FMLA Resource Center

Flight Attendant FMLA Resource Center

FMLA Checklist FMLA Flight Crew FAQs State FMLA Laws
FMLA Glossary of Terms Employee DOL FMLA Form Family Member DOL FMLA Form

Checklist for FMLA

This Checklist is offered to provide you with a general procedure for determining your eligibility for Family Medical Leave and the steps to take to secure your leave, if eligible.  We caution you that your airline may have particular forms and procedures that may be required (to the extent allowed under the FMLA) and that the requirements and procedures of Third Party Administrators (TPA) working for your airline and the terms of your AFA Contract may apply, as well.  We recommend you research and educate yourself on any airline or TPA specific procedures and talk to your AFA leaders and EAP Chairs for further guidance.

Additionally, this Checklist is not intended to be exhaustive -- covering all details and requirements of the FMLA and guidance issued thereunder.  There are factual details, circumstances, and situations that are not described below that may be covered under or be relevant to your FMLA eligibility.  The Checklist is a general guide only.

Do you have a personal or family medical situation that will require you to take time off of work?  If so, here are the steps to take:

I. Eligibility for FMLA 

A. Determine if you are an eligible employee

You must be able to say yes to each of the following:

  • Have you worked for your airline for at least 12 months?
  • Have you worked (or been paid for) 60% of the applicable total monthly guarantee during the 12 months prior to your leave (not including vacation or sick days)?
  • Have you worked (or been paid for) at least 504 hours during the 12 months prior to your leave (not including vacation or sick days)?

B. Determine if your situation qualifies

At least one of the following must apply to your leave request.  Some other situations may qualify for FMLA, and certain exceptions may apply as well, but these are the most common:

  • Condition requiring an overnight stay in the hospital or other medical facility.
  • Condition that incapacitates you or a family member for more than three consecutive days and requires ongoing medical treatment.
  • Chronic condition that causes occasional periods when you or your family member are incapacitated and require treatment by a health care provider at least twice a year (Also known as intermittent leave).
  • Pregnancy.
  • New child -- through birth, adoption, or fostering, this includes bonding time.
  • Military deployment of a family member or other covered military injury or illness.

Is the leave you’re requesting for yourself or a family member?  Please note that there are differences in application paperwork and rules depending on the type of leave you’re requesting.

Family members who qualify include:

  • Children under age 18, including biological, adopted, foster, step, and legal wards
  • Children age 18 or older who are incapable of self-care
  • Spouses (As defined by state law.  Domestic partners may be eligible in some states.)
  • Parents, including biological, adoptive, foster, or anyone who stood in loco parentis to you when you were a child. 

II. Inform your employer

Is this a sudden or unexpected medical leave?  Or is it scheduled, such as an upcoming surgery date or childbirth?:

  • If scheduled, you must give 30 days’ notice, when possible. 
  • If it is scheduled, but to occur within 30 days, you must give notice as soon as you are able.  This generally means when you learn of it or the next business day.
  • If it is unexpected, follow your normal call-in procedure. Advise your supervisor or HR contact that you are in the process of applying for FMLA.  Do not share medical information on the phone. All necessary information will be on the FMLA form.  

Properly submit your airline’s (or its leave administrator’s) FMLA form which includes your information and your doctor’s information.  If your airline does not provide its own airline specific FMLA form, you are allowed to use the Department of Labor’s form:

III. Respond to any requests for additional information

Your airline has five (5) business days to notify you if your leave has been designated as FMLA or to request more or additional clarifying information.  A 2nd medical opinion may be requested.

  • If your airline requests more information, you must complete and remit the request within seven (7) calendar days.
  • If your airline requests a 2nd opinion, your airline must cover the cost.  If the 2nd and 1st opinions conflict, your airline may request a 3rd opinion and must cover the cost. The doctors selected for 2nd and 3rd opinions cannot be on the airline’s payroll.

IV. After your FMLA is approved or denied

If your leave is approved as FMLA:

  • Your airline must provide you with the eligibility start and end dates.  Pay close attention to the start and end dates.  These start and end dates may vary from your medical provider’s request.  You may need to submit more paperwork to continue leave.
  • You do not have to take leave in one continuous period of time. If you have been approved for Intermittent Leave, pay close attention to the number of days and the number of occurrences for which you have been approved. If necessary, you may have to apply for  a medical leave and will need to submit more paperwork.
  • Your airline may require you to use your vacation and/or sick hours, depending on your contract, any relevant arbitration decisions, and your airline’s practices.  If your airline does require you to use vacation and/or sick time and you do not wish to use this time, you may be able to challenge this requirement, but understand that the requirement to use vacation and sick time is often upheld.
  • You must inform your airline of changes to the status of your medical situation.  For example, if your doctor says you may go back to work sooner than expected, you must advise your airline immediately.
  • Your airline may request updates no more than once every 30 days.
  • You should keep complete FMLA records and notes and have them available. Confirm conversations with follow-up emails. Maintain a record of all submitted FMLA forms and communications.

