therapy sessions for anorexia nervosa. FMLA allows leave when unable to work, including inability to perform essential job functions, due to a serious health condition, or when receiving treatment for it.
(Q) My daughter, who is 24 years old, was recently released from several days of inpatient treatment for a mental health condition. May I use FMLA leave for her care? She is unable to work or go to school and needs help with cooking, cleaning, shopping, and other daily activities.
Yes. You can use FMLA leave to care for a child over 18 if they are incapable of self-care due to a disability as defined by the ADA, have a serious health condition under FMLA, and need care because of it. Disabilities under the ADA include mental health conditions substantially limiting major life activities, such as working. Major depressive disorder, bipolar disorder, OCD, and schizophrenia are examples. A mental health condition requiring overnight hospitalization is a qualifying serious health condition under FMLA.
(Q) May I use FMLA leave to attend a family counseling session for my spouse who is in an inpatient treatment program for substance abuse?
Yes. You may use FMLA leave to care for your spouse undergoing inpatient substance abuse treatment. Care can include participating in treatment programs or attending care conferences with healthcare providers. However, FMLA leave is not permitted for substance abuse treatment itself unless the healthcare provider is the one providing the treatment or for absences due to the employee’s own substance abuse, unless it qualifies as a serious health condition.
(Q) When my father passed away, my mother began to see a doctor for depression and needs assistance with day-to-day self-care because of this condition. Currently, I use FMLA leave to take her to her medical appointments and my sister stays with her during the day. May I also use FMLA leave to help my mother with her day-to-day needs?
Yes. You can use FMLA leave to provide physical and psychological care to your mother. You don’t need to be the sole caregiver to use FMLA leave. Caring for a family member under FMLA includes assisting with basic medical, hygienic, nutritional, or safety needs, and substituting for other caregivers.
(Q) My spouse is a veteran who is suffering from post-traumatic stress disorder (PTSD) since his honorable service discharge last year. May I use FMLA leave for his care?
Yes. Military caregiver leave under FMLA can be used to care for a veteran relative undergoing treatment, recuperation, or therapy for a serious injury or illness incurred in the line of duty while on active duty, including conditions aggravated by service, such as PTSD, TBI, or depression, which may manifest during or after service.
(Q) I use FMLA leave once a month for appointments with a mental health therapist. Is my employer required to keep my mental health condition confidential?
Yes. FMLA requires employers to keep medical records confidential and separate from routine personnel files, complying with other laws like ADA or GINA where applicable. Supervisors and managers may be informed of the need for leave, work restrictions, or accommodations, but employers are prohibited from sharing or threatening to share health information to discourage FMLA use.
(Q) My son is in the fourth grade and sees a doctor for attention-deficit/hyperactivity disorder (ADHD). After I used FMLA leave to take my son to a behavioral therapy appointment for this condition my employer sent me an e-mail informing me that I received a negative point on my attendance record. Can my employer punish me for using FMLA leave?
No. Employers are prohibited from discriminating or retaliating against employees for exercising FMLA rights. This includes using FMLA leave as a negative factor in employment actions, such as hiring, promotions, disciplinary actions, or points-based attendance policies. Counting FMLA leave against attendance records is a violation.
Job restoration
(Q) Can my employer move me to a different job when I return from FMLA leave?
Upon return from FMLA leave, employers must reinstate employees to the same job or a nearly identical (equivalent) job. An equivalent job must:
- Offer the same shift, work schedule, and be at a geographically proximate worksite.
- Involve the same or substantially similar duties, responsibilities, and status.
- Require the same general level of skill, effort, responsibility, and authority.
- Provide identical pay, including equivalent premium pay, overtime, bonus opportunities, profit-sharing, unconditional pay increases received during FMLA leave.
- Offer identical benefits, such as insurance, leave, educational benefits, pensions, etc.
Employee notice
(Q) What and when do I need to tell my employer if I plan to take FMLA leave?
For foreseeable FMLA leave, employees must provide 30-day advance notice when possible. If leave is foreseeable less than 30 days in advance, notice must be given as soon as practicable, generally the same or next business day. For unforeseeable leave, notice must be given as soon as practicable under the circumstances. Employees must comply with the employer’s usual notice and procedural requirements for requesting leave, unless unusual circumstances apply.
