• Time off
  • What If I Want To Take Time Off Under The FMLA, But I Don't Need A Full 12 Weeks Off, Or Need To Take Time Off on A Daily Or Even Hourly Basis?
  • What If I Need More Than 12 Weeks Off Of Work?
  • How Is The 12 Month FMLA Period Determined?
  • How Is Time Off Counted?
• Salary/bonuses
  • What Happens To My Salary If I Take Leave Under The FMLA?
  • Does An Employer Have To Pay Bonuses To An Employee Who Has Been On FMLA Leave?
• COBRA
  • What's The Relationship Between The FMLA And The Continuation Of Health Coverage Under COBRA?
• Retaliation: Can My Employer Retaliate Against Me For Asking For Time Off Under The FMLA?
• Union: What If A Collective Bargaining Agreement Requires More Than FMLA?
• Benefits: Does FMLA Affect Employee-Pay-All Benefits?
• Certification: What Questions Can An Employer Ask To A Professional Who Certifies FMLA Need?
• Return To Work: What If I Accept A Light Duty Assignment When I Return To Work?

If you need more time off than permitted under the FMLA:

Check your state law

Your state law may be more generous than the FMLA and provide longer than 12 weeks of leave. If your state law gives you a greater benefit than the federal FMLA, your state law governs. If your state law allows less time off than the FMLA, the FMLA would govern.

If you qualify for leave under both the FMLA and state law, while you would be entitled to the greater benefit of the two, any leave you take will apply to the provisions of both laws. For example, if you were qualified for 12 weeks of leave under the FMLA and 16 weeks of leave under state law, you may take up to the 16 weeks. However, the first 12 weeks of leave would also exhaust your FMLA leave. You would not be entitled to 12 weeks plus 16 weeks leave. In this scenario, if your state law does not require your employer to maintain your health benefits, the requirement to do so would end at 12 weeks, when your FMLA benefits cease. If you took the additional 4 weeks leave provided by state law, your health benefits could end subject to COBRA regulations, or you could attempt to negotiate a continuation of your benefits.

Consider a Job Accommodation

It may be possible to request additional unpaid leave as a job accommodation under the Americans With Disabilities Act. Before you consider this option, think about whether the time you need is full time, or whether you could work part time or from home. If either of these scenarios are possible, you may receive some portion of your pay as well as the benefits that you would otherwise not receive during your FMLA leave.

CAUTION:

• Be careful requesting a job accommodation in which you work less than full time -- you may compromise your eligibility for benefits, including both health insurance and disability benefits.
• Your employer does not have an obligation to rehire you if you stay away from work beyond the period protected by law, whether under the FMLA or as an accommodation under the Americans With Disabilities Act.
• Taking more than the 12 weeks of leave allowed by the FMLA can raise complicated benefits questions. If you have doubts about your options, speak with a health finance counselor or an attorney.

If you're envisioning a long additional period of leave, now may be the time to consider going on disability.

The FMLA itself does not provide any compensation while you are on an FMLA leave.

However, either you may elect, or your employer may require, that as part of your FMLA leave, you take whatever paid leave is due you, such as time off for vacation or personal days.

• If your employer provides you with paid vacation, sick or personal days, you may elect to use up any accrued days as part of the 12 weeks of FMLA leave. (Of course, the benefit of this is that you get paid for those days, whereas pure FMLA leave is unpaid). If you would normally be entitled to a continuation of benefits during your vacation, sick or personal days, you are entitled to those benefits even though the days count against the FMLA period.
• But note: Even if you decide not to substitute paid leave for a portion of your FMLA unpaid leave, your employer can insist that you do so. In other words, if you need to take off twelve weeks of work, your employer may require that you use up your accrued sick or vacation days during the course of those twelve weeks.

See if you can protect your income by taking an accommodation under the Americans With Disabilities Act rather than leave under the FMLA.

The FMLA requires that employees be restored to the same or an equivalent position when returning to work after FMLA leave. If you were eligible for a bonus before taking FMLA leave, you will be eligible for the bonus upon returning to work. The FMLA leave may not be counted against you.

• For example, if an employer offers a perfect attendance bonus, and you have not missed any work other than your FMLA leave, you will remain eligible for the bonus upon returning from FMLA leave.

On the other hand, the FMLA does not require that employees on FMLA leave be allowed to accrue benefits or seniority.

• For example, an employee on FMLA leave might not have sufficient sales to qualify for a bonus. The employer is not required to make any special accommodation for that employee because of FMLA. The employer must, of course, treat an employee who has used FMLA leave at least as well as other employees on paid and unpaid leave (as appropriate).

The FMLA requires an employer to maintain coverage under any group health plan for an employee on FMLA leave under the same conditions coverage would have been provided if the employee had continued working.

• Coverage provided under the FMLA is not COBRA coverage.
• FMLA leave is not a qualifying event under COBRA.

However, a COBRA qualifying event may occur so COBRA applies when an employer's obligation to maintain health insurance benefits under FMLA stops. For example, when an employee notifies an employer of his or her intent not to return to work.

No.

Also, an employer cannot consider FMLA leave in other employment actions, such as hiring, promotions, attendance policies, or disciplinary actions.

If you believe you have been retaliated against because of a request for FMLA leave, or because you took FMLA leave, contact the Equal Employment Opportunity Commission (EEOC).  You can find the contact information at www.eeoc.gov

                                                                                           Reviewed and editied by Lisa Gerson, Esq.
                                                                                           McDermott Will & Emery LLP
                                                                                           340 Madison Avenue
                                                                                           New York, New York  10173-1922                        

The Federal Family & Medical Leave Act (FMLA) is about weeks of unpaid , job-protected, health insurance protected, leave during a twelve (12) month period.

An employer gets to define the 12 month period so long as the definition is consistent. For example, the 12 month period could be a calendar year, or the employer's fiscal year if that is different from the calendar year, or another 12 month period.

While the question may seem simple, it can get complicated with some jobs. For instance, a pilot who generally flies across the country. The pilot needs 2 hours off. Because of taking the 2 hours, she misses her scheduled 6 hour flight. Is it 2 hours off or 6? Or more if the time off lives her in the wrong city?

The answer is that it depends on the employer's policy - so long as it is reasonably applied. 

• Name, address, and phone number of a health care provider.
• The provider's type of practice (if the person is an oncologist, it discloses that the patient has cancer)
• The health condition
  • What it is with sufficient detail to support the need for FMLA leave
  • Approximate date the health condition began
  • Esimtate about how long the condition will last

If you accept a light duty assignment while recovering from a serious health condition, you are not considered to be on FMLA leave. The result is that if you are doing a light duty assignment at the end of the 12-month leave year period that your employer uses to calculate FMLA leave, you will lose your right to restoration to your regular job after the end of the year. For example, if your employer uses a calendar year as the 12 month leave year, if you are still doing light duty on December 31, as of January 1 you will not have a right to be reinstated to your original job.