FMLA Frequently Asked Questions
Q. How much leave am I entitled to under the FMLA?
A. Eligible employees are entitled to 12 workweeks of unpaid leave over a 12-month period for an eligible FMLA event. back to top
Q. How is the 12-month period calculated under the FMLA?
A. The 12-month period is measured forward from the date any employee’s first FMLA leave begins.
Ex. Employee takes FMLA leave beginning on March 15, 2009. They exhaust their entitlement of 12 weeks in July 2009. The employee is not eligible for another 12 weeks of FMLA leave until March 15, 2010. back to top
Q. If an employee worked for NC State 10 years ago, must NC State count that time towards the one year service requirement?
A. No. Employment periods prior to a break in service of seven years or more need not be counted in determining whether the employee has been employed by the agency for at least 12 months. back to top
Q. Both my spouse and I are employed with NC State. If we have a baby, can both of us take up to 12 weeks of leave under the FMLA?
A. Yes back to top
Q. Must I use comp time to cover my absence under the FMLA?
A. Yes. In compliance with the OSP FLSA policy, all agencies must require FLSA “subject” employees to use overtime/compensatory time prior to using vacation/bonus leave. back to top
Q. Are there conditions that will not be covered under the FMLA?
A: Yes, treatment does not include routine physical examinations, eye examinations, or dental examinations. Ordinarily, unless complications arise, the following are examples of conditions that do not meet the definition: common cold, flu, ear aches, upset stomach, minor ulcers, headaches other than migraine, routine dental or orthodontia problems, periodontal disease, cosmetic treatments, etc. The following may meet the definition of a serious medical condition, if all other conditions of this section are met: restorative dental or plastic surgery after an injury or removal of cancerous growths, mental illness resulting from stress or allergies, or treatment from substance abuse. back to top
Q: If a holiday occurs during my leave under FMLA, will that day count against my 12 workweek FMLA leave entitlement?
A: Yes. Holidays occurring during an FMLA period of a full week count toward the FMLA leave entitlement. Holidays occurring during a partial week of FMLA leave do not count against the FMLA leave entitlement, unless the employee was otherwise scheduled and expected to work during the holiday.
Advisory Note: If NC State is closed for a holiday, and it’s a paid holiday for campus, then the day(s) will count toward the employee’s FMLA leave entitlement. If NC State is closed, but an employee must use accrued leave to be paid for the day(s), then the days that the agency is closed do not count against the employees’ FMLA leave entitlement. back to top
Q. Must I take my leave continuously or can I take it intermittently?
A. Leave under the FMLA can be taken either continuously or intermittently.
Leave may be taken intermittently or on a reduced schedule for the following:
- (1) When medically necessary, to care for the employee’s child, spouse, or parent who has a serious health condition, or because the employee has a serious health condition. (This would also apply to next of kin to care for a service member.)
- (2) Because of any qualifying exigency arising out of the fact that the spouse, son daughter, or parent is on active duty or has been notified of an impending call or order to active duty.
- (3) When leave is taken after childbirth or for adoption/foster care, the employee may take leave intermittently or on a reduced schedule only if the agency agrees. back to top
Q. If I work a reduced schedule, how much time will be counted against my FMLA leave entitlement?
A. Only time actually taken as leave may be counted towards the FMLA leave entitlement. back to top
Q. What happens if my leave of absence needs to begin before I'm eligible for Family and Medical leave, but I'm only a few days (or weeks) short of qualifying? (i.e. Has not met the one year of service requirement or has not satisfied the 1040 or 1250 hours worked in the 12 months prior to the leave of absence).
A. If an employee has enough accrued leave to remain in a paid leave status up to the date they would satisfy both FML eligibility requirements, then they could begin their Family and Medical Leave after they are already on approved leave.
For example: an employee needs to have a major surgical procedure one week before they have worked 1040 hours in the 12 month period. If the employee has enough accrued leave to cover the 40 hours of leave (one work week for a 1.0 FTE employee), then the employee would become eligible for FML. The employee would be on a paid leave of absence for one week, and then begin a paid or unpaid (depending on remaining accrued leave) family and medical leave for the rest of the time his/ her treating physician requires them to be absent from work for the medical condition. The 12 month allotment will begin when the employee first becomes eligible, not when the employee first goes out of work.
If an employee is on leave without pay or goes into a leave without pay status prior to meeting both eligibility requirements, then the employee would not be able to become eligible for FML once his/her leave of absence has commenced. back to top
Q. I am a 9 month recurring employee who takes an unpaid leave of absence between May and August of each year. If I go out on FMLA before my unpaid leave of absence begins, will I continue to use my FMLA time even though I don’t work during the period between May and August?