If your leave is not approved as FMLA:

  • Your airline must inform you of this within five (5) business days of you providing all requested information.
  • You must receive a specific reason for the denial in writing.
  • You may re-apply if you believe you are eligible, especially if you or your doctor believes that your situation is FMLA qualifying.

V. Returning to work

  • Your airline must allow you to return to work in the same or an identical job.
  • There must be no reprisals.
  • Be prepared to provide a return to work letter from your medical provider.

VI. Complaints

  • Contact your leave and/or benefits chair or local union leader to discuss your complaint.  There may be contract language that is relevant to your FMLA claim.
  • Provide a record of your complaint to your union.
  • You may be advised to file a complaint with the Wage and Hour Division of the Department of Labor. If so, you may call 1-866-487-9243 or go to http://www.dol.gov/whd/america2.htm to find the office nearest you.
  • Be ready to give the following information:
    • Your name
    • Your address and phone number (how you wish to be contacted)
    • The name of the airline where you work or worked
    • Address of the airline’s corporate headquarters (this is most likely different than the address of your domicile)
    • Phone number for the airline
    • Manager’s name
    • The details surrounding your FMLA request and your airline’s response

 

References:

http://www.dol.gov/whd/regs/compliance/whdfs28j.pdf

http://www.dol.gov/whd/fmla/employeeguide.pdf

 

SELECTED STATE FMLA LAWS

The FMLA applies in all U.S. territories and possessions, including Puerto Rico, Guam, and the Virgin Islands.

Some, not all, states have enacted leave statutes similar to the FMLA. Where a provision in state law provides a greater benefit than that under federal law or in your CBA, the state protection will take precedence. It should be noted, however, that when there is a greater threshold in the state statute than that mandated by the FMLA, i.e. a 1000 hours worked eligibility requirement in the state law instead of 504 hours/60 percent of the FA monthly guarantee provided in the TCA,  you must satisfy the higher eligibility requirement in the state law in order to qualify for the state statute’s greater benefits.

The following is not intended to be an all-inclusive or exhaustive list but simply an example of where some state statutes may provide a greater benefit than presently is available under federal law. (Accurate as of October 2015 - check for updates at www.dol.gov/whd/state/fmla )

SELECTED STATE FMLA LAWS

 

State

Coverage/Eligibility

Family Medical Leave Provisions
(unpaid unless noted)

Provides Leave
To Care For:

California

(unpaid)

Private employers with 50 or more employees and all public sector employers.

 

Up to 12 weeks of unpaid family leave plus 4 months of maternity disability may be combined for a total of 28 weeks per year.

 

Child, spouse, parent, domestic partner, child of domestic partner, stepparent, grandparent, grandchild, sibling, or parent-in-law.

 

(paid)

Employees who have worked for an employer for at least 12 months, and who have 1250 hours of service during the 12 months prior to the leave.

The California Paid Family Leave insurance program provides up to 6 weeks of paid leave to care for a seriously ill child, spouse, parent, or registered domestic partner, or to bond with a new child. The benefit amount is approximately 55% of an employee's weekly wage, from a minimum of $50 to a maximum of $1067.  The program is funded through employee-paid payroll taxes and is administered through the state's disability program.

 

Child, spouse, parent, or registered domestic partner.

Connecticut

All employers with 75 or more employees, except private or parochial elementary or secondary schools. Employees who have 1000 hours service with an employer during the 12-month period before the leave.

Up to 16 weeks in 2 years for the birth or adoption of a child, placement of child for foster care, to care for a family member with a serious medical condition, for the serious medical condition of the employee, or to serve as an organ or bone marrow donor.

Child, spouse, parent, civil union partner, parent-in-law, or stepparent.

D.C.

Any public or private employer. Employees who have at least 1000 hours of service with an employer during the 12-month period prior to leave.

Up to 16 weeks of family leave, plus 16 weeks of medical leave for employee's own serious health condition during a 2 year period. Leave must be shared by family members working for the same employer.

 

All relatives by blood, legal custody, or marriage, and anyone with whom an employee lives and has a committed relationship.

Hawaii

Private employers with 100 or more employees.  Excludes public employees. Employees who have worked for 6 consecutive months.

Up to 4 weeks per year. Permits intermittent leave for birth, adoption placement, and to care for a family member with a serious health condition. Does not apply to employee's own health condition or placement of a foster child.  Does not require spouses to share leave. 

