Get answers to your most common FMLA questions from an expert. Host Amber Clayton and Helen Applewhaite, Director, Division of FMLA and Other Labor Standards, U.S. Department of Labor, Wage and Hour Division, discuss what scenarios qualify for FMLA, certification requirements, how to stay in compliance with FMLA, and pitfalls to avoid.
Get answers to your most common FMLA questions from an expert. Host Amber Clayton and Helen Applewhaite, Director, Division of FMLA and Other Labor Standards, U.S. Department of Labor, Wage and Hour Division, discuss what scenarios qualify for FMLA, certification requirements, how to stay in compliance with FMLA, and pitfalls to avoid.
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Monique Akanbi: Welcome to Honest HR, the podcast for informed and aspiring HR professionals intent on transforming workplace challenges into golden opportunities. Every week we chat with industry experts to bring you insights, trends, and actionable advice through relatable stories from the real world of HR.
Wendy Fong: Honest HR is a SHRM podcast and by listening, you're helping to build a more engaged workforce and drive organizational success. I'm Wendy Fong.
Amber Clayton: I'm Amber Clayton.
Monique Akanbi: And I'm Monique Akanbi.
Altogether: Now let's get honest.
Amber Clayton: Hello everyone and welcome back. I'm Amber Clayton, Senior Director of Knowledge Center Operations here at SHRM. Today's topic is one we hear about pretty frequently in SHRM's Knowledge Center, aka the Ask an Advisor Service, FMLA, the Family Medical Leave Act. FMLA requires employers with 50 employees or more to offer unpaid job protected leave for medical related reasons, including a family member in the military, who is injured or needs care, and for other military related exigencies. For this episode, we have turned to the most authoritative source on FMLA, the Department of Labor, the agency that enforces the FMLA. I'm pleased to be joined today by Helen Applewhaite, the Director of the Division of FMLA and Other Labor Standards with the U.S. Department of Labor's Office of Policy, Wage and Hour Division. Welcome to the show, Helen.
Helen Applewhai...: Thank you Amber. I'm so happy to be here.
Amber Clayton: Well, we are happy to have you. So Helen, could you share a little bit with our audience about your background?
Helen Applewhai...: Sure, Amber. I am a longtime wage and hour person. I started as an investigator. We are an enforcement agency and I started as an investigator at a small two person field station in Beckley, West Virginia way back in 1994. I've worked at all different levels within the agency. But I've been with the Office of Policy in our Washington DC office, working specifically specifically on FMLA policy issues for more than 25 years now. And I really love the work that I do.
Amber Clayton: Wonderful. Well, I tell you, you have your work cut out for you. We get about 50,000 to 60,000 inquiries a year, and like I said, FMLA is one of our top three inquiries that we get in the Knowledge Center. And so we'll just go ahead and we'll jump into the topic. And I'm going to ask you some of the questions that we get asked by our members. We're not going to be able to take all the questions or answer all the questions today, but some of the frequent ones that we get we're going to touch on. And one of them is FMLA abuse. We get members who contact us, because they believe that their employees are abusing their protected leave. And when I say abusing, things like they're taking more absences or time off than what is already listed on their medical certification. So the employers are asking, "Can we ask for a doctor's note each time someone comes in absent, if it doesn't coincide with their certification?" So how might you answer that?
Helen Applewhai...: Sure, Amber, and that's a great question and one that we get all the time as well. But there's actually probably several topics embedded in that question. And so let me just start with the basics about medical certification. Employers can get medical certification, you can get the initial certification when an employee requests leave, and you can get recertifications of that initial certification. But there are very specific requirements under the regulations and under the statute of what you can do in regard to those certification requirements. So when you're looking at a recertification for a serious health condition, there are some instances where you can request the recertification.
There's a general principle that you can request the recertification no more often than every 30 days. But frankly, when you're looking at these ongoing lifetime type of conditions that require leave maybe throughout several years or for the whole lifetime, in those instances you can get recertification basically, no more often than every six months and only in connection with an absence. So to the question about, can I get a certification or a doctor's note each time the employee has an absence? No, you cannot. But you can get recertification, like I said, for the lifetime type condition.
