With the many provisions for sick leave Federal employees can usually cover any necessary absence for illnesses without losing pay.
However, if you or a family member are experiencing a serious illness, and you’ve either used up all other forms of leave, or you simply want to save paid leave for future use, then you have the right to invoke the Family and Medical Leave Act (FMLA) of 1993.
- you invoke your entitlement to FMLA, your supervisor must approve leave without pay (LOWP) for you (or substituted leave) and you are guaranteed the time off. Also, when you come back to work, the FMLA guarantees that your job – or a job that’s equivalent in every significant respect – is waiting for you.
Every operating unit in an agency has to notify their employees every year of what they are entitled to under FMLA.
Almost every Federal employee who has at some time completed 12 months of service is entitled to use the FMLA. Where you work at Commerce, the type of appointment you have, your pay grade and other issues have no impact on the FMLA - - everyone has the right to use it. Even if you’re in a probationary status, you can use FMLA as long as you have had 12 months Federal service previously. Details on how this impacts probationary status are found here.
Your supervisor has no choice about approving or denying FMLA leave; if you’re eligible, your decision to invoke it will be approved. Also, supervisors can’t coerce you in any way about your decision.
The FMLA leave benefit for regular full-time employees is 12 full weeks of unpaid leave in any 12-month period.
- Unpaid leave for part-time workers, those on irregular schedules, or employees whose schedules shift from part-time to full-time is different.
When You Can Take Leave Under the FMLA
There are 4 basic situations in which you can invoke and use FMLA leave:
- Childbirth and newborn care
- Adoption or accepting a child for foster care
- Caring for a family member (a son, daughter, spouse, or your parent) who has a serious health condition
- Undergoing care and treatment for your own serious health condition.
There is one additional circumstance in which you can use FMLA leave: while awaiting approval of your request for disability retirement.
How You Can Take FMLA Leave
You would normally take as much LWOP (or substituted paid leave) as you need (up to the 12 week limit for full time employees) to take care of the problem, and the time would be taken all at once.
There are other options, though. You might:
- Take FMLA leave intermittently to take care of a family member or undergo treatment yourself, or in connection with birth, adoption, or for foster care.
- Choose to work a reduced schedule, with the time you work paid, and the remainder covered by FMLA. This means that you work less than your full-time tour of duty and the rest of your tour is made up by LWOP under FMLA or by substituted paid leave.
You can elect to use substituted leave as long as you notify your supervisor that you plan to do so and you do it before the date the paid leave begins. Substituted leave is:
- Accrued annual or sick leave
- Donated annual leave
- Advanced annual or sick leave
Requesting FMLA Leave
You must notify your supervisor 30 days in advance (or give as much notice as possible) of your intent to invoke your entitlement under FMLA. If you don’t, your use of it could be delayed.
Remember, your supervisor can’t allow you to use FMLA unless you request it.
One important note: you can’t invoke FMLA after the fact, if you initially used sick leave or some other paid leave status to cover your absence. However, if you or your personal representative are physically or mentally incapable of invoking your entitlement to FMLA leave during the entire period in which you are absent from work for an FMLA-qualifying purpose, you can retroactively invoke your entitlement (with sufficient documentation for your supervisor) within two workdays after returning to work.
Documentation You May be Asked to Provide
Your supervisor may require documentation in connection with your request for FMLA leave.
You may be asked to provide documents to support your use of FMLA leave adoption of foster care. For example:
- Documents about childbirth or adoption from a health care provider,
- Adoption papers and agency documents
- Court documents
- Administrative agreements about placement of a foster child
- Attorneys’ records.
You may also be required to provide certification from a health care provider that supports your FMLA request. The certification must include:
- The dates the condition began
- How long it may last
- The fact that you are unable to perform some or all of your duties
- The schedule of treatment
- If you are providing care for family members, the certification should state that your support is necessary
Your supervisor has the right to ask for a second opinion, from a health care provider outside the Department, if they have questions about the original documentation. If the two certifications disagree, a third may be required.
A medical examination (though not treatment) may also be required for you or a family member being cared for to substantiate the request for FMLA, and follow up certification may also be required for long-term conditions.
You may also have to report periodically on your status and plans to return to work.
If you have been using FMLA for your own serious illness, when you want to return to work you may have to provide medical certification that you’re healthy and able to perform your job duties.
When FMLA Ends
If you use all 12 weeks of FMLA, you have no more available within that 12-month period (that began with the first day you used FMLA).
This also applies to the use of FMLA for the birth, adoption, or foster care of a child; and your use of FMLA for those purposes has to take place within 12 months of the birth or placement of the child.
If you don’t use all 12 weeks, the exact number of FMLA hours you use is deducted, and the rest is still be available for any future needs during the same 12-month period (dating from the first day you use unpaid leave).
Holidays and other non-workdays that happen while you’re using FMLA do not count; they are not deducted from the total you’re entitled to.
Alternative Position. You might be offered an alternative position if you’re using FMLA intermittently or are working a reduced schedule. You may also request an alternative position, though granting one is up to your supervisor. This is only temporary, however; you still have the right to return to your original job.
Relation to Other Types of Leave. FMLA leave is available in addition to accrued annual leave, sick leave, advanced annual leave, advanced sick leave, donated leave, compensatory time, and regular LWOP (which your supervisor may or may not approve).
- You can only use other types of leave in the amounts accrued and up to the limits allowed for them under other policies.
- You can use FMLA leave in combination with other types of leave, but other types of leave have to be approved by your supervisor. The key is that you have to decide in advance to use paid leave instead of FMLA leave without pay, and tell your supervisor that’s what you want to do. If you’re using paid leave while under the provisions of FMLA, your hours will all be deducted from the 12 weeks FMLA you’re allowed.
Impact of FMLA on Your Benefits. Health coverage continues while you’re on FMLA, but you have to pay the employee contribution while you’re not in pay status. If you prefer, you can make that payment when you return from FMLA leave.
Retirement and life insurance continues while you’re on FMLA, and you don’t have to make up retirement contributions (although you can if you want to).
Leave Accrual Reductions. Employees lose their biweekly leave accruals of annual and sick leave if they have certain amounts of non-paid time like LWOP or AWOL. This applies while using LWOP under the FMLA. So if you use a full pay period (or 80 hours) of LWOP, then you’ll lose your leave accruals for that pay period. Each time you use an amount of non-paid time that is equal to 80 hours (or a multiple of 80 - - 160, 240, etc.), you again lose your accruals.