 

Child, spouse, parent, in-laws, grandparents, grandparents-in-law, stepparent, or reciprocal beneficiary.

Maine

Private employers with 15 or more employees; all state employers, and local governments with 25 or more employees

Up to 10 weeks in 2 years for the birth of a child or adoption of a child age 16 or younger.  Includes leave to be an organ donor.  Does not require spouses to share leave. 

 

Child, spouse, parent, sibling who lives with employee, civil union partner, child of civil union partner, or non-dependent adult child.

Massachusetts

Employers with 50 or more employees.

Up to 24 hours per year leave to participate in children's educational activities or accompany a child, spouse, or elderly relative to routine medical appointments, under the Small Necessities Leave Act.

 

Minnesota

All employers with 21 or more employees. An employee who has worked for an employer for at least 12 consecutive months immediately preceding the request, and whose average number of hours per week equal one-half of a full-time equivalent position. All employers with at least 1 employee for school activities leave only.

 

Up to 6 weeks for the birth or adoption of a child.  Does not require spouses to share leave. Permits employees to use personal sick leave benefits to care for an ill or injured child on the same terms as for the employee's own use. Up to 10 working days when a person's parent, child, grandparents, siblings, or spouse who is a member of the United States armed forces, has been injured or killed while in active service. Up to 40 hours to undergo a medical procedure to donate bone marrow or to donate an organ or partial organ.

 

Child, spouse, parent, grandparent, or sibling.

New Jersey

(unpaid)

All employers with 50 or more employees. Employees who have worked for an employer for 12 months and who have at least 1000 hours of service during those 12 months.

 

Unpaid leave of up to 12 weeks in 24 months, not to exceed  more than 6 weeks in 12 months, to care for a child anytime during the first year after that child's birth or adoption, or to care for a seriously ill child, spouse, parent or domestic partner. Does not provide leave for the employee's own serious health condition.  Intermittent leave is limited to 42 days in 12 months. Does not require spouses to share leave.

Child, spouse, parent, in-laws, or domestic partner.

NJ (paid)

Employees who have worked 20 calendar weeks or who have earned at least 1000 times the state minimum wage during the 52 weeks prior to leave.

Paid leave provides up to ⅔ of wages up to $524/week for 6 weeks.  Provides that any Paid Family Leave runs concurrently with FMLA or NJFLA and that other types of available leave must be used before taking paid family leave. Provides that leave may be paid, unpaid, or a combination of both. 

Child, parent, parent-in-law, grandparent, spouse, domestic partner

Oregon

All employers with 25 or more employees. Employees who have worked at least 25 hours per week in the past 180 days. 

Up to 12 weeks per year. An additional 12 weeks per year is available to care for the employee's ill or injured child who does not have a serious health condition but who requires home care.  Prohibits two family members working for the same employer from taking concurrent family leave except under certain conditions. Allows an employee to substitute any available paid vacation or sick leave.  Allows leave to be used to deal with the death of a family member.

 

Child, spouse, parent, grandparent, grandchild, or parent-in-law, or a person with whom the employee has or had an in loco parentis relationship.

Rhode Island

(unpaid)

Private employers with 50 or more employees.  All state government employers. Local governments with 30 or more employees. Full time employees who have been employed for 12 consecutive months and who work an average of 30 or more hours per week.

 

Up to 13 weeks in 2 years for the birth or adoption of a child age 16 or younger, or to care for a parent, child, spouse or in-law with a serious medical condition.

 

Child, spouse, parent, employee's spouse's parent.

(paid)

All private sector employers and public sector employers who opt into the program.

The Rhode Island Temporary Caregiver Insurance Program provides 4 weeks of paid leave for the birth, adoption or fostering of a new child or to care for a family member with a serious health condition; and up to 30 weeks of paid leave for a worker's own disability. The program is funded by employee payroll taxes and administered through the state's temporary disability program. It provides a minimum benefit of $72 and maximum of $752 per week, based on earnings.

 

Child, parent, parent-in-law, grandparent, spouse, domestic partner

Vermont

All employers with 10 or more employees for leaves associated with a new child or adoption. All employers with 15 or more employees for leaves related to a family member's or employee's own serious medical condition.  Employees who have worked for an employer for one year for an average of 30 or more hours per week.

Up to 12 weeks in 12 months for parental or family leave. Allows the employee to substitute available sick, vacation, or other paid leave, not to exceed 6 weeks. Does not require spouses to share leave. Provides an additional 24 hours in 12 months to attend to the routine or emergency medical needs of a child, spouse, parent, or parent-in-law or to participate in children's educational activities.  Limits this leave to no more than 4 hours in any 30-day period.