Employees must provide sufficient information for employers to reasonably determine if FMLA may apply, such as indicating pregnancy-related incapacity, hospitalization, inability to perform job functions, or that the employee or family member is under continuing healthcare provider care. For first-time FMLA leave requests, employees don’t need to expressly mention FMLA. However, for subsequent leave requests for the same qualifying reason, employees must reference the qualifying reason or the need for FMLA leave.
(Q) Is an employee required to follow an employer’s normal call-in procedures when taking FMLA leave?
Yes, employees must comply with employer call-in procedures unless unusual circumstances prevent it, in which case notice must be given as soon as practicably possible. Failure to provide timely notice may result in delay or denial of FMLA leave and potential disciplinary action, according to employer rules.
Employer notice
(Q) Are employers required to tell their employees of the existence of FMLA and the employee’s right to take FMLA leave?
Yes, every FMLA-covered employer must post a notice explaining FMLA provisions and complaint procedures in conspicuous places on their premises. Willful violation of this posting requirement can result in civil penalties. Employers must also include this general notice in employee handbooks or distribute a copy to new employees upon hiring if no handbook exists.
When an employee requests FMLA leave or the employer learns leave may be for an FMLA purpose, the employer must notify the employee of their eligibility and FMLA rights and responsibilities. When the employer has enough information to determine leave is FMLA-qualifying, they must notify the employee that the leave is designated as FMLA leave.
(Q) How soon after an employee provides notice of the need for leave must an employer determine whether someone is eligible for FMLA leave?
Employers must notify employees of their FMLA leave eligibility (or ineligibility and reasons) within five business days of the leave request or learning that leave may be FMLA-qualifying, barring extenuating circumstances.
(Q) Does an employer have to provide employees with information regarding their specific rights and responsibilities under the FMLA?
Yes, when notifying employees of FMLA eligibility, employers must also provide notice of specific expectations and obligations, including certification requirements, the right to substitute paid leave and conditions, and entitlement to unpaid FMLA leave if conditions aren’t met. If rights and responsibilities information changes, employees must be informed within five business days of the first subsequent leave notice. Employers are expected to answer employee questions about their rights and responsibilities.
(Q) How soon after an employee provides notice of the need for leave must an employer notify an employee that the leave will be designated and counted as FMLA leave?
Employers must notify employees whether leave is designated as FMLA leave within five business days of learning it’s for an FMLA-qualifying reason, barring extenuating circumstances. The designation notice must state if paid leave will be substituted, and if a fitness-for-duty certification is required for return to work. If the leave amount is known, it must be included in the notice. If not, this information must be provided upon employee request, no more than every 30 days and only if leave was taken during that period.
Military provisions
(Q) What is covered active duty?
For Regular Armed Forces members, “covered active duty or call to covered active duty status” means duty during deployment to a foreign country. For Reserve component members (National Guard and Reserves), it means duty during deployment to a foreign country under federal orders in support of a contingency operation.
(Q) What is the definition of deployment of a member with the Armed Forces to a foreign country?
Deployment to a foreign country means deployment outside of the United States, Washington D.C., or any US territory or possession, including international waters.
Caregiver leave
(Q) Are families of servicemembers in the Regular Armed Forces eligible for military caregiver leave?
Yes, military caregiver leave is available for seriously injured or ill members of both the Regular Armed Forces and the National Guard or Reserves.
(Q) Can I take military caregiver leave if I am the stepson or stepdaughter of the covered servicemember or if I am the stepparent of a covered servicemember?
Yes. For military caregiver leave, “son or daughter of a covered servicemember” includes biological, adopted, foster, stepchildren, legal wards, or children for whom the employee stood in loco parentis, of any age. “Parent of a covered servicemember” includes biological, adoptive, step, or foster parents, or anyone who stood in loco parentis to the servicemember, but not parents-in-law.
(Q) How much leave may I take to care to for a covered servicemember?
