HRDG 4630 - Absence and Leave - Section F - Subsection a

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.

A family member means the following relatives of the employee:

• A spouse is a partner in any legally recognized marriage, regardless of the employee’s state of residency. A same-sex spouse will be considered a "spouse" for FMLA purposes if the marriage was valid where and when it was entered into, i.e., "celebrated," regardless of where the employee resides. This includes in the definition of "spouse" those individuals in legally recognized same-sex marriages, common law marriages, and marriages that were validly entered into outside of the United States. This does not, however, change the supervisor’s ability to require employees who take FMLA leave to provide reasonable documentation confirming the existence of a familial relationship, including a copy of a marriage license or a court document, or a simple statement asserting that the requisite familial relationship exists. (See S. Brammer, Assistant General Counsel, OGC –USDA, email dated March 10, 2015.)
• A son or daughter (a biological, adopted or foster child; a step child; a legal ward; or a child of a person standing in loco parentis who is:
  • Under 18 years of age, or
  • 18 years of age or older and incapable of self-care because of a mental or physical disability. A son or daughter incapable of self-care requires active assistance or supervision to provide daily self-care in three or more of the "activities of daily living" [ADLs] or "instrumental activities of daily living "[IADLs]. ADLs including adaptive activities such as caring appropriately for one's grooming and hygiene, bathing, dressing, and eating. IADLs include cooking, cleaning, shopping, taking public transportation, paying bills; maintaining a residence, using the telephone and directories, using a post office, etc. A "physical or mental disability" refers to physical or mental impairment that substantially limits one or more of the major life activities of an individual as defined in 29 CFR 1630.2 [h], [i], and [j].
• A parent (a biological parent or an individual who stands or stood in loco parentis to an employee when the employee was a son or daughter. This term does not include parents "in law").

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).

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.

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:

• Inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical care facility, including any period of incapacity or any subsequent treatment in connection with the inpatient care; or
• Continuing treatment by a health care provider that includes, but is not limited to, examinations to determine if there is a serious health condition, and evaluations of such conditions if the examinations or evaluations determine that a serious health condition exists.

Continuing treatment by a health care provider may include one or more of the following:

• A period of incapacity of more than 3 consecutive calendar days, including any subsequent treatment or period of incapacity relating to the same condition, that also involves:
  • Treatment two or more times by a health care provider, by a health care provider under the direct supervision of the affected individual's health care provider, or by a provider of health care services under the orders of, or on referral by, a health care provider; or
  • Treatment by a health care provider on at least one occasion which results in a regimen of continuing treatment under the supervision of the health care provider (e.g., a course of prescription medication or therapy requiring special equipment to resolve or alleviate the health condition).
• Any period of incapacity due to pregnancy, or for prenatal care, even if the affected individual does not receive active treatment from a health care provider during the period of incapacity or the period of incapacity does not last more than 3 consecutive calendar days.
• Any period of incapacity or treatment for such incapacity due to a chronic serious health condition that:
  • Requires periodic visits for treatment by a health care provider or by a health care provider under the direct supervision of the affected individual's health care provider;
  • Continues over an extended period of time (including recurring episodes of a single underlying condition); and
  • May cause episodic rather than a continuing period of incapacity (e.g., asthma, diabetes, epilepsy, etc.). The condition is covered even if the affected individual does not receive active treatment from a health care provider during the period of incapacity or the period of incapacity does not last more than 3 consecutive days.
• A period of incapacity which is permanent or long-term due to a condition for which treatment may not be effective (e.g., Alzheimer's, severe stroke, or terminal stages of a disease). The affected individual must be under the continuing supervision of, but need not be receiving active treatment by, a health care provider.
• Any period of absence to receive multiple treatments (including any period of recovery) by a health care provider or by a provider of health care services under orders of, or on referral by, a health care provider, either for restorative surgery after an accident or other injury or for a condition that would likely result in a period of incapacity of more than 3 consecutive calendar days in the absence of medical intervention or treatment (e.g., chemotherapy/radiation for cancer, physical therapy for severe arthritis, dialysis for kidney disease).

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:

• Routine physical, eye, or dental examinations;
• A regimen of continuing treatment that includes the taking of over-the-counter medications, bedrest, exercise, and other similar activities that can be initiated without a visit to the health care provider;
• A condition for which cosmetic treatments are administered, unless inpatient hospital care is required or unless complications develop;
• An absence because of an employee's use of an illegal substance, unless the employee is receiving treatment for substance abuse by a health care provider or by a provider of health care services on referral by a health care provider; or
• The common cold, flu, earaches, upset stomach, minor ulcers, headaches (other than migraines), routine dental or orthodontia problems, and periodontal disease, unless complications arise.

An employee must specifically ask for FMLA leave on their application for leave. The following table states the procedure for applying for FMLA leave:

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:

Note: If leave will be taken intermittently or on a reduced leave schedule, the certification also must include a schedule of those dates on which such leave will be taken.

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.

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.

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.

FMLA leave is only charged on days an employee would be in a duty status. FMLA leave cannot be charged for existing holidays, holidays established by Executive Order, nonworkdays or an administrative order.

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.

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
March 31, using 12 administrative workweeks of leave.

Example: Intermittent Use of FMLA Leave

A full-time employee splits the 12-week leave entitlement into segments:

• Jan 1 - Jan 22 (using 3 wks/120 hours),
• May 1 - June 30 (using 8 wks/320 hours), and
• Sept 1 - Sept 8 (using 1 wk/40 hours).

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).

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.

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.

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.

• Sick leave from Dec 1 - Dec 31 and LWOP from Jan 1 - Feb 28.
• LWOP and annual leave alternated every other week for 6 weeks followed by 6 weeks of sick leave.

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.

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).