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Unpaid Leave Under the Family and Medical Leave Act

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Purpose

This Section covers Title II of the Family and Medical Leave Act (FMLA) of 1993, Public Law 103-3 ("the Act"). The FMLA is intended to promote the interests of the workplace and the family by providing unpaid leave with job protection to employees in certain specified instances so that they may address their own health needs or the needs of children or seriously ill or injured family members who require emotional, medical, and other types of support. FMLA leave differs from LWOP in that an employee who establishes eligibility may not be denied FMLA leave. It is a positive entitlement.

Eligibility

All employees who have completed 12 months of Federal government service, regardless of appointment or pay schedule, are eligible. The service need not be recent or consecutive or in a position subject to the Leave Act. Certain employees covered by Title I of the Act, e.g., unscheduled employees, Commissioned officers of the NOAA Corps, and Presidential appointees whose rate of basic pay is equal to or exceeds Executive Level V are also eligible.

Entitlement

Employees are entitled to 12 administrative weeks of unpaid leave in any 12-month period for one or more of the following: (1) birth of a child and care of the newborn, (2) adoption or placement of a child for foster care, (3) care of a family member with a serious health condition or (4) care and treatment for a personal serious health condition that makes the employee unable to perform any one or more of the essential functions of his or her position. Part-time and mixed tour employees have a prorated entitlement equal to 12 times the average number of hours in their regularly scheduled administrative workweek. Note that an employee working two part-time positions may use only the amount of FMLA leave earned in each part-time position for absences from that position.

When an employee's schedule is not fixed, FMLA entitlement will be based on an average of the hours worked each workweek for the 12 weeks prior to the period for which FMLA leave is requested.

When an employee's regularly scheduled administrative workweek is changed during the 12-month period of FMLA, the entitlement is recalculated based on the new work schedule. For example, a part-time employee working a 30-hour workweek is normally eligible for 360 hours of FMLA leave. If the employee has already used 300 hours under the part-time schedule, the employee has 60 hours or 2 weeks remaining to use. When the employee moves to a full time work schedule (40 hours per week), the employee would have 80 hours or 2 weeks remaining to use.

When FMLA leave is taken intermittently or on a reduced schedule, only the amount of leave taken is to be subtracted from the total of 12 weeks of FMLA available to the employee.

Retroactive Entitlement. Generally, an employee may not retroactively invoke his or her entitlement to FMLA leave for a previous absence from work. However, if an employee and his or 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 for an FMLA-qualifying purpose, the employee may retroactively invoke his or her entitlement to FMLA leave within two (2) workdays after returning to work. In such cases, the employee's incapacity must be documented by a written medical certification from a health care provider. In addition, the employee must provide documentation acceptable to the supervisor explaining the inability of his or her personal representative to contact the agency and invoke the employee's entitlement to FMLA leave during the entire period in which the employee was absent from work for an FMLA-qualifying purpose.

Birth, Adoption, or Placement of a Foster Child. When used in conjunction with the birth, adoption or placement of a child, FMLA leave will normally be taken as 12 continuous weeks of leave. However, with supervisory approval, it may be taken intermittently according to a schedule mutually agreed upon by the employee and supervisor. Leave for birth, adoption or placement of a child may begin prior to or in advance of the event. Both parents have an equal nontransferable entitlement to leave for this purpose. Supervisors may require administratively acceptable documentation to support the employee's entitlement to leave under this heading. This may include the certification of a health care provider, legal adoption papers, court documents, agreements on letterhead of administrative bodies of the state relative to placement of a foster child, requirements of an adoption agency on agency letterhead, time billed by attorneys, etc.

Family or Personal Medical Leave. An employee may take FMLA leave intermittently or work a reduced schedule when caring for a family member who has a serious health condition or when seeking treatment for a serious personal health condition.

Family member means the son, daughter, spouse, or parent of the employee.

Reduced schedule means that an employee works less than his or her full-time tour, the balance of the tour being made up by leave without pay under FMLA or by substituted paid leave.

Incapacity means the inability to work, attend school, or perform regular daily activities (eating, washing, walking, shopping, etc.,) because of a serious health condition or treatment for or recovery from a serious health condition.

Serious health condition means an illness, injury, impairment, or physical or mental condition which requires:

  • Overnight hospitalization (including prenatal care), including the period of incapacity or subsequent treatment in connection with the overnight care; or
  • Continuing treatment (for a chronic or long-term condition) under the care or supervision of a health care provider. Included under this heading are chronic conditions (e.g., asthma, epilepsy, etc.) that continue over an extended period of time and may cause episodic rather than a continuing period of incapacity and conditions that are not usually incapacitating but would result in a period of incapacity of more than 3 consecutive calendar days if medical treatment were omitted (e.g., chemotherapy, kidney dialysis, pregnancy, etc.).

