Does the law guarantee paid time off for FMLA?
No. The FMLA only requires unpaid leave. However, the law allows an employee to elect – or the employer to require the employee – to use accrued paid leave, such as vacation or sick leave, for some or all of the FMLA leave period. When paid leave is substituted for unpaid FMLA leave, it may be counted against the 12-week FMLA leave entitlement if the employee is properly notified of the designation when the leave begins. Georgia Tech requires that employees use their accrued paid sick leave and/or vacation leave concurrently with FMLA leave before they go into an unpaid status. 

Exceptions:

If your FMLA leave is a result of an on-the-job injury and is covered under Workers’ Compensation, you have the option of taking unpaid leave even if you have sick or vacation leave available. If an employee on FMLA leave has short-term disability (STD) insurance, the employee will go into an unpaid leave status once they begin receiving STD benefits, reserving any remaining accrued leave (sick/vacation) for use after the employee returns from leave.  

If an employer fails to tell an employee that the leave is FMLA leave, can the employer count the time the employee has already been off against the 12 weeks of FMLA leave?
Yes. The employer may retroactively designate leave as FMLA leave with appropriate notice to the employee provided that the employer’s failure to timely designate leave does not cause harm or injury to the employee by lessening future leave time. 

For example, if an employer was put on notice that an employee needed FMLA leave and failed to designate the leave properly, but the employee’s own serious health condition prevented him or her from returning to work during that time period regardless of the designation, the employee is not considered to have suffered harm due to the failure to properly designate the leave as FMLA. However, if an employee took leave to provide care for a son or daughter with a serious health condition believing it would not count toward his or her FMLA entitlement, and the employee planned to later use that FMLA leave to provide care for a spouse who would need assistance when recovering from surgery planned for a later date, the employee may be able to show that harm has occurred as a result of the employer’s failure to designate properly. The employee might establish this by showing that he or she would have arranged for an alternative caregiver for the seriously-ill son or daughter if the leave had been designated timely.  In all cases where leave would qualify for FMLA protections, an employer and an employee can mutually agree that leave be retroactively designated as FMLA leave.

Does the employee have to provide the employer with medical records for leave due to a serious health condition?

Medical records are not required to support a requested leave due to a serious health condition, however, medical certification from the healthcare provider confirming that a serious health condition exists is.  A medical certification is a single document that confirms the serious health condition in question.  

Is an employee still eligible to receive a perfect attendance award if he/she uses FMLA leave?

Employers may deny a “perfect attendance” award to an employee who does not have perfect attendance because of taking FMLA leave as long as it treats employees taking non-FMLA leave in an identical way. 

• The employee adheres to the FMLA notice and certification requirements; and
• The employee has not exhausted their FMLA leave entitlement for the year

In all cases, the employer may request a recertification of a medical condition every six months in connection with an absence by the employee.

Can an employer refuse to grant an employee FMLA leave?
An employee may not be denied FMLA leave provided:

The employee is an “eligible” employee; The purpose of the leave meets FMLA’s definition of a qualifying reason;

Please note that an employee must use their available accrued sick leave and/or vacation during the STD waiting period.  However, employees are not able to use both vacation/sick and receive disability benefits at the same time. 

Does Workers’ Compensation leave count against an employee’s FMLA leave entitlement?

Yes. FMLA leave and Workers’ Compensation leave may run at the same time, provided the reason for the absence is due to a qualifying serious illness or injury.   A serious illness or injury as defined by FMLA is a period of incapacity of more than three full consecutive calendar days and any subsequent treatment or period of incapacity relating to the same condition, that also involves (a) treatment two or more times by a health care provider or (b) treatment by a health care provider on at least one occasion which results in a regiment of continuing treatment under the supervision of the healthcare provider.

Can an employer require an employee to return to work before they exhaust their FMLA leave?
Subject to certain limitations, an employer may deny the continuation of FMLA leave due to a serious health condition if the employee fails to fulfill any obligations to provide supporting medical certification. The employer may not, however, require the employee to return to work early by offering the employee a light duty assignment.

Are there any restrictions on how the employee can spend their time while on leave?
It is presumed that employees on FMLA for their own serious health conditions are not working outside of the Institute while on FMLA leave. Otherwise, the employer may not restrict an employee’s activities. The protections of FMLA will not, however, cover situations where the reason for leave no longer exists, where the employee has not provided required notices or certifications, or where the employee has misrepresented the reason for leave.  

Can an employer make inquiries about the employee’s leave during the employee’s absence?