Eligible employees can take up to 26 workweeks of leave in a “single 12-month period” to care for a seriously injured or ill covered servicemember. This 12-month period starts on the first day of military caregiver leave and ends 12 months later, regardless of the employer’s method for calculating leave for other FMLA reasons.
(Q) May I take FMLA leave to both care for a covered servicemember and for another FMLA qualifying reason during this “single 12-month period?”
Yes. Employees are entitled to a combined total of 26 workweeks of military caregiver leave and other FMLA-qualifying leave in this single 12-month period, but no more than 12 weeks for other FMLA reasons. For example, an employee could take 12 weeks for newborn care and 14 weeks of military caregiver leave, but not 16 weeks for newborn care and 10 weeks of military caregiver leave.
(Q) Can I carry-over unused weeks of military caregiver leave from one 12-month period to another?
No. Unused military caregiver leave within the single 12-month period is forfeited. However, after this period, FMLA leave may still be available to care for the covered military member if they qualify as a family member with a serious health condition under non-military FMLA provisions.
(Q) Who is a servicemember’s next of kin for purposes of military caregiver leave?
A servicemember’s “next of kin” is their nearest blood relative other than a spouse, parent, son, or daughter, prioritized as: blood relatives with legal custody, siblings, grandparents, aunts/uncles, first cousins, unless the servicemember designates another blood relative in writing. All family members at the closest familial level are considered next of kin unless a designation is made.
(Q) Can I take military caregiver leave for more than one seriously injured or ill servicemember, or more than once for the same servicemember if he or she has a subsequent serious injury or illness?
Yes. Military caregiver leave is “per-servicemember, per-injury.” Employees can take 26 weeks for one servicemember in a 12-month period, and then another 26 weeks in a different period for another servicemember. Also, 26 weeks can be taken for one servicemember in a 12-month period, and another 26 weeks in a different period for the same servicemember with a subsequent serious injury or illness.
(Q) Can I care for two seriously injured or ill servicemembers at the same time?
Yes, but the total leave in each single 12-month period cannot exceed 26 workweeks.
(Q) What if my covered servicemember receives a catastrophic injury and the military issues me travel orders to immediately fly to Landstuhl Regional Medical Center in Germany to be at his bedside. Do I have to provide a completed certification before flying to Germany?
No. For servicemembers with catastrophic injuries where families receive invitational travel orders (ITO) or authorizations (ITA), submission of the ITO or ITA is sufficient certification for military caregiver leave during the period specified. This applies even if the employee seeking leave is not the named recipient on the ITO/ITA, but is a spouse, parent, son, daughter, or next of kin. If care is needed beyond the ITO/ITA period, certification may be required for the remaining leave.
(Q) How is leave designated if it qualifies as both military caregiver leave and leave to care for a family member with a serious health condition?
For leave qualifying as both military caregiver leave and leave to care for a family member with a serious health condition, employers must designate it as military caregiver leave first. This simplifies administration due to the separate 12-month period for military caregiver leave. Leave cannot be counted against both the 26-week military caregiver leave entitlement and the 12-week entitlement for other FMLA reasons.
(Q) What type of notice must I provide to my employer when taking FMLA leave because of a qualifying exigency?
Notice for qualifying exigency leave should be given as soon as practicable. If notice of a family support program is received a week in advance, notice to the employer should be given the same or next business day. For unforeseeable leave, normal call-in procedures should be followed, unless unusual circumstances apply. Employees don’t need to specifically assert FMLA rights, but must provide “sufficient information” to make the employer aware of the need, timing, and duration of leave.
(Q) Are the certification procedures (timing, authentication, clarification, second and third opinions, recertification) the same for qualifying exigency leave and leave due to a serious health condition?
Timing requirements for certification are the same for all FMLA leave requests, including military family leave. Employees must provide requested certification within the employer’s timeframe (at least 15 calendar days), unless impracticable despite diligent efforts. For qualifying exigency leave, employers may verify meeting schedules and purposes with third parties and confirm the military member’s active duty status with the Department of Defense. Second or third opinions and recertification are not permitted for qualifying exigency leave.
(Q) How much FMLA leave may I take for qualifying exigencies?