A. No. The FMLA clock will not continue to count time during the regular time when 9 month recurring employees are not working (May – August). Once the employee returns from the unpaid leave of absence in August, and if they still require FMLA leave, the FMLA clock will then resume. back to top
Q. What happens if I fail to submit my healthcare provider certification, recertification request information or requested clarification information?
A. Absent extraordinary circumstances, failure to provide the healthcare provider certification or recertification information within 15 calendar days may result in denial of your request for Family and Medical Leave. Absent extraordinary circumstances, failure to provide the requested clarification information within 7 calendar days will also result in denial of your request for Family and Medical Leave. back to top
Q. I was approved for FMLA for my own serious medical condition. Must I provide a Healthcare Provider Certification each time I am going to be out due to my illness?
A. No. All FMLA absences for the same qualifying reason are considered a single leave. Employee eligibility as to that reason for leave does not change during the applicable 12-month period. back to top
Q. I do not want my department or supervisor to know the specifics of my medical condition. Do I have to provide the Healthcare Provider Form to my supervisor or can I provide it directly to the Leave Administrator?
A. If there are concerns regarding submitting the Healthcare Provider information to the supervisor and/or department, the Healthcare Provider Form can be submitted directly to the Leave Administration Unit. back to top
Q. Can I have my physician fax the Healthcare Provider Form directly to the Leave Administration Unit?
A. Yes. back to top
Q. My doctor charges a fee to complete the Health Care Provider Form, and I don’t want to pay for it. What can I do?
A: Unfortunately, some physicians do charge a fee to complete the Health Care Provider Form(s). NC State will not pay for this fee, nor is this fee reimbursable by NC State. If there are issues with regards to payment of fees for the Healthcare Provider Certification, the employee should immediately contact the Leave Administration Unit to discuss their options. Failure to do so and subsequent failure to provide the required documentation will result in delay or denial of the request for FMLA leave. back to top
Q. Can my employer contact my doctor if the information provided is unclear or incomplete?
A. The Leave Administration Unit is permitted, with an employee’s authorization, to contact a healthcare provider for purposes of clarification and authenticity of the medical certification. back to top
Q. Can my supervisor contact my doctor to get additional information?
A. Under no circumstances may a supervisor contact an employee’s healthcare provider for information. back to top
Q. If there is a problem with my medical certification, must I receive notice of the problem before my FMLA request is denied?
A. Yes. The Leave Administration Unit will contact you regarding any missing or incomplete information and give you 7 calendar days to cure any deficiency. back to top
Q. When can the department request a second opinion?
A. A department that has reason to doubt the validity of a medical certification may require the employee to obtain a second opinion with the following conditions:
- The department bears the expenses, including reasonable “out of pocket” travel expenses.
- The department may not require the employee or family member to travel outside normal commuting distance except in very unusual circumstance.
- Pending receipt of the second (or third) opinion, the employee is provisionally entitled to FLMA leave.
- If the certifications do not ultimately establish the employee’s entitlement to FMLA leave, the leave shall not be designated as FMLA leave.
- The department is permitted to select the health care provider to furnish the second opinion, but the selected health care provider may not be employed on a regular basis by NC State. back to top
Q. What happens if my department requests a second opinion and it provides a different prognosis/diagnosis than my treating physician?
A. If the opinions of the employee’s and the department’s designated health care providers differ, the department may require the employee to obtain certification from a third health care provider, again at the department’s expense. This third opinion shall be final and binding. The third health care provider must be designated or approved jointly by the department and the employee.
Upon request by the employee, the department is required to provide the employee with a copy of the second and third medical opinions within two business days. back to top
Q. When can NC State require an employee to provide recertification of
their illness or injury?
A. All requests for recertification are handled by the Leave Administration Unit. In general, NC State may request recertification no more often than every 30 days unless:
- an extension is requested,
- circumstances described by the previous certification have changed significantly, or
- the agency receives information that casts doubt upon the employee’s stated reason for the absence.
If the minimum duration specified on a certification is more than 30 days, the agency may not request recertification until that minimum duration has passed unless one of the conditions above is met. back to top
Q. Can NC State require a recertification for lifelong or conditions which are chronic but will last for an unknown duration conditions every 30 days?
A. Generally no. NC State may only request recertification for ongoing, chronic conditions every six months in conjunction with an absence. However, if circumstances warrant, NC State can request recertification on a more frequent basis. back to top
Q. What happens to my health insurance benefits while I’m out on Family Medical Leave?
A. The university will continue to maintain the employee’s medical insurance during the course of the FMLA leave. However, the employee remains responsible for any payments they would normally make, including premiums included with the PPO Plus plan and dependant premiums. back to top
Q. What happens if I fail to pay my premiums while on FMLA leave?
A. If the employee’s failure to make the premium payments leads to a lapse in coverage, NC State must restore the employee, upon return to work, to the health coverage equivalent to that which the employee would have had if leave had not been taken. Upon reinstatement, the employee will not be subject to any waiting periods or preexisting conditions limitations. back to top
Q. When can NC State recover health insurance premiums paid for employees who fail to return to work after an approved period of FMLA leave?
