FMLA MASTER QUESTIONS

Follow-up Questions
1.

HOW IS FMLA TIME OFF COUNTED WHEN THE EMPLOYEE

REGULARLY WORKS OVERTIME (I.E., 48 HOURS PER WEEK)?

The DOL regulations offers one of two options, both of which are set out in Fact
Sheet 28I, available at www.dol.gov.whd/regs/compliance/whdfs28i.pdf:
First, if the schedule varies too much, DOL says:
When an employees schedule varies so much that the employer is unable to
determine how many hours the employee would have worked during the week the
employee takes FMLA leave, the employer may use a weekly average to calculate the
employees FMLA leave entitlement. The weekly average is determined by the hours
scheduled over the 12 months prior to the beginning of the leave and includes any hours
for which the employee took any type of leave. See also the regulations at 29 C.F.R.
825.205(b)(3).
Second, if the overtime can be counted as either required or voluntary, it is
treated, in turn, as follows:
Required overtime hours that are not worked by the employee because of an
FMLA qualifying reason may be counted as FMLA leave. However, voluntary overtime
hours not worked due to an FMLA-qualifying reason may not be counted as FMLA
leave. See also the regulations at 29 C.F.R. 825.205(c).
2.

HOW IS FMLA LEAVE TIME COUNTED WHEN THE EMPLOYEE

WORKS IRREGULAR WEEKS (I.E., 35 HOURS ONE WEEK AND 50
HOURS THE NEXT)?

This is answered above, in the first option, and is also set forth in Fact Sheet 28I
and regulations referenced above.
3.

IF AN EMPLOYEE IS OFF ON FMLA LEAVE CARING FOR AN

INJURED MILITARY SERVICE FAMILY MEMBER, IS THE FMLA
LEAVE CARE TIME COUNTED AS WORKING TIME FOR
PURPOSES OF COMPUTING FMLA ELIGIBILITY FOR THE
EMPLOYEE ON LEAVE FOR THE NEXT YEAR?

No, the regulations are clear that, with the exception under the Uniformed
Services Employment and Reemployment Rights Act (USERRA) requirements, and the
special rules applicable to airline flight crew members, the determining factor is the
number of hours an employee has worked for the employer within the meaning of the
FLSA. 29 C.F.R. 825.10(c)(3). This does not count sick and other, including FMLA,
leave.

4.

WHAT ARE THE CRITERIA GOVERNING POSSIBLE JOINT

EMPLOYER RELATIONSHIPS BETWEEN TEMPORARY SERVICES
AND SECONDARY EMPLOYERS, INCLUDING RESPONSIBILITY FOR
DETERMINING ELIGIBILITY, PROVIDING NOTICE, ETC.

This is a hot area of FMLA law, and we could provide a segment of the FMLA
presentation devoted exclusively to joint employer scenarios. Here, though, assuming
there is a joint employer relationship, the primary employer is responsible for giving
required notices to its employees, providing FMLA leave, and maintenance of health
benefits. 29 C.F.R. 825.106(c).
Factors to be considered in determining which is the primary employer include
authority/responsibility to hire and fire, assign/place the employee, make payroll, and
provide employment benefits. 29 C.F.R. 825.106(c). For the common example of the
temporary placement agency, for example, the regulations provide that the placement
agency is generally the primary employer. In the event of a Professional Employer
Organization, which contracts with client employers to perform administrative functions
such as payroll, benefits, regulatory paperwork, and updating employment policies, the
client employer would most commonly be the primary employer. 29 C.F.R. 825.106(b)
(2), (c).
5.

IS IT APPROPRIATE TO DENY FMLA LEAVE WHEN, AS AN

EXAMPLE,
A.
B.
C.
D.

AN EMPLOYEE IDENTIFIES A POTENTIALLY SERIOUS

CONDITION;
THE FMLA PAPERWORK IS SENT ON MARCH 1;
THE EMPLOYEE FAILS TO RETURN IT WITHIN 15 DAYS;
LATER, AFTER GETTING IN ABSENTEEISM TROUBLE, THE
EMPLOYEE PRODUCES THE ORIGINAL FMLA PAPERWORK
ON JUNE 15, INCLUDING MEDICAL CERTIFICATION DATED
WITHIN 15 DAYS OF THE FIRST OCCURRENCE OF THE SHC,
NOW CLAIMING HE JUST FORGOT TO TURN IN THE FMLA
PAPERWORK EARLIER?

The regulations directly address an employees failure to provide certification.