Up to 12 workweeks of FMLA leave can be taken for qualifying exigencies within the employer’s established 12-month FMLA period. Qualifying exigency leave can also be taken intermittently or on a reduced leave schedule.
(Q) How much leave can I take if I need leave for both a serious health condition and a qualifying exigency?
Qualifying exigency leave, like leave for a serious health condition, is a FMLA-qualifying reason for up to 12 workweeks of FMLA leave per year. Employees can take all 12 weeks as qualifying exigency leave, or combine it with leave for a serious health condition, not exceeding 12 weeks total for these combined reasons.
(Q) Can I take qualifying exigency leave when my military member returns from deployment?
Yes, qualifying exigency leave is available for certain post-deployment exigencies, including reintegration activities, for 90 days following the military member’s covered active duty status termination.
USERRA-FMLA Questions
(Q) What is the Uniformed Services Employment and Reemployment Rights Act (USERRA)?
USERRA is a federal law protecting reemployment rights for veterans and National Guard and Reserve members after qualifying military service. It also prohibits employer discrimination based on past service, current obligations, or intent to join the uniformed services.
(Q) What effect does USERRA have on FMLA-eligibility requirements?
USERRA ensures reemployed servicemembers receive all employment benefits they would have obtained with continuous employment, excluding short-term compensation like accrued vacation. FMLA leave is a potential benefit. Eligibility depends on whether the servicemember would have met FMLA eligibility requirements if not for USERRA-covered service.
(Q) How should the 12-month FMLA requirement be calculated for returning servicemembers?
For FMLA eligibility, USERRA requires crediting reemployed individuals with months of service they would have had but for USERRA-covered service. Each month of USERRA-covered service counts as a month employed. For example, an employee with nine months of employment ordered to nine months of military service, upon reemployment, is considered to have over 12 months of employment for FMLA eligibility. The 12 months of employment need not be consecutive.
(Q) How should the 1,250 hours-of-service requirement be calculated for returning servicemembers?
Returning servicemembers must be credited with hours they would have worked but for USERRA-covered service towards the 1,250-hour FMLA requirement. Hours that would have been worked are added to actual hours worked in the previous 12 months to meet this requirement. Pre-service work schedules can be used to calculate hours that would have been worked.
(Q) Where can I get more information about USERRA and the FMLA?
The Department of Labor’s Veterans’ Employment and Training Service (VETS) administers USERRA, provides assistance, and investigates complaints. Information is available on the VETS website.
Airline flight crew employees
(Q) Who is an airline flight crew employee?
An airline flight crew employee is an airline flight crewmember or flight attendant as defined in FAA regulations.
(Q) How do airline flight crew employees qualify to take leave under the FMLA?
Airline flight crew employees must work for a covered employer, be employed at a worksite with 50+ employees within 75 miles, have worked for the employer for 12 months, and meet special hours of service requirements. These requirements include working or being paid for at least 60% of their applicable monthly guarantee and at least 504 hours (excluding commute, vacation, medical, or sick leave) in the 12 months before leave. Employees not defined as flight crewmembers or attendants by FAA regulations are subject to standard FMLA eligibility requirements.
(Q) How do you determine the worksite for an airline flight crew employee for FMLA eligibility?
The worksite is the terminal where employees are assigned, report for work, depart, and return after assignments, typically their home base or domicile.
(Q) What is the applicable monthly guarantee?
For airline flight crew employees not on reserve status (line holders), it’s the minimum scheduled hours per month agreed upon. For those on reserve status, it’s the minimum guaranteed paid hours per month.
(Q) How is the number of hours worked determined for an airline flight crew employee?
Hours worked are the employee’s duty hours in the previous 12 months.
(Q) What are an airline flight crew employee’s duty hours?
Duty hours include time spent on various pre- and post-flight support duties, beyond flight or block hours, widely recognized in the airline industry.
(Q) How is the number of hours paid determined for an airline flight crew employee?
Hours paid are the wages received in the previous 12 months, including paid training time, which counts towards hours of service.
(Q) Does an airline flight crew employee’s military service count towards his or her FMLA eligibility?
