The Family and Medical Leave Act of 1993 (FMLA), amended by the implementation of new family leave entitlements enacted under the National Defense Authorization Act of 2008, provides covered employees with an entitlement to 12 workweeks of unpaid leave during any 12-month period for certain family and medical reasons. As a general rule, full-time and part-time employees are covered if they have 12 months of service in the personnel system in which they are currently working (Federal or Trust), and 1,250 hours over the previous 12 months, in appointments which were not limited to one year or less. The 12 months are not required to be recent or consecutive. Employees serving under appointments limited to one year or less, or under intermittent appointments, are not covered.
Basic Leave Entitlement
FMLA requires covered employers to provide up to 12 weeks of unpaid, job-protected leave to eligible employees for the following reasons:
- For incapacity due to pregnancy, prenatal medical care or childbirth;
- To care for the employee's child after birth, or placement for adoption or foster care;
- To care for the employee's spouse, son or daughter, or parent, who has a serious
health condition; or
- For a serious health condition that makes the employee unable to
perform the employee's job.
Military Family Leave Entitlements
Eligible employees with a spouse, son, daughter, or parent on active duty or call to active duty status in the National Guard or Reserves in support of a contingency operation may use their 12-week leave entitlement to address certain qualifying exigencies. Qualifying exigencies may include attending certain military events, arranging for alternative childcare, addressing certain financial and legal arrangements, attending certain counseling sessions, and attending post-deployment reintegration briefings.
FMLA also includes a special leave entitlement that permits eligible employees to take up to 26 weeks of leave to care for a covered service member during a single 12-month period. A covered service member is a current member of the Armed Forces, including a member of the National Guard or Reserves, who has a serious injury or illness incurred in the line of duty on active duty that may render the service member medically unfit to perform his or her duties for which the service member is undergoing medical treatment, recuperation, or therapy; or is in outpatient status; or is on the temporary disability retired list.
Under certain conditions, FMLA may be taken intermittently, or employees may work under a reduced work schedule by taking family and medical leave for part of each workweek. Employees must make reasonable efforts to schedule leave for planned medical treatment so as not to unduly disrupt the employer's operations. Leave due to qualifying exigencies may also be taken on an intermittent basis.
An employee may elect to substitute other paid leave, as appropriate, for any of the 12 weeks of unpaid leave under the FMLA. Current law and regulations governing granting and using annual and sick leave (including advanced leave) apply.
Job Benefits and Protection
During FMLA leave, the employee may continue health benefits coverage; however, for periods of unpaid FMLA leave, s/he will be responsible for paying the employee contribution upon return to work. Upon return from FMLA leave, most employees will be restored to their original or equivalent positions with equivalent pay, benefits and other employment terms. Use of FMLA leave will not result in the loss of any employment benefit that accrued prior to the start of an employee's leave.
An employee is required to provide notice of his or her intent to take family and medical leave not less than 30 days before leave is to begin when the leave is foreseeable. When 30 days notice is not possible, the employee must provide notice as soon as practicable and generally must comply with normal call-in procedures.
A supervisor may require medical certification for FMLA leave taken to care for an employee's spouse, son, daughter, or parent who has a serious health condition or for the serious health condition of the employee. Employees must provide sufficient information for the employer to determine if the leave may qualify for FMLA protection and the anticipated timing and duration of the leave. Sufficient information may include that the employee is unable to perform job functions; the family member is unable to perform daily activities; the need for hospitalization or continuing treatment by a health care provider; or circumstances supporting the need for military family leave. Employees also must inform the employer if the requested leave is for a reason for which FMLA leave was previously taken or certified. Employees may also be required to provide periodic recertification supporting the need for leave.
WH-380-E, Certification of Health Care Provider for Employee's Serious Health Condition (PDF format)
WH-380-F, Certification of Health Care Provider for Family Member's Serious Health Condition (PDF format)
WH-384, Certification of Qualifying Exigency for Military Family Leave (PDF format)
WH-385, Certification for Serious Injury or Illness of Covered Service Member - for Military Family Leave (PDF format)
If a Federal employee believes he or she has been denied any of the rights and requirements of FMLA, the employee may file a grievance under Smithsonian or negotiated grievance procedures.
If a Trust Fund employee believes he or she
has been denied any of the rights and requirements of FMLA, the employee may file a complaint to the Department of Labor or file suit in Federal court.
Any questions regarding these entitlements should be directed to Linda McDonald in the Human Resources Department at 496-7605.
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