You can get that once every six months only in connection with an absence in that six month period, with certain exceptions. You can get that recertification more frequently if the circumstances for the leave have changed significantly or the condition has changed significantly. So a couple of examples there, if you have for instance, someone with migraine headaches, who takes those certifications as they may need leave as a result of that condition, probably one day a month in that specific certification, that's an estimate of the frequency and duration. And we frequently do see questions around this topic. If the employee takes leave two days in a particular month, that's probably not a significant change allowing an additional certification.
But if you start to see that the employee, instead of taking two days of leave in a particular month or the one day that was originally certified, that they are taking regularly two days every month or three days some months or four days another month, that that might be a strong indication that something has changed significantly. And you could request recertification in that circumstance. You can't deny the leave, you can't require that the healthcare provider provides you with a specific number of days, for instance. It's still going to be an estimate.
But what you're doing in that instance, is asking for certification of these different circumstances. And you can in fact provide that healthcare provider with a pattern of the absences and ask if that's consistent with the condition. So there are some tools that you can use within that certification process to determine if it is in fact a valid FMLA leave. But you can't just automatically request a doctor's note, and you can't just deny the leave based on the fact that it exceeded the frequency and duration as estimated on that original certification.
Amber Clayton: Yeah, I appreciate you providing that clarification, because what we hear is, "What's considered significant change?" So I appreciate the clarification on that. And I always thought it was an awkward question, because can you imagine having to go to your doctor's office or to do a telehealth appointment and get a doctor's note every time something changes? That just seems overly burdensome, and maybe that's the intent of employers. They want to make it overly burdensome, so the person won't do that. But I always found that of interest, the fact that somebody would want to have doctor's notes each and every time there was something different. And [inaudible 00:07:35].
Helen Applewhai...: Oh, I'm sorry, Amber. There was just a couple of really important things that came to mind with that. Because one of the things you want to be really careful about as you're making these decisions, you want to be objective, and you want to make sure that you're staying really well within those guidelines and what is allowed and what is required, and that you're documenting what you're doing as a result of that. The idea in fact of, "It's FMLA abuse, if I take leave for an extra day in that particular month," is a little bit on the dangerous side in and of itself because it's not necessarily abuse.
It may be that, "My condition is not something that I can say. I'm not going for kidney dialysis and I know exactly when my appointment is. I have a condition that incapacitates me from time to time and sporadically." So it's not on a schedule unfortunately, and it's not necessarily always for the exact same length of time. So that's why it is an estimate of the frequency and duration. And remember, that there are protections in the FMLA from retaliation, from disciplining and employee because of their FMLA leave use. So it's a little bit of a dangerous path to get on. If the intent of getting certification is to discourage the use of FMLA leave, that in and of itself would be a violation of the FMLA.
Amber Clayton: No, that completely makes sense. So one of the things that we get asked is about the certification piece of it. And if an employee doesn't return the certification or they return the certification, one of the questions we get is, can an employer deny their FMLA leave? Or can an employee deny taking it? There are times where employees would prefer to just take their vacation time instead of having to fill out the FMLA certification. So those are again a couple of the questions that we get around this certification piece. Can you tell us a little bit more about that?
Helen Applewhai...: So the FMLA is a little bit of a balancing act. When it was enacted, it was designed to try to balance the legitimate interests of the employer with the needs of the employee related to those health concerns, both for the employee and for the family members. So it does allow certification as a part of that balancing act. It's not just on the employee's word that they have a condition or that they have this need for leave related to something that would qualify as a serious health condition under the FMLA. You do have that right to that tool to request certification. You're not required to do so as the employer. You can grant the leave without ever requesting certification, which is an important point to note that.