 

Child, spouse, parent, parent-in-law.

 

Washington

All employers. An employee who has been employed for at least 680 hours during his or her qualifying year.

 

Washington Family Leave Act provides up to a total of twelve weeks of leave during any 12 month period for the birth of a child, the placement of a child for adoption or foster care, to care for a family member with a serious health condition, or because of a serious health condition that makes the employee unable to perform the functions of the job.

 

Washington Family Care Act allows workers with available paid sick leave or other paid time off to use that leave to care for a sick child with a routine illness; a spouse, registered domestic partner, parent, parent-in-law, or grandparent with a serious or emergency health condition; and an adult child with a disability.

 

Note: The Washington Family and Medical Leave Insurance Act, passed in 2007, and which established a paid family leave insurance program was never implemented and has been indefinitely postponed by subsequent legislation.

 

Child, spouse, parent, parent-in-law, grandparent, or state registered domestic partner.

 

 

Wisconsin

Employers who employ at least 50 individuals on a permanent basis, including any state government entity. An employee who has been employed by the same employer for more than 52 consecutive weeks and who has at least 1,000 hours of service during that time.

Up to 6 weeks of leave for the birth or adoption of a child; up to 2 weeks of leave care of a child, spouse, parent, domestic partner or parent of a domestic partner with a serious health condition; and up to 2 weeks of leave for the employee's own serious health condition. Does not require spouses to share leave.  Allows an employee to substitute employer-provided paid or unpaid leave for portions of family or medical leave.

Child, spouse, parent, domestic partner, or parent of a domestic partner.

FMLA Glossary of Terms

Act or FMLA means the Family and Medical Leave Act of 1993, Public Law 103 3 (February 5, 1993), 107 Stat. 6 (29 U.S.C. 2601 et seq., as amended).


ADA means the Americans with Disabilities Act (42 U.S.C. 12101 et seq., as amended).


Administrator means the Administrator of the Wage and Hour Division, U.S. Department of Labor, and includes any official of the Wage and Hour Division authorized to perform any of the functions of the Administrator under this part.


Airline flight crew employee means an airline flight crewmember or flight attendant as those terms are defined in regulations of the Federal Aviation Administration. See also § 825.800(a).


Airline Flight Crew Technical Corrections Act or the TCA, Public Law 111-119, means the amendment to Section 101(2) of the FMLA, which provides, inter alia, an alternate means of calculating hours worked for eligibility for FMLA leave to accommodate the unusual work schedule of flight crews.


Applicable monthly guarantee means:

  1. For an airline flight crew employee who is not on reserve status (line holder), the minimum number of hours for which an employer has agreed to schedule such employee for any given month; and
  2. For an airline flight crew employee who is on reserve status, the number of hours for which an employer has agreed to pay the employee for any given month. See also § 825.801(b)(1).

COBRA means the continuation coverage requirements of Title X of the Consolidated Omnibus Budget Reconciliation Act of 1986, as amended (Public Law 99 272, title X, section 10002; 100 Stat 227; 29 U.S.C. 1161 1168).


Collective Bargaining Agreement or CBA means the contract the Association of Flight Attendants-CWA,    AFL-CIO has negotiated for you with your airline.  Your CBA covers work rules, compensation, benefits, and other important topics that define and regulate your relationship with your airline.

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Commerce and industry or activity affecting commerce mean any activity, business, or industry in commerce or in which a labor dispute would hinder or obstruct commerce or the free flow of commerce, and include “commerce” and any “industry affecting commerce” as defined in sections 501(1) and 501(3) of the Labor Management Relations Act of 1947, 29 U.S.C. 142(1) and (3).


Contingency operation means a military operation that:

  1. is designated by the Secretary of Defense as an operation in which members of the Armed Forces are or may become involved in military actions, operations, or hostilities against an enemy of the United States or against an opposing military force; or
  2. results in the call or order to, or retention on, active duty of members of the uniformed services under section 688, 12301(a), 12302, 12304, 12305, or 12406 of Title 10 of the United States Code, chapter 15 of Title 10 of the United States Code, or any other provision of law during a war or during a national emergency declared by the President or Congress. See also § 825.126(a)(2).

