|Subchapter 4630 - Absence and Leave
Section F - Family and Medical Leave Act (FMLA)
The Family and Medical Leave Act (FMLA) entitles eligible employees to a maximum of 12 administrative workweeks of unpaid leave during a 12-month period for certain serious health conditions or needs of an employee or his/her family. An employee may elect to substitute paid leave, as appropriate, for any leave without pay (LWOP) used under the FMLA.
Supervisors cannot use FMLA leave as a reason to deny employees opportunities for employment, promotions, training, awards, or participation in office activities.
Upon return from FMLA leave, an employee must be returned to the same position or an equivalent position at the same level in the organization and with equivalent duties, benefits, pay, status, and other terms and conditions of employment.
| Definition of Family Member
A family member means the following relatives of the employee:
|Eligibility||All employees are covered under the FMLA. However, employees must meet certain criteria in order to use FMLA leave:
If you need assistance in determining eligibility, contact your servicing personnel office (SPO).
|Conditions for Using FMLA Leave||The following table shows reasons for which FMLA leave may be used and the time limits for each:
An employee will take only the amount of FMLA leave needed to manage the circumstance requiring the leave.
|What is a Serious Health Condition?||
For the purposes of administering family and medical leave, a detailed description of "serious health condition" is provided in this block. A serious health condition is an illness, injury, impairment, or physical or mental condition that involves:
Continuing treatment by a health care provider may include one or more of the following:
Allergies, restorative dental or plastic surgery after an injury, removal of cancerous growth, or mental illness resulting from stress may be serious health conditions, but only if such conditions require inpatient care or continuing treatment by a health care provider.
Serious health condition does not include:
| Applying for FMLA Leave
||An employee must specifically ask for FMLA leave on their application for leave. The following table states the procedure for applying for FMLA leave:
| Medical Certification
Employees are required to obtain medical certification from the physician or practitioner supporting the need for FMLA leave. Use the appropriate version of the U.S. Department of Labor Form WH-380, or equivalent document may be used for this purpose. The form, which can be locally reproduced, is provided at the beginning of this Subchapter.
The following table gives specific requirements regarding medical certification:
A second or third medical certification for the employee or the family member may be requested, at the Agency's expense, from a different health care provider if the supervisor doubts the validity of the original medical certification. The opinion of the third health care provider is considered final. If you need guidance in this matter, contact your servicing employee relations specialist (ERS).
For leave taken for pregnancy, chronic conditions, or long-term conditions under the continuing supervision of a health care provider, subsequent medical recertification may be required at agency expense, on a periodic basis, but not more than every 30 calendar days. For leave taken for all other serious health conditions (including intermittent or reduced leave schedules) if the health provider has specified on the medical certification a minimum duration of the period of incapacity, recertification may not be requested until that period has passed.
To require medical certification more frequently than every 30 calendar days or than the minimum duration, the employee must have requested that the original leave period be extended, the original circumstances described must have changed significantly, or the agency must have received information that caused doubt on the continuing validity of the medical certification.
| Responsibilities of Supervisors
||The following table lists responsibilities of supervisors administering leave under the FMLA. Contact your servicing leave specialist or ERS for assistance in any of these matters.
Note: Because of the cost to the agency, contact your servicing ERS for guidance before requesting second/third medical opinions and recertifications.
| Calculating FMLA Entitlements
A total of 12 administrative workweeks will be made available to full-time and part-time employees. The exact number of hours of leave employees are entitled to under the FMLA is in direct proportion to the number of hours in their regularly scheduled administrative workweek.
The 12 administrative workweeks of leave will be calculated on an hourly basis and will be equal to 12 times the average number of hours in the employee's regularly scheduled administrative workweek.
If the number of hours in an employee's workweek varies from week to week, a weekly average of the hours scheduled over the 12 weeks prior to the date the leave begins will be used as the basis for this calculation.
Employees should be advised of the number of hours of FMLA entitlement at the time it is requested.
If the number of hours in an employee's regularly scheduled administrative workweek is changed during the 12-month period of FMLA leave, the employee's entitlement to any remaining FMLA leave will be recalculated based on the number of hours in the employee's current regularly scheduled administrative workweek.
Employees will schedule and use FMLA leave during a 12-month period. (Refer to the "Conditions for Using FMLA Leave" table). The 12-month period begins on the date the employee first takes FMLA leave and continues for 12 months. When the 12-month period expires, another 12-month period begins.
An employee is not entitled to 12 additional workweeks of leave until the previous 12-month period ends and a situation occurs that entitles the employee to another period of FMLA leave. (This may include a continuation of the previous situation.) Unused FMLA leave from one 12-month period may not be carried over into the next 12-month period.
|Continuous and Intermittent Use of FMLA Leave||
FMLA leave may be used continuously or intermittently. Intermittent leave means leave taken in separate blocks of time, rather than for one continuous period of time, and may include leave periods of less than 1 hour to several weeks. This may be applicable if there is more than one situation in which an employee is entitled to FMLA leave, or for ongoing medical treatment and he/she has not exhausted the amount available for the 12-month period.
