1.  Who is eligible to take FMLA leave?

2.  Under what kinds of circumstances is my employer required to grant family or medical leave?

3.  How much leave am I entitled to under FMLA?

4.  How is the 12-month period calculated under FMLA?

5.  Do the 12 months of service with the State of North Carolina have to be continuous or consecutive?

6.  Do the 1,040 hours in pay status include paid leave time or other absences from work?

7.  Does the law require paid time off?

8.  Do I have to use all of my earned sick leave before going on unpaid FML?

9.  Can I choose to use vacation or bonus leave in lieu of unpaid FML?

10.  Can my supervisor require me to use compensatory leave earned for working overtime before going on unpaid FML?

11.  Does workers' compensation leave count against my FMLA leave entitlement?

12.   If my employer fails to tell me that the leave is FMLA leave, can the employer count the time I've already been off against the 12 weeks of FMLA leave?

13.  Who is considered an immediate "family member" for purposes of taking FMLA leave?

14.   May I take FMLA leave for visits to a physical therapist, if my doctor prescribes the therapy?

15.   Do I have to give my employer my medical records for leave due to a serious health condition?

Employees are eligible to take FMLA leave if they:

• have worked for the State of North Carolina for at least 12 months, and
• have been in pay status for at least 1,040 hours (full-time and part-time employees working 20 or more hours) or 1,250 hours (part-time employees working less than 20 hours a week, temporary and intermittent employees) during the previous 12 months.

2.   Under what kinds of circumstances is my employer required to grant family or medical leave?

Employers are required to grant FMLA to eligible employees:

• For birth of a son or daughter, and to care for the newborn child;
• For placement with the employee of a son or daughter for adoption or foster care;
• To care for the employee's spouse, son, daughter, or parent with a serious health condition; or
• Because of an employee's own serious health condition that makes it impossible for the employee to perform one or more of the essential functions of the job.

3. How much leave am I entitled to under FMLA?

If you are an "eligible" employee, you are entitled to 12 weeks of leave for certain family and medical reasons during a 12-month period.

4. How is the 12-month period calculated under FMLA?

The agency head for each State agency/university is responsible for designating the 12-month period by selecting one of the following four options:

1. The calendar year;
2. Any fixed 12-month "leave year" such as a fiscal year, a school year, or a year starting on the employee's anniversary date, etc.
3. The 12-month period measured forward from the date any employee's first FMLA leave begins; or
4. A "rolling" 12-month period measured backward from the date an employee uses FMLA leave.

Since the 12-month period may vary for each state agency/university, you will need to review your agency/university internal FMLA policy or contact your agency/university Human Resources Office to obtain information concerning the 12-month period used by your employer.

5. Do the 12 months of service with the State of North Carolina have to be continuous or consecutive?

No. The 12 months do not have to be continuous or consecutive. All time worked for any agency/university of the State of North Carolina is counted towards the 12 months. All periods of Military Leave (paid or unpaid) and Workers' Compensation Leave are also counted towards the 12 months of State service.

6.  Do the 1,040 hours in pay status include paid leave time or other absences from work?

The 1,040 hours include hours actually worked for the employer and all periods of approved paid leave such as vacation, bonus, sick, compensatory and holidays. Also, all periods of Military Leave (paid or unpaid) and Workers' Compensation leave are counted towards the 1,040 hours. Periods of unpaid leave are not included.

7.   Does the law require paid time off?

No. The FMLA only requires unpaid leave. However, the law permits an employer to elect, or the employer may require the employee, to use accrued paid leave, such as vacation or sick leave, for some or all of the FMLA leave period. When paid leave is substituted for unpaid FMLA leave, the State of North Carolina will count the period of paid leave against the 12-week FMLA leave entitlement if the employee is properly notified of the designation when the leave begins. This shall be applied consistently in all State agencies/universities. Agency heads and supervisors do not have the authority to allow an employee to exhaust paid leave before beginning FMLA leave, if it has been determined that the reason for using paid leave meets the FMLA eligibility requirements.

