Frequently Asked Questions: Family Medical Leave Act (FMLA)

What is FMLA?

The Family and Medical Leave Act (FMLA) provides covered employees with up to 12 weeks of job-protected leave without pay (LWOP) during any 12 month period for certain family and medical needs.

Can an employee be denied FMLA leave?

FMLA leave is an entitlement to employees who qualify under all conditions of eligibility, notice, certification, usage purpose, and if the FMLA leave entitlement has not been exhausted within the 12 month period. By satisfying all eligible conditions, an employee may not be denied FMLA leave.

Who is eligible for FMLA?

All federal employees who have completed at least 12 months of federal service.

The following employees are not covered:

  • Public Health Service (PHS) Commissioned Corps Officers
  • Employees with intermittent appointments
  • Employees with temporary appointments of less than 13 months
  • Individuals not appointed by the government, such as:
    • Intramural Research Training Award Fellows
    • Guest Researchers
    • Visiting Fellows
    • Special Volunteers
For whom can FMLA leave be used?

Family members under FMLA fall under a narrow definition. FMLA leave may be used for:

  • Employee (self)
  • Employee’s child(ren)
  • Employee’s parent(s)
  • Employee’s spouse (legal marriage regardless of sex or state of residency)
  • “Next of kin” under military caregiver leave
What types of family and medical needs qualify under FMLA?

FMLA leave may be used for:

  • the birth of a son or daughter of the employee and the care of such son or daughter
  • the placement of a son or daughter with the employee for adoption or foster care
  • the care of a spouse, son or daughter, or parent of the employee who has a serious health condition
  • a serious health condition of the employee that makes the employee unable to perform the essential functions of his or her position
  • qualifying exigency arising out of the fact that the spouse, a son or daughter, or a parent of the employee is on covered active duty (or has been notified of an impending call or order to covered active duty) in the Armed Forces
  • military caregiver leave
What is a serious health condition under FMLA?

A serious health condition can involve some or all of the following:

  • Conditions that require inpatient care in a hospital, hospice, or residential medical care facility
  • Conditions that incapacitate an employee or employee’s family member for more than three consecutive days and require ongoing medical treatment
  • Chronic conditions that cause occasional periods when an employee or employee’s family member are incapacitated and require treatment by a health care provider
  • Pregnancy and childbirth

This definition includes conditions such as cancer, heart attacks, strokes, severe injuries, Alzheimer's disease, and/or terminal diseases. A serious health condition is not intended to cover short-term condit ions for which treatment and recovery are very brief, such as common cold, influenza, earaches, upset stomach, headaches (other than migraines), and/or routine dental or orthodontia problems unless complications arise.

What is a qualifying exigency related to covered active duty in the Armed Forces?

FMLA can be used when a family member is called to or is on covered active duty. FMLA can help in the following situations.  Specific terms can be found on the Office of Personnel Management’s (OPM) fact sheet.

  • Short-notice deployment
  • Military events and related activities
  • Childcare and school activities
  • Care of service member’s parent
  • Financial and legal arrangements
  • Counseling
  • Rest and recuperation
  • Post-deployment activities
What is covered active duty for FMLA qualifying exigency?

FMLA can be used when a family member is called to or is on active duty. Covered active duty or call to covered active duty status refers to:

  • Regular component of the Armed Forces - duty during the deployment of the service member with the Armed Forces to a foreign country under a call or order to active duty (or notification of an impending call or order to active duty)
  • Member of a reserve component of the Armed Forces - duty during the deployment of the service member with the Armed Forces to a foreign country under a call or order to active duty (or notification of an impending call or order to active duty)
What is military caregiver leave under FMLA?

Military caregiver leave allows eligible employees to take up to 26 weeks of leave in a single 12-month period to care for a family member (spouse, son or daughter, parent, next of kin) who is a covered service member/veteran with a serious injury or illness. Military caregiver leave is available to an eligible employee once per service member, per serious injury or illness.

The “next of kin” of a covered service member/veteran is the nearest blood relative, other than the veteran’s spouse, parent, son, or daughter, in the following order of priority:

  1. a blood relative who has been designated in writing by the service member as the next of kin for FMLA purposes
  2. blood relative who has been granted legal custody of the service member
  3.  brothers and sisters
  4. grandparents
  5. aunts and uncles
  6. first cousins

A veteran who is undergoing medical treatment, recuperation, or therapy for a serious injury or illness is a cover ed veteran if he or she:

  • was a member of the Armed Forces (including a member of the National Guard or Reserves)
  • was discharged or released under conditions other than dishonorable
  • was discharged within the five -year period before the eligible employee fir st takes FMLA military caregiver leave to care for him or her

A serious injury or illness is one that is incurred by a service member while on active duty that may cause the service member to be medically unfit to perform the duties of his or her office, grade, rank, or rating. A serious injury or illness also includes injuries or illnesses that existed before the service member’s active duty and that were aggravated by service while on active duty.

For what other purposes can an employee use FMLA leave?