I'll give you a good example of that. You have an employee who's been a long-term employee. You get worried that they were in that car accident and they're in the hospital and you went to visit them in the hospital, and you've gotten information, you might immediately provide certification or provide the leave without the certification, because you have all of the information that is necessary to know that that is going to be FMLA qualifying. And in fact, the employer is required to designate leave as FMLA when you have enough information that it is FMLA qualifying. And that can be through the certification, but sometimes it can be when you have other information that you know, that the employee's pregnant and has a child calls you with the great news that they just gave birth and it's a wonderful, beautiful baby boy, again, that's FMLA qualifying.
You don't necessarily have to have certification for that. And in fact, we can talk about that later with regard to birth and bonding. But you do have enough information to know and you are required to designate the leave as FMLA qualifying and counted against the entitlement, and provide all of the protections that FMLA provides. Which includes the job restoration, continuation of group health insurance benefits that were provided. Those have to be ongoing. And being required to restore the employee to the same or virtually same position that they had when they get back from that leave. So there's some really important protections there. And it's also true that employees cannot waive their rights under the FMLA, so that pregnant employee who has the baby and calls with the great news, they may want to reserve their FMLA leave. But it is the employer's responsibility to designate it as FMLA leave and count it in those instances.
Same thing with that medical certification. Once you've gotten the certification, if you have sufficient information to know that it's FMLA qualifying, it's your responsibility as the employer to designate the lead, and notify the employee through all of their notification requirements of what their rights and responsibilities are, et cetera. But if the employee takes leave, then the certification is requested, you don't have enough information, you don't know that it is FMLA qualifying, then... Well, in fact, if you request the certification and the certification is never provided, you can then deny the leave. It's not protected. If you've requested certification, provided the notifications, there's not extenuating circumstances concerning the timing of providing that certification back to you, then in those instances you can deny the leave.
Amber Clayton: Just a follow-up question on that. You mentioned that employers don't need to necessarily ask for certification from them or provide certification. Is there a recommendation for the employer to document that FMLA leave that's being taken even if that certification is not completed?
Helen Applewhai...: Absolutely. There are several notification requirements and documentation requirements in the FMLA, including designation of leave. So your responsibility is to designate the leave as FMLA leave, and to notify the employee of that designation. So there are very specific requirements around that. And anytime that it is FMLA protected leave, you have to provide notification of the employee's eligibility status, as well as of their rights and responsibilities under the FMLA, including the continuation of group health insurance benefits, and if there's any need to continue payment of a premium during that time and how that will be handled. There are other factors within that specific notification, but yes, those notification requirements kick in. You have to designate it and you have to provide that information to the employee.
Amber Clayton: Thank you. So we actually get this question often too, is can we retroactively date the certification? So I'm an employer, this person's on leave, they've been on leave for two weeks, the manager didn't tell HR. And now, they want to retroactively date the certification going back two weeks. Can they do that?
Helen Applewhai...: You can retroactively designate the leave when you have that information and you know that it is FMLA protected leave. You couldn't change the certification itself. You would keep that just as it's presented, but you could retroactively designate the leave and notify the employee that it is in fact FMLA leave.
Amber Clayton: And that's of course, and correct me if I'm wrong, that there is no harm to the employee in doing so?
Helen Applewhai...: There's some limitations and some protections. And I guess I should preface a lot of what we're talking about when it comes to the FMLA, a lot of the answers are going to be it depends on the specific circumstances. So that's always a factor to take into consideration. But in the circumstances that you're talking about, where you have a certification that came in a little bit late, you didn't quite get that information, then yes, you could retroactively designate that. In other circumstances, there may be that need to specifically go back and look and address harm much more comprehensively than the example we were talking about.
Amber Clayton: Great, thank you. Another thing we hear is about performance issues that might be uncovered when an employee goes out on FMLA. So someone goes out, someone else is temporarily filling in for them, they discover that things were not being handled properly. What's the risk of disciplining or terminating someone at an FMLA for performance issues that they found while the person was on FMLA or that they had prior to and didn't have a chance to discuss it with them, because they went out on FMLA?