If supported by certification of a health care provider, FMLA leave taken for a chronic serious health condition or a condition for which treatment may not be effective, may be taken as a continuous block of time. The diagnosis, prognosis, and course of treatment prescribed by the health care provider will determine the way the employee and his or her supervisor approach FMLA leave and the employee's work schedule.

NOTE: Alzheimers disease; chronic back conditions; cancer; diabetes; nervous disorders; severe depression; pregnancy or its complications, including severe morning sickness and prenatal care; treatment for substance abuse, multiple sclerosis; very serious surgery and recovery; emphysema; severe arthritis; pneumonia; and severe injuries on or off the job are within the definition of "serious health condition". Not covered, are short-term illnesses which are treatable with a few days absence, and allergies, dental, cosmetic or elective surgery unless they require overnight care or continuing treatment by a health care provider (i.e., where incapacity is be for more than three calendar days and there is a visit to a health care provider followed by a regimen of care). Sick leave is appropriate in these instances.

Alternative position. When an employee uses FMLA leave intermittently or works a reduced schedule, a supervisor may find it beneficial to detail that employee to an alternative position until he or she has exhausted his or her entitlement or no longer needs such accommodation. An alternative position need not consist of equivalent duties, but must be equal in every respect of qualifications, pay and benefits, schedule, tenure, and appointment, etc., to the employee's permanent position, but which may be less physically taxing or require less meet and deal contact. The feasibility of an alternative position is a determination that is properly the supervisor's; however, the employee may request such consideration. The employee is entitled to any job accommodation that could be made under the Pregnancy Anti-discrimination Act and laws for the physically challenged, e.g., the Rehabilitation Act of 1973. In any case, an employee may only be detailed to an alternative position. FMLA protects the return right of the employee to the position of record.

End of Entitlement

An employee's entitlement to FMLA leave ends when he or she has exhausted 12 weeks of FMLA leave following the date of invocation but not later than 12 months after first invocation, whichever is sooner.

An employee's right to invoke FMLA leave for birth or placement of a child ends 12 calendar months from the date of first taking leave and not later than 12 calendar months after the date of birth or placement of the child, whichever is sooner. The employee must exhaust his or her entitlement within these timeframes or lose it.

An employee who does not use his or her entire 12 weeks of FMLA leave in conjunction with one event is entitled to use the balance of it for a second event in the same 12-month period.

A new entitlement period begins 12 months from the date FMLA leave was first invoked.

Note: Holidays and other nonworkdays established by Federal statute, Executive Order, or administrative order that occur during the period in which the employee is on FMLA leave may not be counted toward the 12-week entitlement to FMLA leave.

Employee Notice

An employee who invokes entitlement to FMLA leave for any reason must provide 30 days notice of intent or as much notice as possible given the circumstances. Failure to provide notice (if the need was foreseeable) is basis for at least 30 days postponement of the start of leave unless the employee can provide an explanation which is acceptable to the supervisor. An employee who does not comply with the notice requirement or does not provide acceptable medical certification signed by the health care provider is not entitled to FMLA leave. The employer may not put an employee on FMLA leave and may not subtract leave from an employee's entitlement to FMLA leave unless the employer has obtained confirmation from the employee of his or her intent to invoke entitlement to FMLA leave.

Applying for FMLA Leave

Employees who wish to invoke entitlement to FMLA leave must complete a complete a leave request via the Leave/Premium Pay Request function in webTA or by submission of an Office of Personnel Management (OPM) Form 71, Request for Leave or Approved Absence (or the SF-71, Application for Leave, if excess copies are being used). No part of an employee's 12 week entitlement under FMLA may be deducted unless the employee has completed this form. Employees who use FMLA leave intermittently or on reduced schedule must complete a new request every time FMLA leave is used. Supervisors are responsible for ensuring that copies of the requests are forwarded to the HRO for reporting purposes."

Notification of FMLA Entitlements

Operating units must provide, on an annual basis, notification to employees of their entitlements and responsibilities under the FMLA.

