(a) The Family and Medical Leave Act of 1993, as amended, (FMLA or
Act) allows "eligible" employees of a covered employer to take job-
protected, unpaid leave, or to substitute appropriate paid leave if the
employee has earned or accrued it, for up to a total of 12 workweeks in
any 12 months (see Sec. 825.200(b)) because of the birth of a child
and to care for the newborn child, because of the placement of a child
with the employee for adoption or foster care, because the employee is
needed to care for a family member (child, spouse, or parent) with a
serious health condition, because the employee's own serious health
condition makes the employee unable to perform the functions of his or
her job, or because of any qualifying exigency arising out of the fact
that the employee's spouse, son, daughter, or parent is a covered
military member on active duty (or has been notified of an impending
call or order to active duty) in support of a contingency operation. In
addition, "eligible" employees of a covered employer may take job-
protected, unpaid leave, or substitute appropriate paid leave if the
employee has earned or accrued it, for up to a total of 26 workweeks in
a "single 12-month period" to care for a covered servicemember with a
serious injury or illness (see Sec. 825.127(c)). In certain cases,
FMLA leave may be taken on an intermittent basis rather than all at
once, or the employee may work a part-time schedule.
(b) An employee on FMLA leave is also entitled to have health
benefits maintained while on leave as if the employee had continued to
work instead of taking the leave. If an employee was paying all or part
of the premium payments prior to leave, the employee would continue to
pay his or her share during the leave period. The employer may recover
its share only if the employee does not return to work for a reason
other than the serious health condition of the employee or the
employee's covered family member, the serious injury or illness of a
covered servicemember, or another reason beyond the employee's control.
(c) An employee generally has a right to return to the same
position or an equivalent position with equivalent pay, benefits, and
working conditions at the conclusion of the leave. The taking of FMLA
leave cannot result in the loss of any benefit that accrued prior to
the start of the leave.
(d) The employer generally has a right to advance notice from the
employee. In addition, the employer may require an employee to submit
certification to substantiate that the leave is due to the serious
health condition of the employee or the employee's covered family
member, due to the serious injury or illness of a covered
servicemember, or because of a qualifying exigency. Failure to comply
with these requirements may result in a delay in the start of FMLA
leave. Pursuant to a uniformly applied policy, the employer may also
require that an employee present a certification of fitness to return
to work when the absence was caused by the employee's serious health
condition (see Sec. Sec. 825.312 and 825.313). The employer may delay
restoring the employee to employment without such certificate relating
to the health condition which caused the employee's absence.
[60 FR 2237, Jan. 6, 1995; 60 FR 16383, Mar. 30, 1995; 73 FR 68074, Nov. 17, 2008]
