September 06, 2022
The DOL released two new additional fact sheets in early August 2022 regarding job-protected leave under the Family and Medical Leave Act (FMLA) for two major uses of FMLA leave: (1) for the serious health condition for an employee or an employee’s family member and (2) for the birth, placement, and bonding with a child.
- Fact Sheet #28P: Taking Leave from Work When You or Your Family Member Has a Serious Health Condition Under the FMLA. Fact Sheet #28P explains when a mental or physical illness, injury or other condition meets the FMLA’s requirements as a serious health condition, and provides illustrative examples.
- Fact Sheet #28Q: Taking Leave from Work for Birth, Placement, and Bonding with a Child Under the FMLA. Fact Sheet #28Q explains when employees may use FMLA leave for birth, adoption, foster child placement, and for bonding with a child. The fact sheet explains that both mothers and fathers have the same right to take FMLA leave for the birth, placement, or for bonding with a child. The fact sheet notes that FMLA leave is permitted for foster care. The fact sheet also notes that if spouses work for the same employer, FMLA leave is limited to a combined total of 12 workweeks of leave in a 12-month period for birth, placement, and bonding with a new child, among other reasons. The fact sheet refers readers to a related DOL fact sheet on FMLA leave (Fact Sheet #28L) for further information.
About FMLA Leave
FMLA leave is available to eligible employees of covered employers:
- Eligible employees are eligible if they work for a covered employer for at least 12 months, have at least 1,250 hours of service for the employer during the 12 months before the leave, and work at a location where the employer has at least 50 employees within 75 miles.
- Covered employers under the FMLA are private employers if they employ 50 or more employees in 20 or more workweeks in the current or preceding calendar year, including joint employers or successors in interest to another covered employer. Public agencies, including local, state, or Federal government agencies, and public and private elementary and secondary schools are FMLA covered employers regardless of the number of employees.
The FMLA requires employers to continue an employee’s group health benefits under the same conditions as if the employee had not taken leave and restore the employee to the same or virtually identical position at the end of the leave period. FMLA leave may be unpaid or may be used at the same time as employer-provided leave. An employer may require an employee to submit a certification from a health care provider to support the employee’s need for FMLA leave. The information on the certification required to be sufficient to support the need for a leave, but does a diagnosis is not required.
These Q&As interpret existing law and regulations and therefore are effective immediately.
Covered employers should review the fact sheet and confirm their FMLA policies are compliant with the latest guidance. The FMLA requires employers to keep employee medical record confidential and separate from routine personnel files. Employers must also ensure employee records and confidentiality protocols are compliant with other applicable laws such as the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA).
- DOL Fact Sheet #28P: Taking Leave from Work When You or Your Family Member Has a Serious Health Condition Under the FMLA
- DOL Fact Sheet #28Q: Taking Leave from Work for Birth, Placement, and Bonding with a Child Under the FMLA
- DOL Fact Sheet #28: The Family and Medical Leave Act
If you have questions, comments, or concerns about these or other regulatory and compliance issues, please contact us.
We provide this material for informational purposes only; it is not a substitute for legal advice.