Helen Applewhai...: I think that there's some pretty high level of risk there. If you have an employee who has performance issues, then my recommendation is those are things that you deal with, that you deal with at the appropriate time and through your appropriate processes. And not have that be mixed into what's happening with your FMLA leave. Now, FMLA leave doesn't protect you from actions that would happen if your performance is not up to par. If you have other issues that are happening in the workplace that require discipline, FMLA is not an opportunity to get around those types of scenarios, and shouldn't be used as such. And employers certainly don't have to stop action that was already in place.
What's really dangerous here I think, is the concept of, "I didn't address anything with you. You went out on FMLA leave. And now suddenly, I'm presenting you with a disciplinary notice." That's going to be really hard to unpack from not being retaliatory for the FMLA leave itself or not being somehow related to that leave taking. And I think that would be very difficult to ensure that you're not letting that FMLA leave somehow factor into the discipline that you're contemplating.
Amber Clayton: No, that makes sense. We hear sometimes where an employer has had an employee who had performance issues, they completed disciplinary action, including sometimes termination, and then all of a sudden it's, "I need leave. I need FMLA leave. I have this serious medical condition." And now the employer wants to know, "Do I have to rescind that disciplinary action? Do I have to accept that they want to take FMLA leave if we had already terminated them?" You kind of answered that, but is there anything else that should be considered?
Helen Applewhai...: I think this is another area where it's going to be very fact specific on what's taking place in the timing of every aspect. I think the one thing that I would add to it, is you'd want to make sure that you've clearly documented what the issues are, that the disciplinary action is going to take place. You'd want to make sure that you've got a pretty good paper trail of what's happening there and that it's completely unrelated to the FMLA leave. Now, there are other circumstances where it may be that an employee who has had some performance issues, for example, also has a need for leave.
The fact that they've had performance issues should not be a factor in whether or not you're going to allow or deny the FMLA leave. Your ability to deny is based on whether it is or isn't qualifying, because it is an entitlement. So it's just really important to keep those two streams separate. Make your decisions concerning discipline based on your documentation and your processes and your rules around those issues. Make your decisions around FMLA based on the rules concerning FMLA and be sure that you're not letting one factor into the other.
Amber Clayton: All right. So when employees go out on leave and they return and they're supposed to reinstate the employee to the same or an equivalent position, one of the questions that we've had asked before is, "Does it have to be the same location?" And I don't believe in the regulations that I've seen, that location is part of that. It doesn't say, "I can return someone back to work, but make them work 30 miles at a different location." Can you tell us a little bit about that?
Helen Applewhai...: Sure. So the rule is, that you have to restore the employee to the same or an equivalent position. An equivalent is defined as virtually identical to the original position. And we do address in some of our sub-regulatory guidance materials especially, we address that issue of location. And most of the time, you're likely going to have to restore the employee to the same location, either the same shift or one that is almost the same, virtually the same, because otherwise, you're not going to meet that equivalent criteria. There could be some instances, where it is still virtually identical. Say, you are working on a very large campus and you're being restored to all of the same duties, the same level of pay, the same title, the same level of position, that they want you to now work in building A instead of building B on the same campus. That might be okay. But if you are being reassigned to a building that is 30 miles away, that's probably not going to be considered an identical or virtually identical position.
Amber Clayton: I mean, that makes sense of course, the longer drive, longer commute, more gas, it does cause some harm to the employee.
Helen Applewhai...: Right.
Amber Clayton: And that makes sense that an employer wouldn't be able to do that. So previously, you said something about certification and baby bonding. So I'm going to circle back on that and ask what type of certification, if any, can an employer ask if they're taking leave for baby bonding or for adoption? We've had members who have asked this, for the fathers of the children, they want to take that baby bonding leave. What can an employer ask for?