Continuing treatment by a health care provider means any one of the following:

  1. Incapacity and treatment. A period of incapacity of more than three consecutive, full calendar days, and any subsequent treatment or period of incapacity relating to the same condition, that also involves:
    1.    i.        Treatment two or more times, within 30 days of the first day of incapacity, unless extenuating circumstances exist, by a health care provider, by a nurse 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
    2.   ii.        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.
    3.  iii.        The requirement in paragraphs (i) and (ii) for treatment by a health care provider means an in-person visit to a health care provider. The first in-person treatment visit must take place within seven days of the first day of incapacity.
    4.  iv.        Whether additional treatment visits or a regimen of continuing treatment is necessary within the 30-day period shall be determined by the health care provider.
    5.   v.        The term “extenuating circumstances” in paragraph (i) means circumstances beyond the employee’s control that prevent the follow-up visit from occurring as planned by the health care provider. Whether a given set of circumstances are extenuating depends on the facts. See also § 825.115(a)(5).
  2. Pregnancy or prenatal care. Any period of incapacity due to pregnancy, or for prenatal care. See also § 825.120.
  3. Chronic conditions. Any period of incapacity or treatment for such incapacity due to a chronic serious health condition. A chronic serious health condition is one which:
    1.    i.        Requires periodic visits (defined as at least twice a year) for treatment by a health care provider, or by a nurse under direct supervision of a health care provider;
    2.   ii.        Continues over an extended period of time (including recurring episodes of a single underlying condition); and
    3.  iii.        May cause episodic rather than a continuing period of incapacity (e.g., asthma, diabetes, epilepsy, etc.).
  4. Permanent or long-term conditions. 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.
  5. Conditions requiring multiple treatments. Any period of absence to receive multiple treatments (including any period of recovery therefrom) by a health care provider or by a provider of health care services under orders of, or on referral by, a health care provider, for:
    1.    i.        Restorative surgery after an accident or other injury; or
    2.   ii.        A condition that would likely result in a period of incapacity of more than three consecutive full calendar days in the absence of medical intervention or treatment, such as cancer (chemotherapy, radiation, etc.), severe arthritis (physical therapy), kidney disease (dialysis).
  6. Absences attributable to incapacity under paragraphs (2) or (3) of this definition qualify for FMLA leave even though the employee or the covered family member does not receive treatment from a health care provider during the absence, and even if the absence does not last more than three consecutive full calendar days. For example, an employee with asthma may be unable to report for work due to the onset of an asthma attack or because the employee’s health care provider has advised the employee to stay home when the pollen count exceeds a certain level. An employee who is pregnant may be unable to report to work because of severe morning sickness.

Covered active duty or call to covered active duty status means:

  1. in the case of a member of the Regular Armed Forces, duty during the deployment of the member with the Armed Forces to a foreign country; and,
  2. in the case of a member of the Reserve components of the Armed Forces, duty during the deployment of the member with the Armed Forces to a foreign country under a Federal call or order to active duty in support of a contingency operation under a provision of law referred to in section 101(a)(13)(B) of Title 10, United States Code. See also § 825.126(a).

Covered service member means:

  1. a current member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness, or
  2. a covered veteran who is undergoing medical treatment, recuperation, or therapy for a serious injury or illness.

Covered veteran means an individual who was a member of the Armed Forces (including a member of the National Guard or Reserves), and was discharged or released under conditions other than dishonorable at any time during the five-year period prior to the first date the eligible employee takes FMLA leave to care for the covered veteran. See § 825.127(b)(2).

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Department of Labor or DOL is a cabinet-level department of the U.S. federal government responsible for occupational safety, wage and hour standards, unemployment insurance benefits, re-employment services, and some economic statistics.  The DOL is charged with the administration of the FMLA.  Many individual states also have departments of labor to oversee state statutes and regulations governing similar topics...


Eligible employee means:

  1. An employee who has been employed for a total of at least 12 months by the employer on the date on which any FMLA leave is to commence, except that an employer need not consider any period of previous employment that occurred more than seven years before the date of the most recent hiring of the employee, unless:
    1.    i.        The break in service is occasioned by the fulfillment of the employee’s Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. 4301, et seq., covered service obligation (the period of absence from work due to or necessitated by USERRA-covered service must be also counted in determining whether the employee has been employed for at least 12 months by the employer, but this section does not provide any greater entitlement to the employee than would be available under the USERRA); or
    2.   ii.        A written agreement, including a collective bargaining agreement, exists concerning the employer’s intention to rehire the employee after the break in service (e.g., for purposes of the employee furthering his or her education or for childrearing purposes); and
  2. Who, on the date on which any FMLA leave is to commence, has met the hours of service requirement by having been employed for at least 1,250 hours of service with such employer during the previous 12-month period, or for an airline flight crew employee, in the previous 12 months, having worked or been paid for not less than 60 percent of the applicable total monthly guarantee and having worked or been paid for not less than 504 hours, not counting personal commute time, or vacation, medical or sick leave (see § 825.801(b)), except that:
    1.    i.        An employee returning from fulfilling his or her USERRA-covered obligation shall be credited with the hours of service that would have been performed but for the period of absence from work due to or necessitated by USERRA-covered service in determining whether the employee met the hours of service requirement (accordingly, a person reemployed following absence from work due to or necessitated by USERRA-covered service has the hours that would have been worked for the employer (or, for an airline flight crew employee, would have been worked or paid by the employer) added to any hours actually worked (or, for an airline flight crew employee, actually worked or paid) during the previous 12-month period to meet the hours of service requirement); and
    2.   ii.        To determine the hours that would have been worked (or, for an airline flight crew employee, would have been worked or paid) during the period of absence from work due to or necessitated by USERRA-covered service, the employee’s pre-service work schedule can generally be used for calculations.
  3. Who is employed in any State of the United States, the District of Columbia or any Territories or possession of the United States.
  4. Excludes any Federal officer or employee covered under subchapter V of chapter 63 of title 5, United States Code.
  5. Excludes any employee of the United States House of Representatives or the United States Senate covered by the Congressional Accountability Act of 1995, 2 U.S.C. 1301.
  6. Excludes any employee who is employed at a worksite at which the employer employs fewer than 50 employees if the total number of employees employed by that employer within 75 miles of that worksite is also fewer than 50.
  7. Excludes any employee employed in any country other than the United States or any Territory or possession of the United States.

Employ means to suffer or permit to work.


Employee has the meaning given the same term as defined in section 3(e) of the Fair Labor Standards Act, 29 U.S.C. 203(e), as follows:

  1. The term “employee” means any individual employed by an employer;
  2. In the case of an individual employed by a public agency, “employee” means
    1.    i.        Any individual employed by the Government of the United States
      1. As a civilian in the military departments (as defined in section 102 of Title 5, United States Code),
      2. In any executive agency (as defined in section 105 of Title 5, United States Code), excluding any Federal officer or employee covered under subchapter V of chapter 63 of Title 5, United States Code,
      3. In any unit of the legislative or judicial branch of the Government which has positions in the competitive service, excluding any employee of the United States House of Representatives or the United States Senate who is covered by the Congressional Accountability Act of 1995,
      4. In a nonappropriated fund instrumentality under the jurisdiction of the Armed Forces, or
      5.   ii.        Any individual employed by the United States Postal Service or the Postal Regulatory Commission; and
      6.  iii.        Any individual employed by a State, political subdivision of a State, or an interstate governmental agency, other than such an individual
        1. Who is not subject to the civil service laws of the State, political subdivision, or agency which employs the employee; and
        2. Who -
          1. Holds a public elective office of that State, political subdivision, or agency,
          2. Is selected by the holder of such an office to be a member of his personal staff,
          3. Is appointed by such an officeholder to serve on a policymaking level,
          4. Is an immediate adviser to such an officeholder with respect to the constitutional or legal powers of the office of such officeholder, or
          5. Is an employee in the legislative branch or legislative body of that State, political subdivision, or agency and is not employed by the legislative library of such State, political subdivision, or agency.

Employee employed in an instructional capacity. See the definition of Teacher in this section.


Employer means any person engaged in commerce or in an industry or activity affecting commerce that employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year, and includes

  1. Any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer;
  2. Any successor in interest of an employer; and
  3. Any public agency.

Employment benefits means all benefits provided or made available to employees by an employer, including group life insurance, health insurance, disability insurance, sick leave, annual leave, educational benefits, and pensions, regardless of whether such benefits are provided by a practice or written policy of an employer or through an “employee benefit plan” as defined in section 3(3) of the Employee Retirement Income Security Act of 1974, 29 U.S.C. 1002(3). The term does not include non-employment related obligations paid by employees through voluntary deductions such as supplemental insurance coverage. See § 825.209(a).


FLSA means the Fair Labor Standards Act (29 U.S.C. 201 et seq.).


Group health plan means any plan of, or contributed to by, an employer (including a self-insured plan) to provide health care (directly or otherwise) to the employer’s employees, former employees, or the families of such employees or former employees. For purposes of FMLA the term “group health plan” shall not include an insurance program providing health coverage under which employees purchase individual policies from insurers provided that:

  1. No contributions are made by the employer;
  2. Participation in the program is completely voluntary for employees;
  3. The sole functions of the employer with respect to the program are, without endorsing the program, to permit the insurer to publicize the program to employees, to collect premiums through payroll deductions and to remit them to the insurer;
  4. The employer receives no consideration in the form of cash or otherwise in connection with the program, other than reasonable compensation, excluding any profit, for administrative services actually rendered in connection with payroll deduction; and,
  5. The premium charged with respect to such coverage does not increase in the event the employment relationship terminates.