Medical Certification

Requiring Medical Certification. Supervisors may, at their discretion, require that the leave request be supported by written medical certification from a health care provider. When requested, an employee must provide acceptable, written medical certification, signed by the health care provider, no later than 15 calendar days after the date the supervisor requests such certification. If, despite the employee's diligent, good faith efforts, it is not possible for the employee to provide the requested certification within 15 calendar days of the supervisor's request, the employee must provide the medical certification within a reasonable period of time under the circumstances involved, but no later than 30 calendar days after the date the supervisor requests the medical certification.

Health Care Provider. "Health care provider" includes a licensed doctor of medicine or osteopathy; other persons providing health services, if recognized by the Federal Employees Health Benefits Program (FEHBP) or who is licensed or certified under Federal or State law, including practitioners outside of the United States authorized to practice in accordance with the laws of that country; Church of Christ practitioners, if listed with the Church of Christ Scientist in Boston; and Native Americans including an Eskimo, Aleut, and Native Hawaiian recognized as "traditional healing practitioners." A supervisor who wants such certification may request a Physician's Certification form for this purpose from the HRO.

Certification Statement. The content of the health care provider's certification statement should include the dates the health care condition began, its likely duration, and a brief description of the condition. If an employee applies for FMLA leave to care for a family member who is unable to maintain his or her hygiene, nutrition, transportation or medical needs without substantial support, the health care provider should be asked to certify to the family member's inability to perform the necessary tasks of living and the need for the employee to provide support, including emotional support. The health care provider should also be asked to indicate the schedule of treatment and the requirement for the employee's time so that work can be planned with this information in mind. If the employee's own medical situation is the basis for the leave, the health care provider should be asked to certify to the employee's being unable to perform one or more of the essential functions of his or her position. A summary of the employee's duties can be provided with the request for certification to assist in this determination.

Second and Third Certifications. In the event that the certification of the employee's health care provider raises questions, the supervisor has the right to require a second opinion and to choose the health care provider from whom the second certification is to come except that this health care provider may not be employed by the agency or under contract supervised by the Department. If this certification results in a split decision, a supervisor may require a third certification. The employee and the supervisor must jointly select the third health care provider. The certification of the third health care provider will be binding. The agency shall be responsible for the costs incurred in obtaining the second and third certifications.

Recertification. An employee, or the employee's family member must submit to any examination (not treatment) required for medical certification or the employee's application for FMLA leave may be denied. For FMLA leave taken for the purposes of pregnancy, chronic conditions, or long-term conditions under the continuing supervision of a health care provider, the supervisor may, at the agency's expense, require subsequent medical recertification on a periodic basis, but not more than once every 30 calendar days. For FMLA leave taken for all other serious health conditions, including leave taken on an intermittent or reduced leave basis, if the medical certification specifies a minimum duration for the period of incapacity, recertification may not be requested until that period has passed. The agency shall be responsible for the costs incurred in obtaining medical recertification. At the supervisor's discretion, an employee may also be required to report on his or her status and intentions to return to work at reasonable intervals and in intervals of less than 30 days if the leave period is extended, or, if circumstances change appreciably, after the initial certification.

Certification on Return to Work. If the duties of a position are subject to physical qualification requirements or covered by medical standards, an employee who invokes FMLA leave for serious medical condition or injury may be asked to provide medical certification before returning to work. A health care provider may not be asked to certify the employee's ability to meet any physical qualification or medical standard not directly related to the job. The employee's failure to provide the necessary certification may result in adverse action.

Relation to Other Leave

FMLA leave is in addition to accrued annual and sick leave, advanced annual and sick leave, regular leave without pay, donated leave, credit hours, and compensatory time off available to the employee. An employee who invokes FMLA leave after using other forms of leave has potential for another 12 weeks absence from the workplace. It is important that supervisors remember that they have discretion in approving or disapproving most other forms of leave. FMLA leave, on the other hand, is an employee entitlement. If supported by certification of a health care provider, it may not be denied. Without being coercive, supervisors must inform employees of their entitlements under FMLA before approving requests for other forms of leave in conjunction with serious illness.

"Stacking" of Leave

An employee may request to take FMLA leave in combination with any other available leave or compensatory time off. Communication between supervisors and employees is key to managing the "stacking" of leave. When an employee requests leave for a personal or family medical situation, the supervisor may want to ask up front whether the employee is invoking entitlement to FMLA leave. Although a supervisor generally cannot deny sick leave if the employee provides medical certification, he or she can deny annual leave or leave without pay if there is a need for the employee to be at work. While the taking of accrued annual leave is a right of the employee, it is the supervisor's responsibility to approve the scheduling of annual leave. If an employee requests leave for any of the four FMLA-qualifying purposes, the supervisor may ask whether the employee is invoking his or her entitlement to FMLA leave. If the employee invokes entitlement to FMLA leave, he or she may choose to substitute annual leave or sick leave, as appropriate, for leave without pay under the FMLA.

