Leave - Family Medical Leave Act

Under the Family and Medical Leave Act of 1993 (FMLA), most Federal employees are entitled to a total of up to 12 workweeks of unpaid leave during any 12-month period for the following purposes:

• the birth of a son or daughter of the employee and the care of such son or daughter;
• the placement of a son or daughter with the employee for adoption or foster care;
• the care of spouse, son, daughter, or parent of the employee who has a serious health condition; or
• a serious health condition of the employee that makes the employee unable to perform the essential functions of his or her position.

Under certain conditions, an employee may use the 12 weeks of FMLA leave intermittently. An employee may elect to substitute annual leave and/or sick leave, consistent with current laws and OPM's regulations for using annual and sick leave, for any unpaid leave under the FMLA. FMLA leave is in addition to other paid time off available to an employee.

Under the National Defense Authorization Act (FY 2008), an eligible employee who is the spouse, son, daughter, parent, or next of kin of a covered service member who suffers a serious injury or illness on active military duty is entitled to 26 workweeks of leave during a single 12-month period to care for the service member. This includes the 12 weeks of regular FMLA leave and is not in addition to it. The FY 2010 Defense Department Appropriations Act extended caregiver leave to cover care for a veteran for up to five years after the veteran leaves military service. Although these provisions are in effect, OPM regulations are pending.

Definitions

• Family member is defined only to include parent, spouse, son and daughter.
• A parent may be a biological parent, or an individual who stood (or stands) in loco parentis to the employee when the employee is a son or daughter. This term does not include parents-in-law.
• An individual may be in loco parentis when he/she has day-to-day responsibility for the care or financial support of a child, or who did when the employee was a child. A biological or legal relationship is not necessary to establish this relationship.
• A serious health condition under the FMLA has been defined as an illness, injury, impairment, or physical or mental condition that involves either inpatient care or continuing treatment by a health care provider.
• A spouse is defined as an individual who is a husband or wife according to a legal union between one man and one woman, including common-law marriage. A domestic partner is not included as a spouse.
• The definition of "serious illness or injury" as it pertains to military caregiver leave was changed by the FY 2010 Defense Authorization Act of October 2009. The previous definition was an injury or illness incurred by an active duty Armed Forces servicemember in the line of duty that may render the servicemember medically unfit to perform the duties of his/her office, grade, rank or rating. Now the definition includes a condition that may have been incurred in the line of duty or may have existed before the military service but was aggravated by that service. The condition need not have manifested itself during military service but, instead, could appear or develop after the end of military service.

Eligibility

• To be eligible for FMLA leave, an employee must have worked as a civil servant for 12 months.
• Time served outside the civil service (such as at the Postal Service) and time spent as an intermittent employee does not count toward the requisite 12 months.
• Federal holidays during the period when an employee uses FMLA leave will not count toward the entitlement.
• A part-time employee is entitled to prorated FMLA leave. A federal temporary employee must have an appointment with a time limitation beyond one year and meet other employee eligibility requirements in order to receive FMLA leave.

Intermittent Leave

• FMLA leave may be taken intermittently due to a "serious health condition," if it is medically necessary.
• Intermittent FMLA leave related to new child purposes is permissible, if the employee and the agency agree to it.

Notice

• An employee must invoke the FMLA when requesting leave.
• A statement of unspecified illness, without accompanying medical documentation, is not sufficient notice.
• When FMLA is based on an expected birth, placement of a child, or planned medical treatment, an employee must give a 30 calendar day advance notice for FMLA leave.
• If the need for leave is not foreseeable, such as a medical emergency or due to the unexpected availability of a child for adoption or foster care, and the employee cannot provide 30 calendar days notice of the need for leave, the employee must provide notice within a reasonable period of time appropriate to the circumstances involved.
• If the need for leave is foreseeable, and the employee fails to give 30 calendar days notice with no reasonable excuse for the delay of notification, the agency may delay the taking of leave until at least 30 calendar days after the date that the employee provides notice of the need for FMLA leave.
• An employee may not retroactively invoke entitlement to FMLA leave. However, if an employee and his/her personal representative are physically or mentally incapable of invoking the employee's entitlement to FMLA leave during the entire period in which the employee is absent from work, the employee may retroactively invoke entitlement to FMLA leave within two workdays after returning to work.

Medical Certification

• The FMLA provides that medical certification will be sufficient if it satisfies the statutory minimal requirements under 5 USC 6383 (b).
• All medical records are subject to the confidentiality provisions of the Privacy Act. The Department of Labor Medical Certification Forms (see reference below), specifically designed for the FMLA, prompts agencies to request the appropriate medical information as specified in 5 CFR 630.1207.
• If the agency requests medical certification, an employee must provide the written medical certification required, signed by the health care provider, no later than 15 calendar days after the date of request.
• If it is not practical to provide medical certification within 15 calendar days after the date requested by the agency, despite the employee's diligent, good-faith efforts, the employee will have up to 30 calendar days to have medical certification submitted.
• If an agency doubts the validity of medical records, it can require a second and third (and final) opinion at the agency's expense.

Job Benefits and Protection

• Upon return from FMLA leave, an employee must be returned to the same position or to an "equivalent position with equivalent benefits, pay, status, and other terms and conditions of employment."
• An employee who takes FMLA leave is entitled to maintain health benefits coverage. An employee on unpaid FMLA leave may pay the employee share of the premiums on a current basis or pay upon return to work.