Under the Family and Medical Leave Act (FMLA), employers must grant eligible employees a total of up to twelve workweeks of job-protected, unpaid leave during any twelve-month period for any of the following reasons:

• the birth of a child;
• the adoption of a child or placement of a child for foster care;
• the employee’s own serious health condition where the condition makes the employee unable to perform their job; or
• the serious health condition of the employee’s spouse, child, or parent.

Administering leave under the FMLA requires knowledge of a complex set of rules. But there’s good news for department heads and supervisors: the human resources department (HR) is usually in charge of figuring out whether an employee should be on FMLA leave, how much leave the employee has left, and a dozen other concerns. Department heads and supervisors can instead concentrate on how an employee’s work will get done in their absence. Nevertheless, department heads and supervisors have an important role to play in ensuring that local government employers administer FMLA leave in compliance with the law. Here are four things department heads and supervisors need to do to keep their city, county or agency from violating the FMLA:

1. Let HR know right away whenever an employee is absent from work for more than three days.
2. Immediately relay any requests for FMLA leave or sick leave to HR. And, even if the FMLA is not mentioned, immediately let HR know when an employee requests permission to use accrued leave and indicates they need the leave for medical reasons or to care for a family member.
3. Ensure that HR is up-to-date on the essential job duties of any employee who may need FMLA need.
4. Regularly update HR about any positions and job duties for which a fit-for-duty certification should be required when an employee returns from a FMLA leave.

To understand why it is important that department heads and supervisors follow these four simple rules, keep reading.

Overview of FMLA Leave

During FMLA leave, employers must maintain an employee’s group health insurance benefits on the same basis as if the employee were reporting for work. When employees return to work after FMLA leave, they must be reinstated to the same position they held before FMLA leave or to a virtually identical position. The FMLA is enforced by the United States Department of Labor (US DOL).

To be eligible for FMLA leave, an employee:

• must have a total of at least twelve (12) months of service with the employer (although the twelve months need not be consecutive and the employee may have a break in service);
• must have worked at least 1,250 hours during the last consecutive 12 months; and
• must work at a worksite that has at least fifty (50) employees within a seventy-five (75) mile radius.

That last requirement means that North Carolina local government employers with fewer than fifty employees have no eligible employees and are not required to provide FMLA leave. For FMLA purposes, the number of employees a local government has is determined by counting how many employees (both full-time and part-time) an employer has on its payroll at any given time. A local government employer with fewer than 50 employees may choose voluntarily to adopt a policy extending family and medical leave to its employees under the same terms as provided by the Family and Medical Leave Act.

How Does FMLA Leave Get Initiated?

US DOL FMLA regulations require employees who know they will need FMLA leave (because they are expecting a baby, for example, or because they are having elective surgery) to give their employer notice of their need for FMLA leave 30 days in advance. Savvy employees may go straight to HR, but there is a good chance that some employees will go to their supervisor or department head instead. Suppose an employee – let’s call him Stan – says to his supervisor, “Hey, Mr. Jones. I’m going to be having a procedure done on my big toe next month and I’ll be out of work for two weeks.” What should that supervisor do? The supervisor should refer the employee to HR and then immediately contact HR and say that the employee has said that they will need FMLA leave, even if FMLA leave was never mentioned.

It is crucial that supervisors immediately tell HR that a subordinate has requested FMLA leave because the law requires employers to respond to a request for FMLA leave within five business days. Department heads and supervisors: You count as the “employer” in this situation. The five-day clock starts to run the minute the employee tells you that they are going to need FMLA leave.

HR will determine whether the employee is eligible for FMLA leave and, if so, HR will give the employee a Notice of Eligibility and of Rights and Responsibilities. HR departments can draft their own forms, but most use the one provided by US DOL.

What If an Employee Says That They Don’t Want FMLA Leave for This Absence?

An employee may wish to “save” their FMLA lave. They may know that they will need FMLA leave in a few months, perhaps for the birth of a child, perhaps for a planned medical procedure. It would not be unreasonable for an employee to want to “save” FMLA leave for that future need and use accrued paid leave or take unpaid leave now instead. But too bad for the employee. In a 2019 US DOL Opinion Letter, US DOL made clear that absences that qualify for FMLA leave must be designated as FMLA leave that counts against an employee’s annual twelve-week entitlement.

