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Family Medical Leave (FMLA): FAQs

1. How much leave am I entitled to under FMLA?
2. Which employees are eligible to take FMLA leave?
3. What is a "rolling" 12-month period?
4. Do the 12 months of service with the employer have to be continuous or consecutive?
5. Do the 1,250 hours include paid leave time or other absences from work?
6. How do I determine if I have worked 1,250 hours in a 12-month period?
7. Are part-time or temporary/casual labor staff covered?
8. Does the law guarantee paid time off?
9. Does workers' compensation leave count against an employee's FMLA leave entitlement?
10. Can the employer count leave taken due to pregnancy complications against the 12 weeks of FMLA leave for the birth and care of my child?
11. Can an employee take 12 weeks of maternity leave and 12 weeks of sick leave in the same year?
12. Can I utilize accrued sick/vacation/PTO time to cover time away prior to starting my FMLA leave?
13. Can leave be taken to care for children of any age?
14. Can leave for childbirth or adoption be taken at any time?
15. May I use FMLA to care for my parent- in- law?
16. What does an employee have to show to prove that he or she is "needed to care for" a family member?
17. May I take FMLA leave for visits to a therapist, if my doctor prescribes the therapy?
18. What happens if the 30 days' notice is not provided?
19. Can my employer require me to return to work before I exhaust my leave?
20. When will FMLA not apply?
21. What happens if my "medical condition" is in question?
22. Can my department deny Family Medical Leave?

1: How much leave am I entitled to under FMLA?

If you are an "eligible" employee, you are entitled up to 12 weeks of leave for certain family and medical reasons during a rolling 12-month period. If eligible for Military Family Leave you are entitled to up to 26 weeks in a 12 month period.

2: Which employees are eligible to take FMLA leave?

Employees are eligible to take FMLA leave if they have worked for their employer for at least 12 months, and have worked for at least 1,250 hours over the previous 12 months.

3: What is a "rolling" 12-month period?

The rolling 12-month is measured backward beginning with the date an employee uses FMLA leave.

Example: An employee takes time away from work due to the birth of their child in May. The leave period lasts 12 weeks. In November, they are scheduled for surgery. Their leave request in November cannot be counted towards FMLA because they have already utilized their 12-week entitlement during their leave in May.

4: Do the 12 months of service with the employer have to be continuous or consecutive?

No. The 12 months do not have to be continuous or consecutive; all time worked for the employer is counted.

5: Do the 1,250 hours include paid leave time or other absences from work?

No. The 1,250 hours include only those hours actually worked for the employer. Paid leave such as vacation and PTO and unpaid leave, including FMLA leave, are not included.

6: How do I determine if I have worked 1,250 hours in a 12-month period?

Your individual record of hours worked would be used to determine whether 1,250 hours had been worked in the 12 months prior to the commencement of FMLA leave. You may consult with your payroll representative or supervisor. The following may be helpful for estimating whether eligibility has been met:

• 24 hours worked in each of the 52 weeks of the year; or
• Over 104 hours worked in each of the 12 months of the year; or
• 40 hours worked per week for more than 31 weeks (over seven months) of the year

7: Are part-time or temporary/casual labor staff members covered?

Both part-time and temporary staff members may be eligible for FMLA leave if they have accumulated 12 months of non-continuous service and meet the 1,250 minimum hours of service requirement.

8: Does the law guarantee paid time off?

No. The FMLA only requires unpaid leave. However, the law permits an employee to elect, or the employer to require the employee, to use accrued paid leave, such as vacation or sick leave, for some or all of the FMLA leave period. When paid leave is substituted for unpaid FMLA leave, it may be counted against the 12-week FMLA leave entitlement if the employee is properly notified of the designation when the leave begins.

9: Does workers' compensation leave count against an employee's FMLA leave entitlement?

Yes. FMLA leave and workers' compensation leave will run concurrently, provided the reason for the absence is due to a qualifying serious illness or injury. Staff members will be notified in writing that the leave will be counted as FMLA leave.

