Introduction
The Family and Medical Leave Act was enacted on February 5, 1993 as a means of balancing the demands of the workplace with the needs of families, and promoting the stability, integrity, and economic security of families in a manner that accommodates the legitimate interests of employers. FMLA entitles an "eligible" employee to take up to 12 workweeks of leave during any 12-month period for certain family and medical reasons. FMLA maintains eligible employees' pre-existing group health insurance coverage during periods of FMLA leave and restores most eligible employees to their same or an equivalent position at the conclusion of their FMLA leave. The following is a brief summary of the major provisions of the federal law and its state application:

1. Eligibility
To be eligible for FMLA leave, employees must have one year of aggregate State service and have been paid for at least 1,250 hours during the prior 12 months. All State employment, for example, Merit and higher education, should be counted.

2. Provisions
Eligible employees may take up to 12 workweeks FMLA leave during an FMLA 12- month period. The eligibility period begins on the first day of FMLA leave and runs for 365 days.

3. Reasons for Using FMLA
Leave shall be granted for any of the following reasons: to care for an employee's child after birth, or placement for adoption or foster care*; to care for an employee's spouse, son, daughter, or parent who has a serious health condition; or for a serious health condition that renders employees unable to perform their job. Under certain circumstances, FMLA leave may be taken on an intermittent basis, or employees may work a part-time schedule. Such accommodations shall be made only when medically necessary or when agencies agree to a reduced leave schedule.

*Employee FMLA leave entitlement for birth, adoption or placement for foster care expires one year following the date of birth, adoption or placement.

4. Qualifying Conditions
Specific conditions will determine what qualifies as a serious health condition. At least one of the following shall be satisfied: inpatient hospital care; absence from work or school for more than 3 consecutive calendar days that involves continuing care by a health care provider; continuing treatment for a chronic serious health condition; continuing treatment for a serious health condition that if not treated would result in incapacity for more than 3 days; and any period of incapacity prenatal care.

The 3 day waiting period does not apply for pregnancy, chronic serious health conditions, or for multiple treatments.

Common maladies like colds, flu, earaches, headaches other than migraine, etc., are not considered to be serious health conditions. Plastic surgery after injury or removal of a cancerous growth would be considered a serious health condition. Mental illness may be a serious health condition. Cosmetic surgery is not considered a serious health conditions unless in-patient hospital care is required.

Continuing treatment means treatment two or more times, or one treatment resulting in a regimen of continuing treatment under the supervision of a health care provider, or continuing supervision but not necessarily being actively treated for a severe long-term or chronic condition.

5. Definitions
To determine who is covered under FMLA, the following definitions shall apply: "spouse" means a husband or wife as defined or recognized under Delaware law for the purposes of marriage. (Delaware does not recognize common-law marriages.) "Parent" means a biological parent or an individual who stands or stood "in loco parentis," meaning, "in place of parent," to the employee when the employee was a child. (This does not extend to a parent "in-law.") "Son" or "daughter" means a biological, adoptive, step, or foster child, a legal ward, or a child of a person standing "in loco parentis" under age 18 or age 18 or older and incapable of self-care because of a mental or physical disability.

6. Application
Employees on FMLA shall use available accrued annual and/or accrued sick leave with the exception of one workweek of annual leave and one workweek of sick leave. Eligibility to use sick leave is governed by Merit Rule 5.3.

An employee may be on a workers' compensation absence due to an on-the-job injury or illness which also qualifies as a serious health condition under FMLA. The workers' compensation absence and FMLA leave does not run concurrently unless requested by the employee. If employees are offered a "light duty" assignment, they are permitted but not required to accept the position. Consequently, they may no longer qualify for payments from the workers' compensation benefit plan, but are still entitled to continue on FMLA either until the employee is able to return to the same job or until the 12-week FMLA leave entitlement is exhausted. FMLA leave taken on a part-time or intermittent basis is charged on a pro-rated basis.

7. Notice and Medical Certification
Employees are required to provide advanced leave notice and medical certification whenever practical. Ordinarily, 30 days advance notice shall be given when leave is "foreseeable." Medical certification to support a request for FMLA leave is required and the employer may also require second or third opinions (at the employer's expense) and a "fitness-for-duty" report to return to work.

Employees are responsible for providing the qualifying reason. Employers are required to make the FMLA designation within 2 business days. This designation may be verbal, but shall be followed up in writing. No retroactive designation can be made unless the employer did not know the reason for leave or has requested or challenged the medical certification. Medical re-certification may be required every 30 days.

8. Job Benefits and Protection
The FMLA provides maintained employee health care coverage for the duration of the leave period. Employees who fail to return to work after their FMLA leave entitlement has been exhausted shall be responsible for their State share under their existing "group health plan" unless they fail to return to work due to their own or eligible family member's serious health condition, or for some other reason beyond their control. Employees are responsible for re-payment of State contributions toward coverage for any unpaid leave. Coverage will be reinstated upon an employee's return without waiting until the next open enrollment period. It is unlawful for an employer to interfere with, restrain, or deny the exercise of any right provided under FMLA. Additionally, an employer cannot discharge or discriminate against any person for opposing any practice made unlawful by FMLA or for their involvement in any proceeding under or relating to FMLA. The U.S. Department of Labor is authorized to investigate and resolve complaints of FMLA violations and an eligible employee may bring a civil action against an employer for violations.

FMLA does not affect any federal or state law prohibiting discrimination, or supersede any state or local law or collective bargaining agreement which provides greater family or medical leave rights.

For assistance in applying FMLA, please refer to Merit Rule 5.7, or your agency personnel office. Human Resource Management is available to answer questions and provide technical guidance.

FMLA Medical Certification Form for requesting leave (.pdf)

OMB/HRM Revised 01.2006