“[A]n employer is prohibited from delaying the designation of FMLA-qualifying leave as FMLA leave. Once an eligible employee communicates a need to take leave for an FMLA-qualifying reason, neither the employee nor the employer may decline FMLA protection for that leave. . . . Accordingly, when an employer determines that leave is for an FMLA-qualifying reason, the qualifying leave is FMLA-protected and counts toward the employee’s FMLA leave entitlement . . . . [T]he employer may not delay designating leave as FMLA-qualifying, even if the employee would prefer that the employer delay the designation.”

If leave qualifies for FMLA leave, it must be counted as FMLA leave.

Is the Leave Really Medically Necessary?

Maybe you are suspicious about Stan’s big toe “procedure.” His feet seem fine to you. You have never heard Stan complain about them. You wonder whether Stan really needs to be out of work for two entire weeks. The bad news is that the FMLA prohibits anyone in an employee’s supervisory chain of command from seeking out medical information about the employee’s condition and need for leave. The good news is that HR, or any one in an administrative position who is not in the supervisory chain, may do so. The FMLA prohibits HR from sharing that information with department heads and supervisors, but you can rest assured that Stan’s condition meets the FMLA definition of a “serious health condition” required for FMLA leave if that leave is approved by HR.

Serious Health Conditions

Here are the circumstances in which an employee’s medical condition or the condition of a family member qualifies as a “serious health condition.” The FMLA regulations define a serious health condition as “an illness, injury or impairment, or physical or mental condition” that involves any period of incapacity:

• requiring an absence of more than three calendar days from work that also involves continuing treatment by a health care provider;
• connected with inpatient care;
• due to pregnancy;
• due to a chronic health condition such as asthma, diabetes, epilepsy;
• that is long-term or permanent due to a condition for which treatment may not be effective (e.g., cancer; AIDS), or
• requiring multiple absences to receive multiple treatments (and to recover from the treatments) for a condition that would likely result in an incapacity for more than three consecutive days if left untreated (e.g., physical therapy, chemotherapy, dialysis).

Most FMLA leaves fall into the first three categories. For the FMLA, a “period of incapacity” means an inability to work, attend school or perform other regular daily activities due to the serious health condition, the treatment for it, or recovery. FMLA leave is not available for colds, stomach viruses, the flu or similar conditions unless they require inpatient care or continuing treatment by a healthcare provider. For more on serious health conditions, see my blog post here.

Medical Certifications of the Need for FMLA Leave

Does this employee’s condition qualify as a ‘serious health condition”? Employers may obtain the information they need by asking for a medical certification from the employee’s health care provider (or from the health care provider of the employee’s family member, where leave is requested to care for a family member with a serious health condition). The FMLA does not require employers to obtain a medical certification. It instead allows an employer to request certain information from the health care provider to verify that an employee or family member has a qualifying condition.

Medical certifications may ask for the following information:

1. the approximate date on which the serious health condition commenced, and how long it is likely to last;
2. a statement or description of medical facts regarding the health condition that is the reason for the FMLA leave request. The medical facts must be sufficient to support the need for leave. Such medical facts may include information on symptoms, diagnosis, hospitalization, doctor visits, medications prescribed, referrals for evaluation or treatment (physical therapy, for example), or other regimens of continuing treatment;
3. if the employee is the patient, information sufficient to establish that the employee cannot perform the essential functions of their job and how long that inability is likely to last; and
4. if the patient is a covered family member with a serious health condition, information sufficient to establish that the family member needs care and an estimate of the frequency and duration of the leave required to provide that care.

U.S. DOL has developed medical certification forms, one for employee use and one for leave to care for a family member. Most employers use them. Employers must give employees written notice of the need for a medical certification. Most employers use U.S. DOL’s Notice of Eligibility and of Rights and Responsibilities (Notice) for this, as it has a box to check if the employer is requiring a medical certification. The medical certification form is then attached to the Notice. The employee has fifteen calendar days in which to return the medical certification. If the employee does not return the certification within the 15-day window, the regulations permit employers to designate the leave as non-FMLA leave and the employee loses their right to return to employment at the end of the leave. Once the employee returns the medical certification form, the right to return is secured and the employer must designate the leave as job-protected FMLA leave in wiring. Most employers use U.S. DOL’s Designation Notice for that purpose.