Federal employees can use 24 hours of leave without pay during any 12-month period to fulfill certain family obligations:

  • School and Early Childhood Educational Activities - to allow employees to participate in school activities directly related to the educational advancement of a child
  • Routine Family Medical Purposes - to allow parents to accompany children to routine medical or dental appointments
  • Elderly Relatives' Health or Care Needs - to allow employees to accompany an elderly relative to routine medical or dental appointments or other professional services
Can I lose my position by using FMLA leave?

Upon return from FMLA leave, an employee must be restored to his or her original job, or to an "equivalent" job, which means virtually identical to the original job in t erms of pay, benefits, and other employment terms and conditions. While on an intermittent/reduced schedule for FMLA, the employer may transfer the employee temporarily to an alternative position with equivalent pay and benefits that accommodates recurring periods of leave better than the employee's regular job. An employee may also request a temporary alternative position subject to approval by employer while on an intermittent/reduced schedule.

Will I lose my benefits coverage while on FMLA leave?

An employee who takes FMLA leave is entitled to maintain health benefits coverage. An employee on unpaid FMLA leave may pay the employee share of the premiums on a current basis or pay upon return to work. Being in a leave without pay (or unpai d FMLA leave) status affects various employee entitlements, including the accrual of annual and sick leave. For example, when a full- time employee with an 80 -hour biweekly tour of duty accumulates a total of 80 hours of nonpay status (either in one pay per iod, or over the course of several pay periods), the employee will not earn annual and sick leave in the pay period. Further details on the effects of extended leave without pay on federal benefits and programs can be found on this NIH Benefits and Payroll Liaison Branch fact sheet.

Can a leave approving official/supervisor mandate an employee to take FMLA leave?

A federal employee is responsible for requesting leave or other time off fr om work; therefore, the employee is responsible for invoking his/her entitlement to FMLA leave. Under 5 CFR 630.1203(h), an agency may not subtract leave from the 12-week FMLA leave entitlement unless the agency has obtained confirmation from the employee of his or her intent to invoke entitlement to FMLA leave (e.g., giving notice). However, an employee may be required to invoke FMLA to secure leave approving official’s approval of LWOP, advanced annual leave, advanced sick leave, or hours from Voluntary Leave Transfer Program and/or Leave Bank Program – all leave categories/programs that are not employee entitlements.

How much leave can I use under FMLA?

The duration of leave will be based on the certification.

Employees may not use more than 12 weeks of FMLA leave for the following reasons:

  • The birth of a son or daughter of the employee and the care of such son or daughter
  • The placement of a son or daughter with the employee for adoption or foster care
  • The care of a spouse, son or daughter, or parent of the employee who has a serious health condition
  • A serious health condition of the employee that makes the employee unable to perform the essential functions of his or her position
  • A qualifying exigency arising out of the fact that the spouse, or a son or daughter, or parent of the employee is on covered active duty (or has been notified of an impending call or order to covered active duty) in the armed forces

Employees may use up to 26 weeks of military caregiver leave. If you think you may be eligible to use military caregiver leaver, reach out to your HR Benefits contact.  They will help you determine your eligibility.

Is FMLA leave granted as a continuous block or can there be intermittent usage?

FMLA allows employees to take leave on an intermittent basis or to work a reduced schedule.  See additional information for episodic requests for leave under intermittent usage of FMLA leave. Contact your servicing Employee/Labor Relations Specialist with any additional questions.

Do federal holidays count toward the entitled FMLA (12 weeks) leave time?

FMLA leave may be charged only on days on which an employee is scheduled to be in a duty status. Any holidays authorized under 5 U.S.C. 6103 or by Executive order and non -workdays established by Federal statute, Executive order, or administrative order that occur during the period in which the employee is on FMLA leave will not be counted toward the 12 -week entitlement to family and medical leave.

How do I request FMLA leave?

If you need to use FMLA leave, notify your leave approving official of the intent to use FMLA. Then, you must submit certification paperwork as requested by the agency.  Contact your administrative officer/timekeeper to arrange the leave details for timekeeping purposes.

How do I record FMLA leave for timekeeping purposes?

Submit your FMLA leave requests into the timekeeping system, Integrated Time and Attendance System (ITAS).

Integrated Time and Attendance System (ITAS) instructions:

  1. After logging into ITAS, select “Request Leave” on upper left-hand column.
  2. Click on the “Other Types” link for “Leave Type.”
  3. After the leave types expand, scroll down to the FMLA leave categories and select the appropriate category whether it is annual leave, sick leave, or LWOP.
  4. Submit the appropriate number of hours requested in the “Hours” column.
  5. Select the dropdown box immediately to the right in the “Remark” column to select FMLA leave purpose, such as “Birth of a child/care of a newborn,” “Placement of a child for adoption or foster care,” “Serious health condition – employee,” etc.

ITAS screenshots can be found below. Further questions on submitting FMLA leave requests in ITAS can be directed to the employee’s administrative officer/timekeeper.