Health care provider means:

  1. The Act defines “health care provider” as:
    1.    i.        A doctor of medicine or osteopathy who is authorized to practice medicine or surgery (as appropriate) by the State in which the doctor practices; or
    2.   ii.        Any other person determined by the Secretary to be capable of providing health care services.
  2. Others “capable of providing health care services” include only:
    1.    i.        Podiatrists, dentists, clinical psychologists, optometrists, and chiropractors (limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by X ray to exist) authorized to practice in the State and performing within the scope of their practice as defined under State law;
    2.   ii.        Nurse practitioners, nurse midwives, clinical social workers and physician assistants who are authorized to practice under State law and who are performing within the scope of their practice as defined under State law;
    3.  iii.        Christian Science Practitioners listed with the First Church of Christ, Scientist in Boston, Massachusetts. Where an employee or family member is receiving treatment from a Christian Science practitioner, an employee may not object to any requirement from an employer that the employee or family member submit to examination (though not treatment) to obtain a second or third certification from a health care provider other than a Christian Science practitioner except as otherwise provided under applicable State or local law or collective bargaining agreement.
    4.  iv.        Any health care provider from whom an employer or the employer’s group health plan’s benefits manager will accept certification of the existence of a serious health condition to substantiate a claim for benefits; and
    5.   v.        Health care provider listed above who practices in a country other than the United States, who is authorized to practice in accordance with the law of that country, and who is performing within the scope of his or her practice as defined under such law.
  3. The phrase “authorized to practice in the State” as used in this section means that the provider must be authorized to diagnose and treat physical or mental health conditions.

In loco parentis is a Latin phrase (literally meaning “in the place of the parent”) used in a legal doctrine    describing a relationship similar to that of a parent to a child. It refers to an individual who assumes parental status and responsibilities for another individual, usually a young person, without formally adopting that person. For example, legal guardians are said to stand in loco parentis with respect to their wards, creating a relationship that has special implications for insurance and workers’ compensation law.  The doctrine of in loco parentis also has importance in education law defining the relationship between teachers and students.


Incapable of self-care means that the individual requires active assistance or supervision to provide daily self-care in several of the “activities of daily living” (ADLs) or “instrumental activities of daily living” (IADLs). Activities of daily living include adaptive activities such as caring appropriately for one’s grooming and hygiene, bathing, dressing and eating. Instrumental activities of daily living include cooking, cleaning, shopping, taking public transportation, paying bills, maintaining a residence, using telephones and directories, using a post office, etc.


Instructional employee: See the definition of Teacher in this section.


Intermittent leave means leave taken in separate periods of time due to a single illness or injury, rather than for one continuous period of time, and may include leave of periods from an hour or more to several weeks. Examples of intermittent leave would include leave taken on an occasional basis for medical appointments, or leave taken several days at a time spread over a period of six months, such as for chemotherapy.  Your airline’s accounting for intermittent leave can use time increments of no greater than one day.  Therefore you may be credited on day of leave for an appointment even though your time away from your job was less than one day.


ITO or ITA, invitational travel order (ITO) or invitational travel authorization (ITA), are orders issued by the Armed Forces to a family member to join an injured or ill service member at his or her bedside. See also § 825.310(e).


Key employee means a salaried FMLA-eligible employee who is among the highest paid 10 percent of all the employees employed by the employer within 75 miles of the employee’s worksite. See also § 825.217.


Mental disability: See the definition of Physical or mental disability.


Military caregiver leave means leave taken to care for a covered service member with a serious injury or illness under the Family and Medical Leave Act of 1993. See § 825.127.


Next of kin of a covered service member means the nearest blood relative other than the covered service member’s spouse, parent, son, or daughter, in the following order of priority: blood relatives who have been granted legal custody of the covered service member by court decree or statutory provisions, brothers and sisters, grandparents, aunts and uncles, and first cousins, unless the covered service member has specifically designated in writing another blood relative as his or her nearest blood relative for purposes of military caregiver leave under the FMLA. When no such designation is made, and there are multiple family members with the same level of relationship to the covered service member, all such family members shall be considered the covered service member’s next of kin and may take FMLA leave to provide care to the covered service member, either consecutively or simultaneously. When such designation has been made, the designated individual shall be deemed to be the covered service member’s only next of kin. See also § 825.127(d)(3).


Outpatient status means, with respect to a covered service member who is a current member of the Armed Forces, the status of a member of the Armed Forces assigned to either a military medical treatment facility as an outpatient; or a unit established for the purpose of providing command and control of members of the Armed Forces receiving medical care as outpatients. See also § 825.127(b)(1).