10: Can the employer count leave taken due to pregnancy complications against the 12 weeks of FMLA leave for the birth and care of my child?

Yes. An eligible employee is entitled to a total of 12 weeks of FMLA leave in a 12-month period. If the employee has to use some of that leave for another reason, including a difficult pregnancy, it may be counted as part of the 12-week FMLA leave entitlement. The beginning of the 12-week period starts counting from the first day the employee is absent, not from date of delivery.

11: Can an employee take 12 weeks of maternity leave and 12 weeks of sick leave in the same year?

No. A maximum of 12 weeks is available within a 12-month rolling period for all types of qualifying FMLA leave. If you have 3 reasons for taking FMLA, you will get a maximum of 12 weeks in a 12-month rolling period.

12: Can I utilize accrued sick/vacation/PTO time to cover time away prior to starting my FMLA leave?

Yes, it is not necessary to be on FMLA to use Vacation/Sick/PTO. However, if you are on FMLA, vacation/sick/PTO can be used to offset the loss of income.

13: Can leave be taken to care for children of any age?

No. FMLA leave is only available to care for a child under the age of 18 years of age or older with a disability where the child is unable to perform activities of daily living without assistance. An eligible employee covered by Military Family Leave can take the leave to care for spouse, son, daughter, parent, or next of kin.

14: Can leave for childbirth or adoption be taken at any time?

No. That leave must be taken within 12 months after the birth or placement for adoption or foster care. In many circumstances, however, the leave may start before the birth or placement for adoption, such as leave needed for pre-natal care or for home studies in connection with an adoption.

15: May I use FMLA to care for my parent- in- law?

No. Individuals cannot take FMLA leave to care for parents-in-law, grandparents, siblings, aunts, uncles, or other adults. Leave cannot be taken to care for nieces or nephews, or any other children, unless the employee has legal responsibility for those children.

16: What does an employee have to show to prove that he or she is "needed to care for" a family member?

The employee may be required to provide a medial certification that establishes that the employee is needed to care for the family member. The certification of Health Care Provider form is sufficient.

17: May I take FMLA leave for visits to a therapist, if my doctor prescribes the therapy?

Yes. FMLA permits you to take leave to receive "continuing treatment by a health care provider," which can include recurring absences for therapy treatments such as those ordered by a doctor for physical therapy after a hospital stay, or for treatment of severe arthritis.

18: What happens if the 30 days' notice is not provided?

Where leave is foreseeable and there is no reasonable excuse for not giving 30 days' notice, the employer can deny FMLA leave, and presumably apply its other policies, for up to 30 days after the notice is provided.

19: Can my department require me to return to work before I exhaust my leave?

Subject to certain limitations, your employer may deny the continuation of FMLA leave due to a serious health condition if you fail to fulfill any obligations to provide supporting medical certification. The employer may not, however, require you to return to work early by offering you a light duty assignment.

20: When will FMLA not apply?

The protections of FMLA will not cover situations where the reason for leave no longer exists, where the employee has not provided required notices or certifications, or where the employee has misrepresented the reason for leave.

21: What happens if my "medical condition" is in question?

You may be asked questions to confirm whether the leave needed or being taken qualifies for FMLA purposes. Youmay be required to submit periodic reports on your status and intent to return to work after leave. Also, if your department wishes to obtain another opinion, you may be required to obtain additional medical certification at the Duke's expense, or recertification during a period of FMLA leave. Duke may have a health care provider representing the employer contact your health care provider, with your permission, to clarify information in the medical certification or to confirm that the health care provider completed it.

22: Can my department deny Family Medical Leave?

Yes. The following reasons would apply:

• If you do not meet the eligibility requirements
• Employees who give unequivocal notice that they do not intend to return to work lose their entitlement to FMLA leave.
• Employees who are unable to return to work and have exhausted their 12 weeks of FMLA leave in the designated "12 month period" no longer have FMLA protections of leave or job restoration.

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