Substitution of Paid Leave

Accrued annual or sick leave, advanced annual or sick leave, or donated annual leave may be substituted for a period of unpaid leave under FMLA if the employee elects it, has the time or leave available, and notifies the leave approving official of his or her intent to substitute paid leave prior to the date the paid leave begins. An employee may not retroactively substitute paid leave for LWOP previously taken as FMLA leave. The right to substitute paid leave for unpaid leave may neither be denied nor coerced. The authorization to substitute leave for unpaid leave under FMLA does not change any regulation pertaining to the use and administration of the leave which is being substituted. Specifically:

  • Sick leave for care of a family member who does not meet the definition of "spouse, son, daughter or parent," may only be substituted for unpaid leave under FMLA in the amounts and conditions that it is available to care for a family member or for bereavement normally (i.e., 104 hours for a full-time employee).
  • Sick leave for care of a spouse, son, daughter or parent may be substituted for unpaid leave under the FMLA in the amounts and conditions that it is available to care for a family member with a serious health condition (i.e., for a full time employee, 480 hours). Any amounts of sick leave used to provide general care of a family member or for bereavement in a year, must be deducted from the 480-hour entitlement.
  • Donated leave may not be substituted for unpaid leave under FMLA until the conditions for eligibility for use of donated leave have been met.

An employee's election to substitute paid leave must be made prior to the date FMLA leave is to begin and may only be made by completion of a leave request. When leave is substituted for unpaid leave under FMLA, the employee will be shown on paid leave, etc., for the period(s) for which substitution is being made and leave without pay for the remainder of FMLA leave. Substituted leave will be subtracted on an hour-by-hour basis from an employee's total entitlement under FMLA. Substitution of paid leave does not extend the employee's 12-week entitlement under FMLA, it simply allows the employee to invoke entitlement under the Act and be paid.

Benefits

No benefit accrues to an employee under FMLA which would not accrue to the employee absent FMLA. Conversely, no benefit is lost to an employee while under FMLA which accrued to the employee before FMLA began.

Equivalent position. Specifically, an employee who has exhausted FMLA leave must be returned to the position occupied before leave began or to an equivalent position. An equivalent position offers the same pay, benefits, status, and other terms and conditions of employment, and requires the same skill, effort, responsibility and authority. The employee must retain any special salary rate or locality rate applicable to the position occupied before FMLA leave began. Appointment type; tenure; work schedule; commuting distance; and the potential for promotion, training, bonuses, awards, and premium pay must also be the same.

Health benefits coverage will continue while the employee is on FMLA leave although the employee must pay the employee's contribution. In lieu of payments on a biweekly basis while in a nonpay status, the employee can arrange with the HRO to make full payment on return from FMLA leave.

Retirement and life insurance coverage will continue while the employee is on FMLA leave. The employee is not obliged to make up any retirement contributions for the period of leave without pay but may arrange to do so through the HRO to ensure a maximum annuity. Life insurance coverage will cease only after the employee has been 365 days in a nonpay status.

Leave accrual reductions will continue while an employee is on LWOP under the FMLA when the employee amasses enough hours of absence in a nonpay status during a leave year to equal the number of base-pay hours in one pay period (e.g., 80 hours). The loss of leave accruals must be equal to the amount that is earned in one pay period at the employee's current annual leave accrual rate. All nonpay status, even when there is a break in service, must be considered when determining whether the leave accrual reduction applies (see 5 C.F.R. 630.408). Thus, FMLA nonpay hours used in a prior position are carried forward and counted in the new position.

WIG's. Eligibility for within-grade increases and time-in-grade will be affected by leave without pay as outlined in 5 C.F.R. 531.406 and 532.417, and Subpart F of Chapter 300.

Disability Retirement. An employee awaiting approval of his or her request for disability retirement is entitled to use his or her entitlement to FMLA, if he or she continues to meet the requirements and obligations of the FMLA.

Probationary Periods. Probationary employees who have previous Federal service to meet the 12-month eligibility requirements qualify for the FMLA. Any LWOP used under the FMLA is treated the same as any other LWOP for purposes of service credit to fulfill a probationary period. A total of 22 workdays in a non-pay status is creditable service during the probationary period. Any amounts past the 22 workdays extends the probationary period.

Updated October 2006.




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