FMLA Supervisor FAQ

• Do I have the option to deny FMLA if our department is really busy?

  No. If the employee is eligible and approved for FMLA, they must be able to take the leave.

• Does the employee return to the same position after FMLA leave?

  Yes. Under FMLA, the employee is returned to the same or equivalent position upon return from leave. Exceptions might exist if the employee’s job would have been lost if he or she had been working, such as through position elimination, layoff, non-renewal, program curtailment, or cause that would otherwise support dismissal.

• When should I start the FMLA process?

  You should contact HR to initiate the FMLA process when an employee informs you they need time off for a reason that may be covered by the FMLA. The employee may not be as clear as to mention the “FMLA” when asking for the time off, but you should be aware that the reason may qualify for FMLA. When in doubt, contact HR.

  Sometimes an employee may not ask for the time off or you may not immediately know if an absence could be covered by the FMLA. You should monitor your employee’s attendance. You should consult with HR when an employee is off for his or herself or a covered family member for:

   

  • A period of incapacity of more than three - five consecutive full calendar days (which can include absences Friday and the following Monday), and any subsequent treatment or period of incapacity relating to the same condition that also involves either treatment two or more times within 30 days, or treatment by a health care provider on at least one occasion, which results in a regimen of continuing treatment under the supervision of the health care provider.

  • Any period of incapacity due to pregnancy or prenatal care.

  • Any period of incapacity or treatment for such incapacity due to a chronic serious health condition. A chronic serious health condition is one which requires periodic visits (i.e., at least twice per year) for treatment by a health care provider, which continues over an extended period of time, and may cause episodic rather than a continuing period of incapacity.

  • Permanent or long-term conditions

  • Conditions requiring multiple treatments

  • Hospital Care: Inpatient care (i.e. an overnight stay) in a hospital, hospice, or residential medical care facility, including any period of incapacity or subsequent treatment in connection with or consequent to such inpatient care

  • Absence Plus Treatment: A period of incapacity of more than three consecutive calendar days (including any subsequent treatment or period of incapacity relating to the same condition), that also involves:

  • Treatment two or more times by a health care provider, by a nurse or physician’s assistant under direct supervision of a health care provider, or by a provider of health care services (e.g., physical therapist) under orders of , or on referral by, a health care provider, or

  • Treatment by a health care provider on a least one occasion which results in a regimen of continuing treatment under the supervision of the health care provider.

  • Pregnancy: Any period of incapacity due to pregnancy or for the prenatal care.

  • Chronic Conditions: Requiring Treatments: A chronic condition which

  • Requires periodic visits for treatment by a health care provider or by a nurse or physician’s assistant under the direct supervision of a health care provider;

  • Continues over an extended period of time (including recurring episodes of a single underlying condition); and

  • May cause episodic rather than a continuing period of incapacity (e.g. asthma, diabetes, epilepsy, etc)

  • Permanent/Long-Term Conditions Requiring Supervision: A period of incapacity which is permanent or long-term due to a condition for which treatment may not be effective. The employee or family member must be under the continuing supervision of, but need not be receiving active treatment by, a health care provider. Examples include Alzheimer’s, a severe stroke, or the terminal stages of a disease.

  • Multiple Treatments (Non-Chronic Conditions): Any period of absence to receive multiple treatments (including any period of recovery) by a health care provider or by a provider of health care services under the orders of, or on referral, by a health care provider, either for restorative surgery after an accident or other injury, or for a condition that would likely result in a period of incapacity of more than three consecutive calendar days in the absence of medical intervention or treatment such as cancer (chemotherapy, radiation, etc.) severe arthritis (physical therapy), kidney disease (dialysis).

  • Care for a covered family member returning from covered active duty with the Armed Forces or a veteran of the Armed Forces that has sustained an injury or illness.

• Is it my responsibility to confirm the employee is eligible for FMLA?

  HR will likely need your assistance to determine whether the employee is eligible; that is, has the employee been employed at least 12 months, has the employee worked at least 1,250 hours in the 12-month period preceding the leave, and how many FMLA hours if any have been taken this calendar year by the employee.

• I am a supervisor and one of my employees has been out unexpectedly for a week.  Is this covered by FMLA?

  It could be. You should try communicating with the employee. You should also contact HR so they can send the employee the appropriate paperwork to determine whether the absence is covered by FMLA.

• I am a supervisor and one of my employees regularly takes sick leave for appointments and treatment.  Is this covered by FMLA?

  It could be if the underlying condition qualifies. You should contact HR so they can send the appropriate paperwork to determine whether the absences are covered by FMLA.

• Must I allow an employee an extension of leave beyond FMLA?

  There may be instances where it could be reasonable to extend a leave of absence after an employee has used all of the allowable time under the FMLA. Please work with HR in these situations. It is best to keep in touch with the employee before the FMLA ends so there are no surprises at the end of the leave.

• What if the employee is unable to perform some or all of the position after FMLA leave?

  The FMLA provides only the 12/26 weeks of leave. If the employee is unable to perform his or her position at the end of the FMLA leave, HR should engage in an interactive discussion with the employee regarding what limitations the employee has and what would help the employee return to work. Consult with HR, as it may be necessary to initiate an accommodation process. An employee who cannot perform the essential functions and/or description of the position with or without accommodation may not be eligible to return to work.

• What if I have a temporary light duty position available for the employee - do I still have to allow the FMLA leave?

  Yes. You can certainly offer the light duty work, but if the employee is otherwise eligible for FMLA leave, the employee may choose to take the FMLA leave and not accept the light duty work.

• What if a faculty or staff member gives notice of intent not to return?  Are their benefits terminated?

  Yes, as long as the notice is “unequivocal” or definite. One form of an unequivocal notice is when the employee submits a written letter for resignation. The individual has the option to continue coverage through COBRA following termination of employment.

   

  There is also no right to reinstatement once the employee “unequivocally” or definitely gives notice that he or she will not return. Consult with HR before concluding on your own that you have received unequivocal notice.

• Can I discharge an employee who is on FMLA leave?

  Yes. Termination of employment may occur while an employee is on approved FMLA leave if the employee’s job would have been lost if he or she had been working, such as through position elimination, layoff, non-renewal, program curtailment, or cause that would otherwise support dismissal. In this situation, consult with HR before taking any action.

   

  You cannot discharge an employee simply because he or she is taking FMLA leave, or otherwise retaliate against the employee for taking FMLA leave.

• What about transferring a staff member to another position?

  You may consider temporarily transferring a staff member to an alternative position in order to accommodate intermittent absences or a request for a reduced schedule, provided that it provides “equivalent pay and benefits” and the transfer is permitted by policy or contract. Before pursuing this possibility, consult with HR to make sure you are not violating any contracts or other policies.

• Can an employee request sick leave or vacation for a serious health condition and NOT count this toward the FMLA period?

  No, such a request should automatically count as FMLA leave. You should record such vacation or sick leave as FMLA if covered.

University Human Resources developed this information for the convenience of OSU employees. It is a brief interpretation of more detailed and complex materials. If further clarification is needed, the actual law and policy should be consulted as the authoritative source. OSU continually monitors benefits, policy, and procedures and reserves the right to change, modify, amend, or terminate programs at any time, with or without notice.