Example: Continuous Use of FMLA Leave
Employee goes on leave from January 1 through
Example: Intermittent Use of FMLA Leave
A full-time employee splits the 12-week leave entitlement into segments:
In this example, as of September 8, the employee has exhausted his/her entitlement of 480 hours for that 12-month period.
Another way an employee can use FMLA leave intermittently is to reduce the work schedule. A reduced work schedule is one where the employee continues to work, but the number of hours regularly worked per workday or workweek is reduced by using amounts of FMLA leave intermittently.
Example: A full-time employee with a regular work schedule of 40 hours per workweek (five 8-hour days) is entitled to 480 hours of FMLA leave.
The employee reduces 3 days of each workweek from 8-hour workdays to 4-hour workdays by using 4 hours of FMLA leave each of the days (or 12 hours of FMLA leave per week). The employee can do this for 40 weeks, until the 480 hours of FMLA leave are exhausted (480 divided by 12 = 40).
Example: A part-time employee with a regular work schedule of 32 hours per workweek (four 8-hour days) is entitled to 384 hours of FMLA leave.
The employee reduces each workweek by one workday, by using 8 hours of FMLA leave per week. The employee can do this for 48 weeks, until the 384 hours of FMLA leave are exhausted (384 divided by 8 = 48).
|Substitution of Paid Leave||
Although the FMLA entitles employees to 12 weeks of unpaid leave, employees can request to substitute paid leave (i.e., sick leave, annual leave, or advance annual or sick leave) instead of LWOP, but supervisors may not require them to do so. At the time the FMLA leave is initially requested, supervisors should remind employees of this option. Employees must indicate their preference when FMLA leave is initially requested. Employees may not substitute paid time off for LWOP retroactively.
Note: Because compensatory time and credit hours are forms of pay, not leave, they may not be used as part of an FMLA period. Compensatory time and credit hours may be used only before the FMLA entitlement is invoked or after the entitlement period expires.
The maximum amount of FMLA leave to which an employee is entitled in any 12-month period is 12 administrative workweeks, regardless of the type(s) of leave the employee wishes to use. This does not change further entitlement to other annual leave, sick leave, or LWOP that is not requested under the FMLA if the supervisor would have approved such leave.
|Use of Sick Leave||If sick leave is used as part of the FMLA entitlement, it must be consistent with the conditions for use of sick leave and the amount of sick leave that may be granted as stated in Section C , Sick Leave.|
|Using One Type of Leave||
Employees have the option of using one type of leave exclusively throughout the entire period of FMLA leave.
Example: The employee uses only LWOP for the entire 12 administrative workweeks of leave from July 1 through September 30.
|Combining Two or More Types of Leave||
Employees also can request that paid leave be substituted for LWOP.
Examples: Employee combines two or more of the following: sick leave, annual leave, and LWOP throughout the duration of the FMLA leave.
|Effect of LWOP on Benefits and Service Credit||Refer to Section E , Nonpay Status, for information on how benefits and service credit may be affected by an FMLA absence involving LWOP.|
|Impact of the FMLA on Other Types of Leave Assistance||
The FMLA has no impact on the rules for granting advance sick or annual leave. Annual leave may still be advanced up to the amount that would be earned during that leave year. In some circumstances, up to 240 hours of sick leave may be advanced to an employee for his/her medical condition.
Also, an employee may be eligible to apply for the Voluntary Leave Transfer Program if his/her situation meets the criteria for a personal emergency, or the medical emergency of a family member.
The agency will comply with any collective bargaining agreement or any agency employment benefit program or plan that provides greater family or medical leave entitlements to employees than those provided under the FMLA.
The entitlements established for employees under the FMLA may not be diminished by any collective bargaining agreement or any employment benefit program or plan.
|Denial of FMLA||Employees can grieve denial of FMLA leave. Employees in bargaining units must use the negotiated grievance procedure; other employees must use the administrative grievance procedure. Contact your servicing ERS for guidance.|
| Adverse Actions
||An employee's decision to invoke FMLA does not prevent an agency from taking performance-based actions or disciplinary actions against that employee. FMLA does not make an employee immune from the impacts of a reduction-in-force before, during, or after a period of FMLA leave. Prior to taking an adverse action, supervisors must contact the servicing Employee Relations Specialist to determine if FMLA obligations exist.|
|Return to Work Certification||
A program may establish a uniformly applied practice or policy that covers all similarly-situated employees to obtain medical return to work certification from the health care provider. The agency assumes the responsibility to pay for the expenses of obtaining such documentation since the request is at the agency's discretion and direction. The program cannot require a second or third opinion for return to work certification.
Before establishing any practices or policies, programs should contact their servicing ERS. Programs must notify employees of any policy before leave begins (or as soon as possible in emergency medical situations).
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