8.  Do I have to use all of my earned sick leave before going on unpaid FML?

The State of North Carolina sick leave requirements vary based on the reason for FML as follows:

1. Employee Illness - the employee is required to use all earned sick leave prior to going on unpaid FML.
2. Illness of a child/spouse/parent - the employee has the option to exhaust all or any portion of sick leave prior to unpaid FML.
3. Birth - the employee has the option to exhaust all or any portion of sick leave during the period of disability only.
4. Adoption - the employee has the option to exhaust up to a maximum of 30 days within 12 months of possession of the child.
5. Foster care - the employee cannot use sick leave.

9. Can I choose to use vacation or bonus leave in lieu of unpaid FML?

Yes. The State of North Carolina allows employees the option of using all or any portion of vacation or bonus leave prior to going on unpaid FML. Use of paid leave must be decided upon the initial request for leave and used prior to going on unpaid FML. For example, an employee cannot request to exhaust two weeks of leave, then go on unpaid leave, then be reinstated to exhaust two more weeks of leave, then go on unpaid leave, etc. The employee also cannot choose to go on unpaid FML for 12 weeks and then be reinstated to exhaust paid leave after the FML benefit has ended.

10.   Can my supervisor require me to use compensatory leave earned for working overtime before going on unpaid FML?

Not if you are an employee who is subject to the Fair Labor Standards Act (FLSA) for determining overtime compensation. The federal law prohibits an employer from requiring an FLSA subject employee to use compensatory leave for FML. Under no circumstances can use of compensatory leave be charged against a subject employee's 12-week FML entitlement; therefore, an employee's compensatory leave earned will be maintained for use upon reinstatement from FML. The compensatory leave will be paid out in a lump sum if the employee separates (cannot or does not return from FML) or if the compensatory leave is not used within 12 months from the date the overtime is performed.

11.   Does workers' compensation leave count against my FMLA leave entitlement?

No. The federal law allows an employer to choose to run workers' compensation leave and FMLA leave concurrently; however, the State of North Carolina has chosen to not count any leave taken under the workers' compensation program as FMLA leave. This policy shall be applied consistently in all State agencies/universities.

12.   If my employer fails to tell me that the leave is FMLA leave, can the employer count the time I've already been off against the 12 weeks of FMLA leave?

In most situations, your employer cannot count leave as FMLA leave retroactively. Remember, you must be notified in writing that an absence is being designated as FMLA leave. If your employer was not aware of the reason for the leave, leave may be designated as FMLA leave retroactively only while the leave is in progress or within two business days of your return to work.

13.   Who is considered an immediate "family member" for purposes of taking FMLA leave?

An employee's spouse, children (son or daughter), and parents are immediate family members for the purpose of FMLA. The term "parent" does not include a parent "in-law". The terms son or daughter do not include individuals age 18 or over unless they are "incapable of self-care" because of a mental or physical disability that limits one or more of the "major life activities" as those terms are defined in regulations issued by the Equal Employment Opportunity Commission (EEOC) under the Americans with Disabilities Act (ADA). The FMLA definition for immediate "family member" is different from the definition used for the State of North Carolina 's Sick Leave Policy.

14.   May I take FMLA leave for visits to a physical therapist, if my doctor prescribes the therapy?

Yes. FMLA permits you to take leave to receive "continuing treatment by a health care provider," which can include recurring absences for therapy treatments such as those ordered by a doctor for physical therapy after a hospital stay or for treatment of severe arthritis.

15.   Do I have to give my employer my medical records for leave due to a serious health condition?

No. You do not have to provide medical records. Your employer may; however, request that, for any leave taken due to a serious health condition, you provide a medical certification confirming that a serious health condition exists.

16. My doctor charges a fee for filling out the FMLA Medical Certification Form. Is my employer responsible for paying this fee?

No. All fees charged for completing the medical certification form and recertification forms are your responsibility.

17.   Can my employer require me to return to work before I exhaust my leave?

Subject to certain limitations, your employer may deny the continuation of FMLA leave due to a serious health condition if you fail to fulfill any obligations to provide supporting medical certification. Your employer may not, however, require you to return to work early by offering you a light duty assignment.