Yes, they may make inquiries of the employee. The employer may ask questions to confirm whether the leave needed or being taken qualifies for FMLA purposes, and may require periodic reports on the employee’s status and intent to return to work after leave. Also, if the employer wishes to obtain another opinion, the employee may be required to obtain additional medical certification at the employer’s expense, or rectification during a period of FMLA leave. The employer may also contact the employee’s health care provider, with the employee’s permission, for purposes of clarification and authentication of the medical certification (whether initial certification or recertification) after the employer has given the employee an opportunity to cure any deficiencies.  To make such contact, the employer must use a health care provider, human resources professional, leave administrator, or management official. Under no circumstances, however, may the employee’s direct supervisor contact the health care provider.  The inquiry may not seek additional information regarding your health condition or that of a family member.

How often can an employer require an employee to re-certify their need for FMLA leave?
Typically, an employer may request recertification documentation no more often than every 30 days (except as indicated below) and only in connection with an absence by the employee, unless the medical certification indicates that the minimum duration of the condition is more than 30 days, in which case the employer must wait until that minimum duration expires before requesting a recertification. For example, if the medical certification states that an employee will be unable to work, whether continuously or on an intermittent basis, for three months, the employer must wait three months before requesting a recertification.

An employer may request recertification in less than 30 days if:

The employee requests an extension of leave; Circumstances described by the previous certification have changed significantly (e.g., the duration or frequency of the absence, the nature or severity of the illness, complications). For example, if a medical certification stated that an employee would need leave for one to two days when the employee suffered a migraine headache and the employee’s absences for his or her last two migraines lasted four days each, then the increased duration of absence might constitute a significant change in circumstances allowing the employer to request a recertification in less than 30 days. Likewise, if an employee had a pattern of using unscheduled FMLA leave for migraines in conjunction with his or her scheduled days off or weekends, then the timing of the absences also might constitute a significant change in circumstances sufficient for an employer to request a recertification more frequently than every 30 days; The employer receives information that casts doubt upon the employee’s stated reason for the absence or the continuing validity of the certification. For example, if an employee is on FMLA leave for four weeks due to the employee’s knee surgery, including recuperation, and the employee is seen playing in a softball game during the employee’s third week of FMLA leave, such information might be sufficient to cast doubt upon the continuing validity of the certification allowing the employer to request a recertification in less than 30 days.

Can an employee be terminated while out on FMLA leave?
An employer may not take any adverse action against an employee for taking FMLA leave; however, a personnel action/decision that would have happened if the employee had continued to work may happen while the employee is on FMLA leave.

For example, if an employer decides that a reduction-in-force is necessary and the employee taking FMLA leave legitimately falls within the group of employees to be laid off, the employee may be laid off even while taking FMLA leave. If the employee is laid off, the employer’s obligations under FMLA stop as of the effective date of the layoff.  Also, if it is discovered while an employee is out on FMLA leave that the employee is guilty of a serious policy violation, the employer may terminate the employee while they are out on FMLA leave.

Human Resources must be consulted before any adverse action is taken against an employee on FMLA leave.

Can an employee lose their job because they took FMLA leave?
Generally, no. It is unlawful for any employer to interfere with or restrain or deny the exercise of any right provided under the Family & Medical Leave Act.  Employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions; nor can FMLA leave be counted under “no fault” attendance policies. Under limited circumstances, an employer may deny reinstatement to work – but not the use of FMLA leave – to certain highly paid, salaried (“key”) employees.  Additionally, employers not required to reinstate employees who would have been laid off or otherwise had their employment terminated had they continued to work during the FMLA leave period as, for example, due to a general layoff.

Are there other circumstances in which an employer can deny an employee on FMLA leave reinstatement to their job?
In addition to denying reinstatement in certain circumstances to “key” employees, employers are not required to continue FMLA benefits or reinstate employees who would have been laid off or otherwise had their employment terminated had they continued to work during the FMLA leave period as, for example, due to a general layoff.  Employees who give unequivocal notice that they do not intend to return to work lose their entitlement to FMLA leave. Employees who are unable to return to work and have exhausted their 12 weeks of FMLA leave in the designated “12-month period” no longer have FMLA protections of leave or job restoration.

Under certain circumstances, employers who advise employees experiencing a serious health condition that they will require a medical certificate of fitness for duty to return to work may deny reinstatement to an employee who fails to provide the certification or may delay reinstatement until the certification is submitted.

Can an employer fire an employee for complaining about a violation of FMLA?
No. Nor can the employer take any other adverse employment action on this basis. It is unlawful for any employer to discharge or otherwise discriminate against an employee for opposing a practice made unlawful under FMLA.