Skip to content

FMLA

The Family and Medical Leave Act (FMLA) guarantees eligible employees up to twelve workweeks of job-protected leave in a twelve-month period for a serious health condition. Review the FAQs (https://www.dol.gov/agencies/whd/fmla/faq). Employers are not required to pay salary during the leave (and generally don’t), though they must maintain group health benefits, and the employee may be required to use accrued paid leave concurrently.

The job protection is real but limited: on return, the employee is entitled to the same position or an equivalent one — virtually identical in pay, benefits, duties, status, and shift, at the same or a nearby worksite (29 CFR 825.214–.215). “Equivalent” is not “identical,” and there is a narrow exception for “key employees” in the highest-paid 10% within 75 miles. So the honest answer to “will I get my job back?” is “the same job or one very much like it, unless your employer can show you’d have been laid off anyway.”

If someone is requesting FMLA, they are only getting job protection. No money. It’s generally a safe bet they’re not malingering.

The certification questions are standardized. Employers may not require more information than the certification permits. The Department of Labor (DOL)publishes standardized forms (https://www.dol.gov/agencies/whd/fmla/forms), though most large corporations prefer their own version. I stick with the DOL form: I’m very familiar with it, a fillable PDF, and it’s ready to go when the patient has forgotten their HR paperwork or has it only on their phone. Bonus points if you pre-fill your name and contact information.

Some quick tips:

  • The employee has to be eligible. They must have worked for a covered employer for at least 12 months (not necessarily consecutive), have at least 1,250 hours of service in the 12 months before leave starts, and work at a location where the employer has at least 50 employees within 75 miles.

  • “Serious health condition” is a defined term, and it is narrower than the folklore. It means inpatient care, or continuing treatment by a provider, which in practice means one of:

  • incapacity of more than three consecutive full calendar days plus either two in-person visits within 30 days (the first within 7 days of onset) or one visit plus a regimen of continuing treatment such as prescription medication;

  • pregnancy or prenatal care;
  • a chronic condition requiring periodic visits (at least twice a year), continuing over an extended period, and causing episodic incapacity — asthma, diabetes, migraine, epilepsy;
  • a permanent or long-term condition for which treatment may not be effective; or
  • a condition requiring multiple treatments, such as chemotherapy, dialysis, or physical therapy.
  • The regulation (29 CFR 825.113) specifically says that the common cold, the flu, earaches, upset stomach, minor ulcers, headaches other than migraine, and routine dental problems ordinarily do not qualify. Two visits for a cold is not enough; two visits a year for a chronic condition that flares is. Mental illness qualifies on the same terms as anything else.

  • FMLA to care for a family member is limited to a spouse, son, daughter, or parent (and in loco parentis relationships). Not in-laws, not siblings, not grandparents. The certification is completed by the sick person’s doctor, not by the doctor of the family member who needs the time off — and the person taking leave still has to be FMLA-eligible themselves. There are separate, longer provisions for military caregiver leave (up to 26 weeks) and qualifying exigency leave.

  • Overestimate the time off and the flare frequency when the course is uncertain, and be generous with intermittent leave. Estimates can be revised. Underestimating is a bureaucratic nightmare of recurrent forms. There’s a mechanical reason this works: if the certification states a minimum duration of more than 30 days, the employer must wait out that duration before asking for recertification, and in general can only recertify every six months in connection with an absence.

  • If the employer contacts you, know who’s allowed to make that call. They may contact you to authenticate or clarify the certification — but the employee’s direct supervisor may never be the one making that call, and they need the employee’s HIPAA authorization for anything beyond authentication. They may not ask you for additional information beyond the form. If they doubt your certification, the remedy is a second opinion at their expense, not an interrogation of you.

  • Standing FMLA is not unusual. I have a few patients who come in every six months for migraine-related FMLA. I save a copy of their last certification with the dates blank, so I update and sign. We otherwise just have a nice chat.

  • Employer can’t require you use their own FMLA form. From the DOL website above: “Employers must accept a complete and sufficient certification, regardless of the format. The employer cannot reject a certification that contains all the information needed to determine if the leave is FMLA-qualifying. The employer cannot refuse: 1) A fax or copy of the certification; 2) A certification that is not completed on the employer’s standard company form; or 3) Any other record of the medical documentation, such as a communication on the letterhead of the healthcare provider.”

FMLA related to “I need a mental health day” is addressed below.