18.   Are there any restrictions on how I spend my time while on leave?

Yes. The State of North Carolina has a Secondary Employment Policy, which requires agency/university approval of all outside employment. The Secondary Employment Policy would also apply to employees while on paid or unpaid leave. Otherwise, your employer may not restrict your activities. The protections of FMLA will not; however, cover situations where the reason for leave no longer exists, where the employee has not provided required notices or certifications, or where the employee has misrepresented the reason for leave.

19.   Can my employer make inquiries about my leave during my absence?

Yes, but only to you. Your employer may ask you questions to confirm whether the leave needed or being taken qualifies for FMLA purposes, and may require periodic reports on your status and intent to return to work after leave. Also, if your employer wishes to obtain another opinion, you may be required to obtain additional medical certification at your employer's expense, or recertification during a period of FMLA leave. Your employer may have a health care provider representing them to contact your health care provider, with your permission, to clarify information in the medical certification or to confirm that it was provided by the health care provider.

20.   Can my employer refuse to grant me FMLA leave?

If you are an "eligible" employee who has met FMLA's notice and certification requirements (and you have not exhausted your FMLA leave entitlement for the year), you may not be denied FMLA leave.

21.   Will I lose my job if I take FMLA leave?

It is unlawful for any employer to interfere with or restrain or deny the exercise of any right provided under this law. Your employer cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions.

22.   Are there other circumstances in which my employer can deny me FMLA leave or reinstatement to my job?

Yes. Your FMLA Benefits including reinstatement rights will be terminated if:

1. you are reduced in force (laid off);
2. you give unequivocal notice that you do not intend to return to work (resignation);
3. you are unable to return to work and have exhausted your 12 weeks of FMLA leave in the designated "12 month period"; or
4. you fail to provide the medical certification of fitness for duty if required before reinstatement.

23.  Can my employer dismiss me for complaining about a violation of FMLA?

No. Nor can your employer take any other adverse employment action on this basis. It is unlawful for any employer to discharge or otherwise discriminate against an employee for opposing a practice made unlawful under FMLA.

24.   Under what circumstances is leave designated as FMLA and counted against my total entitlement?

In all circumstances, it is your employer's responsibility to designate leave taken for an FMLA reason as FMLA leave. The designation must be based upon information furnished by you. Leave cannot be designated as FMLA leave after the leave has been completed and you have returned to work, except if:

1. Your employer is awaiting receipt of the medical certification to confirm the existence of a serious health condition;
2. Your employer was unaware that the leave was for an FMLA reason, and subsequently acquires information from you when you request additional or extensions of leave; or,
3. Your employer was unaware that the leave was for an FMLA reason, and you notify your employer within two days after return to work that the leave was FMLA leave.

25.  What are the consequences if I fail to make timely health plan premium payments while on family and medical leave without pay?

Your employer is not obligated to maintain your health insurance coverage if your premium payment is more than 30 days late. Your employer must provide you with written notification advising you that coverage will be dropped on a specified date at least 15 days after the date of the letter unless payment is received by that date.

26.   What are the consequences if I decide to not return to work at the end of my FMLA leave?

Your employer may recover the premium payments for health insurance coverage if you don't return to work for a reason other than the continued serious health condition or other circumstances beyond the your control (i.e. layoff, spouse unexpectedly transferred more than 75 miles from the your worksite, etc). Return to work is defined as 30 calendar days; therefore, if you resign within 30 days after completion of your FMLA leave, then your employer may still recover the insurance premium payments.

27.   Can my employer terminate me for disciplinary reasons after I have requested FML or while I'm on FML?

Yes, under certain circumstances. Courts have found no violation of the FMLA in cases in which the situation that led to disciplinary termination began before the request for FML was made or before the employee began taking FML. In some cases, courts have found no violation of the FMLA where employees were on FML and the employer discovered information that justified termination; even though the employee was on FML. The primary prohibition the FMLA places on employers is not to "retaliate" or otherwise discriminate against an employee solely because that employee has requested or is taking FML. The FMLA does not prohibit employers from taking appropriate actions that would have occurred in the absence of requesting or taking FML.