FMLA DECISION TREE

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FMLA DECISION TREE
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Is Employer Covered?
50 OR MORE EMPLOYEES IN THE UNITED STATES
FOR
20 OR MORE WORK WEEKS IN CURRENT OR PRECEDING
CALENDAR YEAR
NO
YES
DO NOT HAVE TO COMPLY WITH FMLA
MUST POST FMLA NOTICE (WH PUBLIC 1420)
3
Is Employee Eligible? Does the employee work in
the U.S.?
HAS EMPLOYEE WORKED FOR EMPLOYER FOR A MINIMUM OF
12 MONTHS?
HAS EMPLOYEE ACTUALLY WORKED FOR A MINIMUM OF
1250 HOURS IMMEDIATELY BEFORE LEAVE COMMENCES?
ARE THERE 50 OR MORE EMPLOYEES WITHIN 75 MILES OF
EMPLOYEES WORK LOCATION?
NO?
YES?
EMPLOYEE IS NOT ELIGIBLE
IS EMPLOYEE TAKING LEAVE FOR FMLA REASON?
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Is Leave for FMLA Reasons?
BIRTH OF CHILD OR CARE OF NEWBORN CHILD?
ADOPTION OR PLACEMENT OF CHILD FOR FOSTER CARE?
If for one of the above reasons, leave must
begin within 12 months from birth or adoption,
intermittent leave at employees option only if
the employer agrees
BECAUSE OF SERIOUS HEALTH CONDITION WHICH
PREVENTS EMPLOYEE FROM PERFORMING AN
ESSENTIAL FUNCTION OF HIS/HER JOB?
BECAUSE OF SERIOUS HEALTH CONDITION OF
EMPLOYEES SPOUSE, CHILD OR PARENT?
NO?
YES?
EMPLOYEE IS NOT ELIGIBLE
WHAT IS SERIOUS HEALTH CONDITION?
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What is a Serious Health Condition?
Is it an injury, illness or physical or mental
condition that involves
INPATIENT CARE REQUIRES AN OVERNIGHT STAY IN A
HOSPITAL OR SIMILAR FACILITY, INCLUDING
INCAPACITY OR TREATMENT IN CONNECTION WITH THE
INPATIENT CARE
OR
CONTINUING TREATMENT BY A HEALTH CARE PROVIDER
OF A SERIOUS HEATLH CONDITION WHICH INVOLVES ONE
OR MORE OF THE FOLLOWING a) A PERIOD OF
INCAPACITY OF MORE THAN THREE CONSECUTIVE
CALENDAR DAYS AND SUBSEQUENT TREATMENT OR
INCAPACITY RELATING TO THE SAME CONDITION THAT
ALSO INVOLVES (i) TREATMENT TWO OR MORE TIMES
BY HEALTH CARE PROVIDERS, OR SERVICES ORDERED BY
HEALTH CARE PROVIDER OR (ii) TREATMENT BY
HEATLH CARE PROVIDER ON AT LEAST ONE OCCASION
WHICH RESULTS IN CONTINUING TREATMENT UNDER
SUPERVISION OF HEALTH CARE PROVIDER.
OR
b) INCAPACITY DUE TO PREGNANCY OR PRENATAL CARE
OR
c) A CHRONIC CONDITION INCAPACITY DUE TO
PERIODIC VISITS TO HEALTH CARE PROVIDER FOR
TREATMENT AND CONTINUES OVER A PERIOD OF TIME
AND MAY CAUSE EPISODES OF INCAPACITY, RATHER THAN
A CONTINUING PERIOD OF INCAPACITY
OR
d) A PERMANENT OR LONG TERM CONDITION
INCAPACITY DUE TO CONDITION FOR WHICH TREATMENT
MAY NOT BE EFFECTIVE.
OR
e) MULTIPLE TREATMENTS ABSENCE TO RECEIVED
MULTIPLE TREATMENTS BY HEALTH CARE PROVIDER.
YES
NO
EMPLOYEE NOT ELIGIBLE FOR FMLA LEAVE
HAS EMPLOYEE ALREADY EXHAUSTED HIS/HER LEAVE?
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Has Employee Exhausted His/Her Leave?
HAS EMPLOYEE TAKEN 12 WEEKS OF LEAVE IN ANY 12
MONTH PERIOD?
12 MONTH PERIOD MAY BE COMPUTED USING ANY OF THE
FOLLOWING METHODS
A) CALENDAR YEAR B) ANY FIXED12-MONTH YEAR
(SPECIFY_____________) C) 12 MONTHS MEASURED
FORWARD FROM DATE OF FIRST USE OF FMLA LEAVE D)
ROLLING 12 MONTHS MEASURED BACKWARD FROM DATE OF
FIRST USE
NO?
YES?
EMPLOYEE NOT ELIGIBLE FOR FMLA LEAVE
HAS EMPLOYEE GIVEN SUFFICIENT NOTICE?
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Has Employee Given Sufficient Notice?
IS NEED FOR LEAVE FORSEEABLE?
YES
NO
DID EMPLOYEE GIVE MINIMUM 30 DAY NOTICE PRIOR TO
USE OF LEAVE
NOTICE MUST BE GIVEN ASAP BY EMPLOYEE
YES
NO
PROPER NOTICE GIVEN BY EMPLOYEE
EMPLOYER MAY DELAY TAKING OF LEAVE UNTIL 30
DAYS AFTER EMPLOYEE GIVES NOTICE
MAY EMPLOYEE TAKE INCREMENTAL OR INTERMITTENT
LEAVE?
HAS EMPLOYER GIVEN REQUIRED NOTICE?
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Has Employer Given Required Notice?
HAS LEAVE BEEN DESIGNATED AS FMLA QUALIFYING
LEAVE (PAID OR UNPAID) AND THE EMPLOYEE NOTIFIED
WITHIN 2 BUSINESS DAYS OF LEAVE REQUEST IF
FEASIBLE?
EMPLOYER MUST NOTIFY EMPLOYEE ABOUT SPECIFIC
OBLIGATIONS OF EMPLOYEE AND EXPLAIN CONSEQUENCE
OF NOT MEETING THEM WITHIN REASONABLE PERIOD OF
TIME SEE OPTIONAL FORM WH381
NO
YES
LEAVE MAY COUNT AGAINST FMLA ENTITLEMENT
LEAVE MAY NOT COUNT AGAINST FMLA LEAVE
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May Employee Take Incremental/Intermittent Leave?
IS LEAVE FOR BIRTH, ADOPTION OR FOSTER CARE?
NO
YES
INCREMENTAL, REDUCED SCHEDULE, INTERMITTENT LEAVE
NOT REQUIRED BUT IS PERMITTED IF EMPLOYER AGREES
IS LEAVE TAKEN FOR SERIOUS HEALTH CONDITION OF
EMPLOYEE?
IS LEAVE FOR THE SERIOUS HEALTH CONDITION OF
EMPLOYEES SPOUSE, CHILD OR PARENT?
NO
YES
INTERMITTENT, REDUCED SCHEDULE, INCREMENTAL LEAVE
NOT ALLOWED
IS THERE A MEDICAL NECESSITY FOR LEAVE?
A) Employer may require employee to provide
written certification from health care
provider B) Employer may contact employees
health care provider (with employees permission)
to clarify or authenticate certification C)
Employer may require 2nd and 3rd opinion at
employers expense
IF MEDICAL NECESSITY, INTERMITTENT OR REDUCED
LEAVE MAY BE TAKEN WITHOUT EMPLOYERS AGREEMENT
FOR TREATMENT AND/OR RECOVERY FROM SERIOUS HEALTH
CONDITION