For foreseeable leave, the employer can deny FMLA coverage until the required
certification is provided. 29 C.F.R. 825.313(a).
In the circumstances of unforeseeable leave, the employer may deny FMLA
coverage for the requested leave if the employee fails to provide a certification within 15
calendar days from receipt of the request for certification unless not practicable due to
extenuating circumstances. 29 C.F.R. 825.313(b). The regulations give an example
of a medical emergency as extenuating circumstances.

However, the regulations also provide that, [a]bsent such extenuating

circumstances, if the employee fails to timely return the certification, the employer can
deny FMLA protections for the leave following the expiration of the 15-day time period
until a sufficient certification is provided. 29 C.F.R. 303(b). Here, unless there are
extenuating circumstances, and the employee has failed to provide the certification, the
leave is not FMLA leave.
6.

IF SOMEONE IS OUT ILL FOR MORE THAN THREE DAYS, IS IT BEST

TO IMMEDIATELY SEND THE FMLA PAPERWORK ASSUMING IT
MIGHT BE A QUALIFYING ILLNESS?

This may be a little overkill. The regulations are very clear that an employee
need not expressly assert rights under the FMLA or even mention the FMLA, so it is a
good idea to treat extended leave situations with care. 29 C.F.R. 825.302(c).
However, the employee is at least required to give verbal notice that would be
sufficient to make the employer aware that the employee needs FMLA-qualifying
leave. 29 C.F.R. 825.302(a). The regulations do not encourage employers to stick to
strict call in procedures or internal policies if, for example, an employee needed
emergency medical treatment, but they do contemplate at least some notice.
7.

IS THERE ANYTHING EFFECTIVE WE CAN DO TO MANAGE

INTERMITTENT MIGRAINE HEADACHE ABSENCES WHEN THE
MEDICAL CERTIFICATION DOCUMENTED THAT THERE COULD BE
EPISODIC FLARE-UPS WITH NO FOREWARNING?

Yes and no. This sounds like a candidate for the recertification rights an employer
has if the employer has a reason to doubt the validity of a medical certification.
For the second opinion, the employer may ask for the same information as that
permitted under the original certification, and the employee has the same obligations to
participate and cooperate in the second certification. 29 C.F.R. 825.308(e).
As a part of the information allowed to be obtained on recertification for leave
taken because of a serious health condition, the employer may provide the health care
provider with a record of the employee's absence pattern and ask the health care provider
if the serious health condition and need for leave is consistent with such a pattern (such as
when, e.g., migraines are typically flaring up on Mondays and Fridays, giving the
employee a long weekend). 29 C.F.R. 825.308(e).
8.

WHAT CAN WE DO TO CURB ABUSE OF HOLIDAY FMLA

ABSENCES IF EMPLOYEES BRING MEDICAL CERTIFICATION

FROM FOREIGN DOCTORS AUTHORIZING TWO MONTHS OF

ABSENCE OVER THE CHRISTMAS HOLIDAY FOR DEPRESSION?
Here, the regulations permit an employee or their family member who is visiting
abroad while a serious health condition develops to use a foreign health care provider in
that country. 29 C.F.R. 825.307(f).
While the employer cannot reject the certification because it is from a foreign
provider, the employer can still require a second certification (and third, under the right
circumstances). 29 C.F.R. 825.307(f).
9.

HOW IS SIGNIFICANT RISK DEFINED FOR PURPOSES OF

DETERMINING WHEN NOT TO BRING SOMEONE BACK FROM
INTERMITTENT LEAVE BECAUSE OF AN ONGOING SHC?

The regulations provide that, an employer is entitled to a certification of fitness

for duty for intermittent or a reduced leave schedule only if reasonable safety concerns
exist regarding the employees ability to perform his or her duties. 29 C.F.R.
825.312(f). Reasonable safety concerns are defined to mean a significant risk of harm
to the individual employee or others. The regulations provide that, to determine whether
these reasonable safety concerns exist, an employer should consider the nature and
severity of the potential harm and the likelihood that potential harm will occur. 29
C.F.R. 312(f).
10.

CAN AN EMPLOYEE REJECT FMLA WHEN:

a.
b.
c.

They clearly have a serious health condition;

They should provide medical certification; and
We want them to burn their FMLA eligibility?

Generally, yes. This will depend on the facts and circumstances of each case. If
the employee can meet the essential functions of the position, there are potential ADA
and other issues that may be raised by a scenario where an employer insists the employee
take FMLA leave.
11.

CAN WE COUNT FMLA LEAVE BY WEEKS INSTEAD OF HOURS?

No, the changes in regulations require that FMLA be permitted for employees in
the smallest increment of time the employer allows for the use of other forms of leave.
29 C.F.R. 825.205(a). These segments of time cannot be greater than an hour. 29
C.F.R. 825.205(a).