Yes, returning airline flight crew employees from USERRA-covered service are credited with hours they would have worked or been paid but for their service, added to actual hours worked or paid in the prior 12 months, to meet FMLA hours of service requirements. Pre-service work schedules can be used for calculations.
(Q) How do collective bargaining agreements (CBAs) affect airline flight crew employees under the FMLA?
Employers of airline flight crew employees must adhere to any CBA or benefit plan providing greater family or medical leave rights than FMLA. FMLA rights cannot be diminished by any plan. FMLA supersedes CBA provisions that offer reinstatement to non-equivalent positions due to seniority (e.g., lower pay).
(Q) How much FMLA leave may an airline flight crew employee take?
Eligible airline flight crew employees are entitled to 72 days of FMLA leave per 12-month period for FMLA-qualifying reasons, based on a uniform six-day workweek multiplied by the 12-workweek entitlement. For military caregiver leave, they are entitled to 156 days in a single 12-month period, based on a six-day workweek multiplied by the 26-workweek entitlement.
(Q) How would an employer calculate FMLA leave for an airline flight crew employee who takes less than a day of FMLA leave?
If an airline flight crew employee needs FMLA leave for a short appointment (e.g., two hours), employers may require using a full day of FMLA leave. The entire day is counted as FMLA leave. However, if an employer allows returning to work on the same day or an employee leaves early for FMLA reasons, only the actual leave taken can be deducted from their entitlement.
(Q) Does an employer have to return an airline flight crew employee to work after a period of FMLA leave?
Yes, employers of airline flight crew employees must reinstate them to the same or an equivalent job upon return from FMLA leave, meeting the same equivalency criteria as for all FMLA-covered employers regarding shift, worksite, duties, pay, and benefits.
Miscellaneous Questions
(Q) I am a caregiver for my brother who is not able to take care of himself. Can I take FMLA leave for his care?
Potentially. FMLA leave for relative care generally covers spouses, children, and parents. However, leave can be taken to care for a sibling if the employee stood in loco parentis to the sibling and the sibling is under 18, or is over 18 and incapable of self-care due to a mental or physical disability, and has an FMLA-qualifying serious health condition.
(Q) Can my FMLA leave be counted against me for my bonus?
Employers can deny bonuses based on goals like hours worked, sales, or perfect attendance to employees taking FMLA leave, if they treat FMLA leave the same as non-FMLA leave. For example, if vacation leave doesn’t disqualify employees from a perfect attendance bonus, then using vacation leave for FMLA reasons should not either.
(Q) My medical condition limits me to a 40 hour workweek but my employer has assigned me to work eight hours of overtime in a week. Can I take FMLA leave for the overtime?
Yes. With proper medical certification, employees can use FMLA leave instead of working required overtime. Hours not worked due to FMLA leave but that would have been required overtime can be counted against FMLA entitlement. Overtime assignment must not discriminate against employees needing FMLA leave.
(Q) Can I use my paid leave as FMLA leave?
Yes, employees can choose or employers may require substituting accrued paid leave for unpaid FMLA leave, if the employee complies with paid leave policy terms. Substituting paid leave means the two types of leave run concurrently, with paid leave benefits and FMLA protection applying simultaneously.
(Q) How do collective bargaining agreements (CBAs) affect the FMLA Regulations?
Employers must observe CBAs or benefit plans that provide greater family or medical leave rights than FMLA. FMLA rights cannot be diminished by any plan, and FMLA supersedes any CBA provision that offers reinstatement to a non-equivalent position.
Prohibited acts
(Q) What happens if I am mistreated for taking FMLA leave or if I am denied FMLA leave?
Employers are prohibited from interfering with, restraining, or denying FMLA rights, retaliating for complaints or cooperation with the Wage and Hour Division (WHD), or for bringing private action. Contact the WHD immediately if retaliated against for protected activities.
Additional Information / Complaints
(Q) Who do I contact if I need additional information or I want to file a complaint?
For FMLA questions or rights violations, contact the Wage and Hour Division (WHD) at 1-866-487-9243, or visit the DOL website to find a local WHD office.