Helen Applewhai...: That's a great question too. And the basic answer is that you cannot get certification for the birth of a child for bonding purposes. You can request documentation of the family relationship, but even that, it can be just a simple statement from the employee that, "This is my child and I'm wanting to take leave for that child." Or, "I've just adopted a child." Now you can request... I want to be careful on how I say this, because a simple statement from the employee is sufficient documentation of relationship. If that is all they give you, that's all that is permitted. You can ask for a court document or a copy of a birth certificate, which then you could review and give back to the employee. But if all they provide is the simple statement of the relationship, that is sufficient for bonding purposes.
One of the things that gets a little confusing sometimes for people, is that for the mother giving birth, that could also be an FMLA serious health condition requiring leave for the employee's recovery from birth. And you could ask for medical certification related to the serious health condition, but not for the bonding purposes. And I want to mention as well, Amber, we have a number of really helpful resources on our website that address specifically maternal health issues. We have fact sheets that address certification and the notification requirements, and what is a serious health condition?
And a number of independent web pages that address all sorts of different aspects of the FMLA. And I would encourage our audience to check those out if you haven't already. They're actually some of the most popular web pages for the department. And you can get to them at www.dol, that's DOL for Department of Labor, dol.gov/agencies/whd. And from there you can go to the topics and just choose FMLA. And there's just a host of resources there, including frequently asked questions, that I think this is one of those questions in our frequently asked questions as well.
Amber Clayton: Thank you. And I can imagine that they're the most popular, because again, it's one of our top topics, so why wouldn't it be one of your top topics?
Helen Applewhai...: Absolutely.
Amber Clayton: So with that being said, is there anything that addresses this scenario? An employee is pregnant, and unfortunately they lose the baby and now they want FMLA for bereavement. Do the resources address that or can you address that with our audience?
Helen Applewhai...: I can address it. I'm trying to remember if we have a frequently asked question on that. But there are very limited circumstances that address anything that touches on bereavement specifically, under the FMLA. FMLA provides leave for serious health condition of the employee or the qualifying family member. And it provides also certain leave for military related reasons, including as you mentioned, the care of a covered service member with a serious injury or illness. And it also allows leave under the qualifying as exigencies requirements for foreign deployments for the family member. Under that provision, there is a category that allows leave for the recovery of a body and funeral and leave related to making funeral arrangements specifically, under the qualifying exigency provisions under military leave.
Under the FMLA generally though, there's nothing that's specifically addresses bereavement. Now keep in mind, if you're talking about the situation of losing a child, or any family member for that matter, there could be related issues, mental health conditions that arise as a result of that, that could require leave and be protected under the FMLA for that serious health condition. Onset of major depression can happen with the loss of the child. Obviously, there could also be issues related to physical issues for the mother as well, that might require leave under the serious health condition provisions. But those would all be under if there's something that meets serious health condition.
I really want to emphasize that the serious health condition can be mental as well as physical issues under the FMLA. And in fact, one of the things that we do have on our resources pages is a specific page that addresses mental health issues under the FMLA and taking leave related to those. So that's something that we were really happy to get some guidance out on recently, to make sure that there's resources that help you be able to talk to your employer about taking the leave, resources talking to the healthcare provider about what they need to do and providing certification. So there's a lot of resources that can help through that, but nothing that is going to be specifically just bereavement leave under the FMLA.
Amber Clayton: Okay, thank you. I will say, for our audience to check with your employer, because they may have a bereavement leave policy, that would also include when someone loses a baby through a miscarriage. So check with your employer, they could have state laws around that as well, or local laws.
Helen Applewhai...: Absolutely. And FMLA, you're always going to be subject to the higher protections. If the state law has protections that the FMLA doesn't cover, then they're going to absolutely apply in those states and vice versa. If there's a state that doesn't have protections, FMLA is still going to apply in those states. So it's really important to be aware of the other laws. Thank you.
Amber Clayton: Yeah, absolutely. So another question that we've gotten before, is someone wants to take FMLA leave, because they have a family member with a serious health condition. But that family member is in a hospital where there are other people that are taking care of that person. Would that employee qualify for FMLA leave if they're not the primary caregiver?
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