Family and Medical Leave (FMLA)

To be eligible for FMLA, an employee must work for the employer* for at least 12 months and must have worked at least 1,250 hours in the 12 months immediately preceding the date FMLA leave begins. The 12 months of employment are not required to be consecutive in order for the employee to qualify for FMLA leave. In general, only employment within seven years is counted unless the break in service is (1) due to an employee’s fulfillment of military obligations, or (2) governed by a collective bargaining agreement or other written agreement.

*Please note: The State of Kansas is considered the same employer, so any service at a SOK employer counts towards the 12-month requirement.

The FMLA allows leave for an eligible employee when the employee is needed to care for certain qualifying family members (child, spouse or parent) with a serious health condition. (The definition of son or daughter includes individuals for whom the employee stood or is standing “in loco parentis.”

Spouse means a husband or wife as defined or recognized in the state where the individual was married and includes a same-sex or common law marriage. Spouse also includes a husband or wife in a marriage that was validly entered into outside of the United States if the marriage could have been entered into in at least one state.

Parent means a biological, adoptive, step or foster parent, or any other individual who stood in loco parentis to the employee when the employee was a child. This term does not include parents “in law.”

Child means a biological, adopted, or foster child, stepchild, legal ward, or child of a person standing in loco parentis, who is either under age 18, or age 18 or older and incapable of self-care because of a mental or physical disability at the time that FMLA leave is to commence. For more information, see Fact Sheet #28K. For military family leave, the child of an eligible employee may be of any age.

In Loco Parentis includes those in the role of a parent with day-to-day responsibilities to care for or financially support a child. Employees who have no biological or legal relationship with a child may stand in loco parentis to the child and be entitled to FMLA leave. For more information, see Fact Sheet #28B.

Additionally, an eligible employee is entitled to FMLA leave to care for a person who stood in loco parentis to that employee when the employee was a child, even if the person does not have a biological or legal relationship to the employee. For more information, see Fact Sheet #28 C.

Next of kin of a current servicemember is the nearest blood relative, other than the current servicemember’s spouse, parent, or child.

The Family and Medical Leave Act (FMLA) provides eligible employees up to 12 workweeks of unpaid leave a year and requires group health benefits to be maintained during the leave as if employees continued to work instead of taking leave. Employees are also entitled to return to their same or an equivalent job at the end of their FMLA leave.

The FMLA also provides certain military family leave entitlements. Eligible employees may take FMLA leave for specified reasons related to certain military deployments of their family members. Additionally, they may take up to 26 weeks of FMLA leave in a single 12-month period to care for a covered service member with a serious injury or illness.

The most common serious health conditions that qualify for FMLA leave are:

• Conditions requiring an overnight stay in a hospital or other medical care facility.
• Conditions that incapacitate you or your family member (for example, unable to work or attend school) for more than three consecutive days and have ongoing medical treatment (either multiple appointments with a health care provider, or a single appointment and follow-up care such as prescription medication);
• Chronic conditions that cause occasional periods when you or your family member are incapacitated and require treatment by a health care provider at least twice a year; and
• Pregnancy (including prenatal medical appointments, incapacity due to morning sickness, and medically required bed rest)

If you are experiencing an FMLA related event, and you qualify for FMLA, “employers cannot delay designating leave as FMLA leave, where it otherwise qualifies, even if an employee asks." https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/2019_03_14_1A_FMLA.pdf

The 1,250 hours includes only those hours worked for the employer. Paid leave, unpaid leave, and holidays are not included, including leave used for FMLA purposes.

The FMLA only requires unpaid leave. However, the law permits an employee to elect, or the employer to require the employee, to use accrued paid vacation leave, paid sick or family leave for some or all of the FMLA leave period. An employee must follow the employer’s normal leave rules in order to substitute paid leave. When paid leave is used for an FMLA-covered reason, the leave is FMLA-protected.

When it is medically necessary, employees may take FMLA leave intermittently – taking leave in separate blocks of time for a single qualifying reason – or on a reduced leave schedule – reducing the employee’s usual weekly or daily work schedule. When leave is needed for planned medical treatment, the employee must make a reasonable effort to schedule treatment so as not to unduly disrupt the employer’s operation.

Leave to care for or bond with a newborn child or for a newly placed adopted or foster child may only be taken intermittently with the employer’s approval and must conclude within 12 months after the birth or placement.

You must still report your FMLA related event to human resources so they can officially verify eligibility and the required paperwork can be processed.

An employer may require that the need for leave for a serious health condition of the employee or the employee’s immediate family member be supported by a certification issued by a health care provider. The employer must allow the employee at least 15 calendar days to obtain the medical certification.

An employer must advise the employee if it finds the certification is incomplete and allow the employee a reasonable opportunity to cure the deficiency. The employer must state in writing what additional information is necessary to make the certification complete and sufficient and must allow the employee at least seven calendar days to cure the deficiency, unless seven days is not practicable under particular circumstances despite the employee’s diligent good faith efforts.

