Answers to Your Most Common FMLA Questions

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The following is excerpted from Chapter 4 of From Hello to Goodbye, Second Edition (SHRM, 2017), written by Christine V. Walters, MAS, JD, SPHR.

With more than 25 years of combined experience in HR administration, management, employment law practice, and teaching, HR legal expert Christine V. Walters shares (and answers!) the most pressing questions about the FMLA.

What notice must an employer provide to an employee and when and what is the penalty for failing to do so?

A covered employer must provide an employee with the "Notice of Eligibility and Rights" within five days from the time the employer learns of the employee's need for FMLA leave. If an employee suffers individual harm because the employer did not follow the notification rules and provided the notice more than five days later, the employer may be liable for damages. (See the Practical Tips at the end of this chapter; your managers are often critical in this part of the process.)

In addition to the first "Notice of Eligibility and Rights," the employer must next provide the employee with a "Designation Notice" within five days from the date the employer determines whether the need for leave is FMLA qualifying. Practically speaking, this is usually the date the employee returns the FMLA medical certification form. This raises a common question: "What if an employee tells me that he does not want his qualifying leave to be counted as FMLA leave?" Under the FMLA, the employer retains the right to designate qualifying leave as FMLA. If the employer does not, then the employee may retain the right to a full 12 workweeks of FMLA leave, despite having already taken time off from work that qualifies for FMLA leave.

What notice must an employee provide to his employer?

Where an employee's need for FMLA leave is foreseeable, which is not the case in most instances in my experience, then the employee must provide the employer with at least 30 days of notice. If the employee's need for leave is not foreseeable within 30 days, then the employee is required to give his employer notice as soon as is practicable. An employer may require an employee to comply with the employer's usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances. For example, if an employer has a policy that an employee must call his supervisor regarding any absence, then the employee taking FMLA leave may be required to do the same; e.g., telling a coworker to tell his supervisor that he will be absent may not be acceptable.

If an eligible employee requests FMLA leave for surgery that requires and/or results in an overnight stay in the hospital but the surgery is elective, is it covered under the FMLA?

The answer is yes, it may be covered. The federal regulations read, "Conditions for which cosmetic treatments are administered (such as most treatments for acne or plastic surgery) are not 'serious health conditions' unless inpatient hospital care is required or unless complications develop."

Does "light duty" work count towards FMLA?

Generally not. Under the current regula­tions, time an employee spends working in a "light duty" position does not count against an employee's FMLA leave entitlement. But, this is balanced with a provision that the employee's right to reinstatement ends in the FMLA year used by the employer. So let's assume an employer uses the backward-rolling calendar year for FMLA purposes, which is what I find most employers use. An employee goes out on FMLA leave on June 1, but the employee is released to work light-duty eight weeks later. You have a light-duty position available and the employee accepts your offer, but the physician indicates that the duration of the need for light-duty is unknown at this time. Does the employer have to permit the employee to work in that light-duty position for more than the four remaining weeks of FMLA leave? Yes, because the time spent working in the light-duty position does not count against the employee's FMLA leave entitlement. So does the employer have to permit the employee to continue working in that light-duty position forever? No, the employee's right to be reinstated to his job expires on May 31 of the following year, which is the end of the FMLA year that his employer uses.

Does an employee who is absent on FMLA leave still have the right to bonuses and awards, like a perfect attendance award?

Not necessarily. Today, an employer may deny a bonus or perfect attendance award to an employee who took FMLA leave—but only if the employer treats employees taking non-FMLA leave in an identi­cal way. The perfect attendance example is pretty easy: as long as only those employees who incurred zero absences receive the award, then the employee who was absent under FMLA may be denied the award. But what about bonuses? What if an employer offers a pay-for-performance bonus program and an employee fails to meet a sales or productivity standard because he was absent on FMLA? Can the employee be denied this bonus? The answer is the same: yes, so long as other employees who missed the standard, regardless of the reason, are also denied the bonus. If a bonus or other payment is based on the achievement of a specified goal, such as hours worked, products sold, or perfect attendance, and the employee has not met the goal due to FMLA leave, then the payment may be denied, unless otherwise paid to employees on an equivalent leave status for a reason that does not qualify as FMLA leave. 

Christine V. Walters, MAS, JD, SPHR, has nearly 25 years of combined experience in HR administration, management, employment law practice, and teaching. She has been engaged as an expert witness, and testified be­fore the U.S. Congress, state legislative committees, and federal adminis­trative agencies.  She also serves as an independent consultant doing business as FiveL Company, Helping Leaders Limit Their Liability by Learning the Law.