How can an employee request episodic FMLA leave under intermittent schedule conditions (calling out)?

Employees whose approved FMLA leave under an intermittent schedule allows for episodic leave requests (e.g., condition manifests in an unscheduled manner and employees require leave) should make FMLA leave requests as soon as possible and explicitly notify their leave approving official that the leave is for FMLA when “calling out.” If the employee has been approved for FMLA leave under an intermittent schedule , has not exceeded the maximum length of time app roved , and is within the 12 month period, the leave approving official must approve this particular episodic FMLA leave request and may not seek further certification or violate the confidentiality of the employee regarding this episodic FMLA leave request. It should be accurately recorded as “FMLA leave” in ITAS.

What kind of documentation and paperwork is required in order to use FMLA leave?

An employee who wishes to use FMLA leave is required to complete certification connected to the purpose of the FMLA leave. Complete the relevant form below and submit to your HR benefits contact.

  • WH-380E Certification of Health Care Provider for Employee’s Serious Health Condition
  • WH-380F Certification of Health Care Provider for Family Member’s Serious Health Condition
  • WH-384 Certification of Qualifying Exigency for Military Family Leave
  • WH-385 Certification for Serious Injury or Illness of a Current Servicemember for Military Family Leave
  • WH-385V Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave
Are active duty orders required for FMLA leave taken for a qualifying exigency?

The first time an employee requests leave because of a qualifying exigency arising out of the covered active duty or call to covered active duty status of a covered service member, an agency may require the employee to provide a copy of the covered service member's active duty orders or other documentation issued by the military that indicates the covered service member is on covered active duty or call to covered active duty status , and the dates of the covered service member's active duty service. This information need only be provided to the agency once. A copy of new active duty orders or other documentation issued by the military must be provided to the agency if the need for leave because of a qualifying exigency arises out of a different covered active duty or call to covered active duty status of the same or a different covered service member.

What happens with an employee’s FMLA documentation?

An employee is not required to disclose the specific nature of a serious health condition or provide medical records to his/her leave approving official - only that FMLA leave is requested for a condition that satisfies FMLA requirements. As such, the employee may either submit medical certification directly to his/her leaving approving official or to Occupational Medical Service (OMS) to maintain confidentially. OMS can attest whether the employee qualifies for a FMLA-approved condition and nature of duration for leave granting purposes. While OMS may comment on the existence or nonexistence of a serious health condition that qualifies for FMLA leave, only the leave approving official may approve or disapprove the FMLA leave. An Employee/Labor Relations Specialist who services the employee’s Institute/Center can help the employee’s supervisor with navigating concerns/guidance for employees invoking FMLA.

The employee’s certification and paperwork for FMLA must be secured whenever not in use or under the direct control of authorized persons. It must be stored in metal filing cabinets which are locked when the records are not in use, or in a secured room. The paperwork will be safely stored and destroyed one year after the employee returns from FMLA leave.

Does an employee have to recertify their medical certification?

Your leave approving official may require subsequent medical recertification on a periodic basis, but not more than once every 30 calendar days, for leave taken for purposes relating to pregnancy, chronic conditions, or long-term conditions (under the definition of serious health condition). For leave taken for all other serious health conditions and including leave taken on an intermittent or reduced leave schedule, if the health care provider has specified on the medical certification a minimum duration of the period of incapacity, the agency may not request recertification until that period has pas sed. An agency may require subsequent medical recertification more frequently than every 30 calendar days, or more frequently than the minimum duration of the period of incapacity specified on the medical certification, if the employee requests that the or iginal leave period be extended, the circumstances described in the original medical certification have changed significantly, or the agency receives information that casts doubt upon the continuing validity of the medical certification.

Can the employer verify certification for FMLA leave for qualifying exigencies?

If an employee submits a complete and sufficient certification to support his or her request for leave because of any qualifying exigency for covered active duty, the agency may not request additional information from the employee. However, the agency may verify the information described below and does not need the employee's permission to do so.

  1. If the qualifying exigency involves meeting with a third party, the agency may contact the individual or entity with whom the employee is meeting for purposes of verifying a meeting or appointment schedule and verifying the information provided in the employee's statement regarding the meeting between the employee and the specified individual or entity. No additional information may be requested by the agency.
  2. An agency may contact an appropriate unit of the Department of Defense to request verification that a covered service member is on covered active duty or call to covered active duty status. No addi tional information may be requested by the agency.
Can an employee substitute unpaid leave during FMLA with paid leave?

FMLA leave is not a paid leave category and defaults as leave without pay. An employee may elect to substitute his/her annual leave and/or sick leave, consistent with current laws and OPM's regulations for using annual and sick leave, for unpaid leave under FMLA. The employee may also be eligible to use leave earned from the Voluntary Leave Transfer Program, Leave Bank Program, advanced annual leave, and/or advanced sick leave. An employee may not retroactively substitute paid time off for leave without pay previously taken under the FMLA.

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