An employer may require a second or third medical opinion (at the employer’s expense) if he or she has reason to doubt the validity of the medical certification.

No. An employer may not require an employee to sign a release or waiver as part of the medical certification process. The regulations specifically state that completing any such authorization is at the employee’s discretion. Whenever an employer requests a medical certification, however, it is the employee’s responsibility to provide the employer with a complete and sufficient certification. If an employee does not provide either a complete and sufficient certification or an authorization allowing the health care provider to provide a complete and sufficient certification to the employer, the employee's request for FMLA leave may be denied.

Yes. As a condition of restoring an employee who was absent on FMLA leave due to the employee’s own serious health condition, an employer may have a uniformly applied policy or practice that requires all similarly situated employees who take leave for such conditions to submit a certification from the employee’s own health care provider that the employee is able to resume work. Under the regulations, an employer may require that the fitness-for-duty certification address the employee's ability to perform the essential functions of the position if the employer has appropriately notified the employee that this information will be required and has provided a list of essential functions. Additionally, an employer may require a fitness-for-duty certification up to once every 30 days for an employee taking intermittent or reduced schedule FMLA leave if reasonable safety concerns exist regarding the employee's ability to perform his or her duties based on the condition for which leave was taken.

If an employee fails to submit a properly requested medical certification in a timely manner (absent sufficient explanation of the delay), FMLA protection for the leave may be delayed or denied. If the employee never provides a medical certification, then the leave may not be designated as FMLA leave.

If an employee fails to submit a properly requested fitness-for-duty certification, the employer may delay job restoration until the employee provides the certification. If the employee never provides the certification, he or she may be denied reinstatement.

• If you know your employee is experiencing a qualifying medical event (an absence of 3 or more consecutive days due to the employee’s or employee’s family member’s medical condition), complete the FMLA referral form or request that your HR Liaison complete the form on your behalf. Qualifying events include:
  • The birth of a child or placement of a child with the employee for adoption or foster care,
  • The care for a child, spouse, or parent who has a serious health condition,
  • A serious health condition that makes the employee unable to work, and
  • Reasons related to a family member’s service in the military, including.
    • Qualifying exigency leave – leave for certain reasons related to a family member’s foreign deployment, and
    • Military caregiver leave – leave when a family member is a current servicemember or recent veteran with a serious injury or illness.

• A supervisor is not allowed request access to an employee’s medical condition or symptoms.
• View the full FMLA process.

When it is medically necessary, employees may take FMLA leave intermittently – taking leave in separate blocks of time for a single qualifying reason – or on a reduced leave schedule – reducing the employee’s usual weekly or daily work schedule. When leave is needed for planned medical treatment, the employee must make a reasonable effort to schedule treatment so as not to unduly disrupt the employer’s operation.

Leave to care for or bond with a newborn child or for a newly placed adopted or foster child may only be taken intermittently with the employer’s approval and must conclude within 12 months after the birth or placement.

If the employee returns to regularly scheduled hours when FMLA is exhausted, no action is needed.

If the employee is unable to return to their regularly scheduled hours after their FMLA time is exhausted, please notify the FMLA and Leave Specialist immediately by emailing fmla@ksu.edu.

• If you know an employee is experiencing a qualifying medical event (an absence of 3 or more consecutive days due to the employee’s or employee’s family member’s medical condition), complete the FMLA referral form and provide it to the FMLA Specialist. Qualifying events include:
  • The birth of a child or placement of a child with the employee for adoption or foster care,
  • The care for a child, spouse, or parent who has a serious health condition,
  • A serious health condition that makes the employee unable to work, and
  • Reasons related to a family member’s service in the military, including.
    • Qualifying exigency leave – leave for certain reasons related to a family member’s foreign deployment, and
    • Military caregiver leave – leave when a family member is a current servicemember or recent veteran with a serious injury or illness.
• Track employees absences that are related to the FMLA event beginning at the time the event began.
• View the full FMLA process.

5-15-5

• • 5 business days to notify the employee when they are eligible after being notified of the qualifying event.
  • 15 calendar days for the employee to return the completed certification.
  • 5 business days after receiving the signed certification to designate FMLA.

Yes, there is a federally regulated process to notifying the employee of their eligibility whether they are eligible or not.

The paid parental leave program is a different leave program than FMLA. Therefore, eligibility for each program is determined using its own criteria. If an employee is eligible for both parental leave and FMLA, they will run concurrently. If they are eligible for one and not the other, they will run independently of one another.

Employers may not request a certification for FMLA leave to bond with a newborn child or a child placed for adoption or foster care. However, a certification will be requested for any scenario in which the employee is requesting FMLA to care for a family member’s serious health condition. If the employee is strictly using FMLA to bond with a child, a certification will not be requested.

The Notice of Eligibility & Rights and Responsibilities and the Designation Notice are still required documents for the qualifying event of bonding with a newborn child or a child placed for adoption or foster care, and leave used will be documented towards the employee’s FMLA leave entitlement.