The medical certification form allows (but does not require) employers to attach a list of the employee’s essential job functions. The employee’s healthcare provider must then explain how the employee’s condition makes them unable to perform one of those functions. Remember that one of the elements of the definition of a serious health condition is that makes an employee unable to work for more than three days. Department heads and supervisors should do their part in monitoring the use of FMLA leave by making sure that HR has a good understanding of the current functional requirements and essential job duties of their subordinates. Job responsibilities evolve and change over time.

As noted above, department heads and supervisors cannot see the completed medical certification form. The FMLA prohibits that. As the FMLA regulations instruct, “[s]upervisors and managers may be informed regarding necessary restrictions on the work or duties of an employee and necessary accommodations.” In other words, department heads and supervisors are not entitled to know all the medical facts known to the “employer.” They may be informed only of those things they need to know operationally, such as the anticipated length of an employee’s leave, if the employee is on intermittent leave or a reduced schedule leave (see below), when they may expect them to be present at work and whether the employee has any work restrictions.

Where FMLA leave is being requested for a planned medical procedure, HR should work with the supervisor to try to make sure that the employee’s leave does not fall at a time when it is crucial that they be present at work, on the one hand, and that the employee’s surgery is not unduly delayed, on the other.

What Happens When an Employee’s Need for FMLA Leave Arises Suddenly?

Not every condition that meets the definition of a serious health condition is predictable or, to use the term preferred by the regulations, “foreseeable.” An employee (or the employee’s immediate family member) may be in an accident, may suffer a heart attack or stroke or may collapse due to an as yet undiagnosed condition. A thirty-day advance notice requirement is unreasonable in these situations. That is why the FMLA requires employees to give notice of the need for FMLA “as soon as practicable” when the need for leave is not foreseeable. The regulations say that “as soon as practicable” will usually be on the same day or on the next business day. This means department heads and supervisors should immediately notify HR if they learn that an employee will be absent due to a serious accident or hospitalization. In the end, the employee may not be out of work for the three days necessary to meet the definition of a serious health condition, but the probability is greater in these situations. This will give HR a head start as the employer’s obligation to respond to a request for or situation calling for FMLA leave is five days in these circumstances, as well.

Fit-for-Duty Certifications When an Employee Returns to Work After FMLA Leave

Any supervisor, but especially those with subordinates working in physically-demanding positions, may be concerned about an employee’s fitness for work when they return to work from FMLA leave that was based on the employee’s own serious health condition. Department heads and supervisors should keep in mind that there is only one opportunity to request a fit-for-duty certification upon an employee’s return from FMLA leave. That is on the Designation Notice, the form that tells the employee that FMLA leave is approved. If the employer neglects to include that information on the Designation Notice, the employee cannot later be required to return a fit-for-duty certification.

So, department heads and supervisors: you must let HR know the positions for which fit-for-duty examinations  should be required after FMLA leave. Some employers require fit-for-duty certifications from all returning employees. You may think in that case that you don’t need to worry about fit-for-duty certifications. But even there, you have a role to play. The request for a fit-for-duty examination, like the medical certification form, allows an employer to attach a list of job duties and to ask the provider to certify that the employee is now fit to perform all their job duties. Department heads and supervisors must work with HR to keep job descriptions up-to-date so that fit-for-duty certifications accurately reflect current job duties.

Intermittent and Reduced Schedule Leave

Here’s where things get harder for department heads and supervisors. FMLA leave need not be for a consecutive twelve-week period. Because some medical conditions are chronic (diabetes, for example) or episodic (epilepsy, for example), and some treatments for certain conditions occur periodically (chemotherapy, for example), leave may be taken on an intermittent basis or on a reduced leave schedule. Intermittent leave is leave taken in separate blocks of time; a reduced leave schedule is a temporary reduction in the number of hours that an employee works during the workweek. Employers must grant requests for intermittent or reduced-schedule leave only if that kind of leave is medically necessary.