A. The agency may recover the premiums if the employee fails to return to work after the period of leave to which the employee is entitled has expired for a reason other than the continuation, recurrence or onset of a serious health condition or other circumstances beyond the employee’s control. For this purpose, return to work is defined as 30 calendar days; therefore, if the employee resigns any time within 30 days after the return to work, the insurance premium may be recovered unless the reason for the resignation is related to the continuation, recurrence or onset of a serious health condition or other circumstances beyond the employee’s control. back to top
Q. If I go out on FMLA, is my job and my position protected?
A. Yes. You will be reinstated to the same position held when the leave began or one of like pay grade, pay, benefits and other conditions of employment. back to top
Q. Will I still accrue annual and sick time if I am out on FMLA?
A. You will continue to accrue sick and annual time if you remain in a paid status during the course of your leave. No benefits will be accrued during any period of leave without pay. back to top
Q. Can an employee be subject to a reduction in force while taking FMLA leave?
A. Reinstatement is not required if an employee is reduced in force during the course of taking FMLA leave. NC State bears the burden of proving that the reduction would have occurred had the employee not been on FMLA leave. back to top
Q. Must an employee provide a return to work note prior to returning to work from a FMLA related absence?
A. Yes. An employee must provide their supervisor with a note from their medical provider authorizing their release to return to work. A return to work note is not required if the leave is approved as intermittent FMLA leave. back to top
Q. What happens if an employee does not provide a return work note following their continuous leave under the FMLA policy?
A. An employee will not be allowed to return to work without written authorization from their treating physician. Failure to provide the return to work note will result in the employee being sent home. If an employee is sent home, they will need to use their own leave (if available to cover) or take a leave without pay during this time period. back to top
Q. What happens if an employee is released to return to work from continuous FMLA leave but has restrictions?
A. In these situations, supervisors should immediately contact the Leave Administration for guidance. back to top
Q. What happens if an employee fails to return to work after the period of authorized leave?
A. Unless an extension has been requested or other circumstances exist which affect their return, failure to return may be considered as a resignation. In these situations, supervisors should immediately contact the Leave Administration for guidance. back to top
Q. If an employee provides unequivocal notice of intent not to return to work, what obligations does the department have under FMLA?
A. The departmental obligations under FMLA to maintain health benefits (subject to COBRA requirements) and to restore the employee cease. However, these obligations continue if an employee indicates he or she may be unable to return to work but expresses a continuing desire to do so. back to top
Q. Can I get a second opinion if an employee submits a healthcareprovider form for leave to care for an injured servicemember with a serious illness or injury?
A. No. back to top
Q. What types of absences are covered under the “qualifying exigency” provision?
A. When an absence is necessary because a covered service member of the National Guard or Reserves is on active duty or has been called to active duty, following is a list of reasons an employee may take leave because of a qualifying exigency.
- (1) Short-notice deployment – leave to address any issue that arises from the fact that the employee is notified of an impending call or order to active duty seven or less calendar days prior to the date of deployment. This leave can be used for a period of seven calendar days beginning on the date the employee is notified.
- (2) Military events and related activities – leave to attend any official ceremony, program or event sponsored by the military and to attend family support and assistance programs and informational briefings sponsored or promoted by the military, military service organizations or the American Red Cross that are related to the active duty or call to active duty status of the employee.
- (3) Childcare and school activities – leave to arrange alternative childcare when the active duty or call to active duty status necessitates a change in the existing childcare arrangement, to provide childcare on an urgent, immediate need basis when the need arises from the active duty or call to active duty, to enroll the child in or transfer the child to a new school or day care facility when necessitated by the active duty or call to active duty, and to attend meetings with staff at a school or a day care facility when such meeting are necessary due to circumstances arising from the active duty or call to active duty status.
- (4) Financial and legal arrangements – leave to make or update financial or legal arrangements to address the employee’s absence such as preparing and executing financial and healthcare powers of attorney, transferring bank account signature authority, enrolling in DEERS, obtaining military identification cards or preparing or updating a will or living trust.
- (5) Counseling – leave to attend counseling provided by someone other than a healthcare provider for oneself, for the covered military member or for the child provided that the need for counseling arises from the active duty or call to active duty status of a covered military member.
- (6) Rest and recuperation – leave to spend time with a covered military member who is on short-term, temporary rest and recuperation leave during the period of deployment. Eligible employees may take up to five days of leave for each instance of rest and recuperation.
- (7) Post-deployment activities – leave to attend arrival ceremonies, reintegration briefings and events, and any other official ceremony or program sponsored by the military for a period of 90 days following the termination of the employee’s active duty and to address issues that arise from the death of a covered military member while on active duty status, such as meeting and recovering the body of the military member and making funeral arrangements, and
- (8) Additional activities where the agency and employee agree to the leave – leave to address other events which arise out of the covered military member’s active duty or call to active duty status provided the agency and employee agree that such leave shall qualify as an exigency, and agree to both the timing and duration of such leave. back to top
Q. If an employee submits a request for leave based on qualifying exigency and provides a completed certification, what additional information can NC State require?
A. If an employee submits a complete and sufficient certification to support his or her request for leave because of a qualifying exigency, NC State may not request additional information from the employee. However, if the qualifying exigency involves meeting with a third party, NC State may contact the individual or entity with whom the employee is meeting for purposes of verifying a meeting or appointment schedule and the nature of the meeting between the employee and the specified individual or entity. The employee's permission is not required in order to verify meetings or appointments with third parties, but no additional information may be requested by the agency. NC State also may contact an appropriate unit of the Department of Defense to request verification that a covered military member is on active duty or call to active duty status; no additional information may be requested and the employee's permission is not required. back to top
Q. What happens if I do not take the full 26 workweeks of leave under the covered servicemember provisions?
A. If an eligible employee does not take all of his or her 26 workweeks of leave entitlement to care for a covered service member during this “single 12-month period,” the remaining part of his or her 26 workweeks of leave entitlement to care the covered servicemember is forfeited. back to top
Q. Who approves my request for FMLA?
A. The Leave Administration Unit is responsible for all approvals and denials related to FMLA.back to top
Q. My employee has plenty of accrued sick leave to cover his/ her absence; why does he/ she need to go out on Family and Medical Leave?
A. Designation time as FMLA protects the University and the employee from adverse action stemming from the use of leave during FMLA approved absences. The key in designating FMLA leave is the qualifying reason(s), not the employee’s election or reluctance to use FMLA leave or to use all, some or none of the accrued leave. The agency’s designation must be based on information obtained from the employee or an employee’s representative (e.g., spouse, parent, physician, etc.). Failing to use FMLA to cover absences could result in abuse of leave issues, and other employment related actions that may not be beneficial to the employee. back to top
Q. If NC State fails to notify an employee that his/ her time away from work has been designated as FMLA leave, can the employer count the time he/ she has already been off against the 12 weeks of FMLA leave?
A. NC State may retroactively designate leave as FMLA leave with appropriate notice to the employee provided that the failure to timely designate leave does not cause harm or injury to the employee. In all cases where leave would qualify for FMLA protections, NC State and the employee can mutually agree that leave be retroactively designated as FMLA leave. back to top
Q. When can NC State designate leave that has already been taken as FMLA after the employee has returned to work?
A. NC State can designate leave that has already been taken as FMLA without employee approval under the following circumstances:
• If an employee is out for a reason that qualifies for FMLA leave and NC State does not learn of the reason for the leave until the employee returns to work. NC State may designate the leave as FMLA leave within two business days of the employee’s return; or
• If NC State has provisionally designated the leave under FMLA leave and is awaiting receipt from the employee of documentation; or,
• That the failure to timely designate leave does not cause harm or injury to the employee. back to top
Q. If an employee returns to work after an absence but does not communicate that his/ her absence may have been covered under FMLA, what are the consequences?
A. Assuming the supervisor did not have sufficient information regarding the absence, the employee is not entitled to the protection of the FMLA if the employee gives notice of the reason for the leave later than two days after returning to work. back to top
Q. Can a request for FMLA be denied?
A: Yes. NC State may deny the request of FMLA leave, if the employee fails to meet the eligibility requirements, or fails to fulfill any obligations. Obligations include: providing supporting medical certification (i.e. the healthcare provider form) or comply with submission deadlines. back to top
Q. I am receiving treatment under Workers’ Compensation. Can I still be covered under FMLA?
A: No. If an employee is out on authorized workers’ compensation leave receiving pay from the Workers’ Compensation carrier, the time away from work does not count against his/ her FMLA entitlement. back to top
Q. My employee has not been compliant with his/ her use of leave under the FMLA or has failed to return to work following their FMLA leave. Can we discipline or terminate the employee?
A: Supervisors/ departments should contact the Leave Administration Unit and/or Employee Relations prior to taking any adverse action against the employee. back to top
Q. Can I discipline an employee who is taking FMLA leave?
A. Supervisors/Departments can still manage poor work performance unrelated to the use of FMLA leave through the normal performance management process. Supervisors/Departments should contact the Leave Administration Unit and/or Employee Relations prior to taking any adverse action against the employee. back to top
Q. Can I grieve the denial of a request for FMLA leave?
A. Denial of leave requested pursuant to the Family and Medical Leave Act is a grievable issue. Employees may appeal under the State Personnel Act. back to top
Have Additional Questions? Contact Us
Cassy Deal, SPHR
HR, Leave Consultant