Supervisors often find both intermittent and reduced schedule leave difficult to deal with operationally, although for different reasons. Employees whose serious health conditions (or whose immediate family member’s health conditions) are episodic may call out without advance notice, leaving a department short-staffed and without sufficient time to find a replacement. There is not much department heads and supervisors can do about this, as it is the nature of the beast, but they can require employees on intermittent leave to comply with the employer’s usual requirements for reporting absences and may discipline those who fail to do so. Courts have found that failure of an employee on intermittent FMLA leave to comply with their employer’s call-in or reporting policy may be cause for termination. See here, here and here. At a minimum, holding employees to call-in requirements will ensure that supervisors have the greatest possible notice under the circumstances.

Occasionally, supervisors notice that an employee’s use of intermittent leave seems suspicious. Maybe it regularly falls on Mondays, Fridays and on days adjacent to holidays, for example. Department heads and supervisors should not investigate these situations on their own, as tempting as that may be, since if done improperly, an investigation could trigger a claim of FMLA interference. Instead, they should report their suspicions to HR, which can decide, along with the city or county manager or agency director, how an investigation would best be handled under the particular circumstances.

Reduced schedule leave presents its own challenges. Although the employer has the benefit of the employee’s presence for some part of the workweek, there may or may not be other employees who can take up the work for the other part. It may not be practical to hire a temporary worker when the employee is working part of each day or part of each workweek.

The FMLA permits employers to transfer, on a temporary basis, employees taking foreseeable intermittent leave or reduced schedule leave for their own or a family member’s planned medical treatment or to recover from their own or a family member’s serious health condition (note that the regulations explaining the conditions of a permissible temporary transfer do not include intermittent leave for chronic medical conditions). The purpose of the transfer must be to place the employee in a job that can demonstrably better accommodate the employee’s FMLA schedule. The job need not have the same duties, but the employee must be qualified for the job and must be compensated at the same rate of pay and with the same benefits as in their regular position. Employees must be returned to their original positions at the conclusion of intermittent or reduced-schedule FMLA leave.

An Employee’s Return to Work

FMLA leave is job-protected leave. That means two things. First, an employee cannot be fired (or have it held against them at performance review time) for taking FMLA leave. Second, when FMLA leave concludes, an employee must be returned to the same or an equivalent position. Here’s how the regulations explain “equivalent position:”

An equivalent position is one that is virtually identical to the employee’s former position in terms of pay, benefits and working conditions, including privileges, perquisites and status. It must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority.

An employee is entitled to reinstatement even if they have been replaced or their position has been restructured to accommodate their absence during FMLA leave.

What a Department Head or Supervisor Should Do

To recap, here are the four things department heads and supervisors need to do to help their city, county or agency comply with the FMLA:

1. Let HR know right away whenever an employee is absent from work for more than three days. Why? Because you count as “the employer” for FMLA purposes and employers must follow-up about the possibility that an absence qualifies for FMLA leave within five business days.
2. Immediately relay any requests for FMLA leave or sick leave to HR. And, even if FMLA is not mentioned, immediately let HR know when an employee requests permission to use accrued leave and indicates they the need the leave for medical reasons. Why? Again, because you count as “the employer” and employer must respond to a request for FMLA leave within five business days.
3. Ensure that HR is up-to-date on the essential job duties of any employee who may need FMLA need. Why? Because a description of an employee’s job duties may be included in a required medical certification and in a fit-for-duty certification. Those certifications then will help HR determine that an employee is entitled to FMLA leave in the first place and then, when leave is over, is fit to return to work.
4. Regularly update HR about any positions and job duties for which a fit-for-duty certification should be required upon an employee’s return from an FMLA leave. Why? Because a request for a fit-for-duty certification that addresses job duties can be made only at the beginning of an employee’s FMLA leave (on the Designation Notice). You won’t be able to ask for it or update the list of job duties after that.

Military FMLA Leave

The FMLA also requires employers to grant eligible employees who are the spouse, child, parent or next of kin of a member of the U.S. armed forces (including the National Guard and the Reserves) to a total of up to twenty-six workweeks of unpaid leave during a twelve-month period to care for a servicemember who is receiving medical treatment for or recovering from a serious injury or illness incurred in the line of duty. Military FMLA leave will be discussed in later blog post.