Parent means a biological, adoptive, step or foster father or mother, or any other individual who stood in loco parentis to the employee when the employee was a son or daughter as defined below. This term does not include parents “in law.”


Parent of a covered service member means a covered service member’s biological, adoptive, step or foster father or mother, or any other individual who stood in loco parentis to the covered service member. This term does not include parents “in law.” See also § 825.127(d)(2).


Person means an individual, partnership, association, corporation, business trust, legal representative, or any organized group of persons, and includes a public agency for purposes of this part.


Physical or mental disability means a physical or mental impairment that substantially limits one or more of the major life activities of an individual. Regulations at 29 CFR part 1630, issued by the Equal Employment Opportunity Commission under the Americans with Disabilities Act (ADA), 42 U.S.C. 12101 et seq., as amended, define these terms.


Public agency means the government of the United States; the government of a State or political subdivision thereof; any agency of the United States (including the United States Postal Service and Postal Regulatory Commission), a State, or a political subdivision of a State, or any interstate governmental agency. Under section 101(5)(B) of the Act, a public agency is considered to be a “person” engaged in commerce or in an industry or activity affecting commerce within the meaning of the Act.


Reduced leave schedule means a leave schedule that reduces the usual number of hours per workweek, or hours per workday, of an employee.


Reserve components of the Armed Forces, for purposes of qualifying exigency leave, include the Army National Guard of the United States, Army Reserve, Navy Reserve, Marine Corps Reserve, Air National Guard of the United States, Air Force Reserve, and Coast Guard Reserve, and retired members of the Regular Armed Forces or Reserves who are called up in support of a contingency operation. See also § 825.126(a)(2)(i).


Secretary means the Secretary of Labor or authorized representative.


Serious health condition means an illness, injury, impairment or physical or mental condition that involves inpatient care as defined in § 825.114 or continuing treatment by a health care provider as defined in § 825.115. Conditions for which cosmetic treatments are administered (such as most treatments for acne or plastic surgery) are not “serious health conditions” unless inpatient hospital care is required or unless complications develop. Restorative dental or plastic surgery after an injury or removal of cancerous growths are serious health conditions provided all the other conditions of this regulation are met. Mental illness or allergies may be serious health conditions, but only if all the conditions of § 825.113 are met.

See also: Continuing treatment by a health care provider, above.


Serious injury or illness means:

  1. In the case of a current member of the Armed Forces, including a member of the National Guard or Reserves, an injury or illness that was incurred by the covered service member in the line of duty on active duty in the Armed Forces or that existed before the beginning of the member’s active duty and was aggravated by service in the line of duty on active duty in the Armed Forces and that may render the service member medically unfit to perform the duties of the member’s office, grade, rank, or rating; and
  2. In the case of a covered veteran, an injury or illness that was incurred by the member in the line of duty on active duty in the Armed Forces (or existed before the beginning of the member’s active duty and was aggravated by service in the line of duty on active duty in the Armed Forces) and manifested itself before or after the member became a veteran, and is:
    1.    i.        A continuation of a serious injury or illness that was incurred or aggravated when the covered veteran was a member of the Armed Forces and rendered the service member unable to perform the duties of the service member’s office, grade, rank, or rating; or
    2.   ii.        A physical or mental condition for which the covered veteran has received a U.S. Department of Veterans Affairs Service-Related Disability Rating (VASRD) of 50% or greater, and such VASRD rating is based, in whole or in part, on the condition precipitating the need for military caregiver leave; or
    3.  iii.        A physical or mental condition that substantially impairs the covered veteran’s ability to secure or follow a substantially gainful occupation by reason of disability or disabilities related to military service, or would do so absent treatment; or
    4.  iv.        An injury, including psychological injury, which is the basis on which the covered veteran has been enrolled in the Department of Veterans’ Affairs Program of Comprehensive Assistance for Family Caregivers. See also § 825.127(c).

Son or daughter (or child) means a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is either under age 18, or age 18 or older and “incapable of self-care because of a mental or physical disability” at the time that FMLA leave is to commence.


Son or daughter of a covered service member means a covered service member’s biological, adopted, or foster child, stepchild, legal ward, or a child for whom the covered service member stood in loco parentis, and who is of any age. See also § 825.127(d)(1).


Son or daughter on covered active duty or call to covered active duty status means the employee’s biological, adopted, or foster child, stepchild, legal ward, or a child for whom the employee stood in loco parentis, who is on covered active duty or call to covered active duty status, and who is of any age. See also § 825.126(a)(5).


Spouse means a husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides, including common law marriage in States where it is recognized.  Note that the DOL is considering presently the inclusion of same-sex marriage partners in the definition of “spouse”.  The State law that will determine the status of “spouse” is the state where the marriage ceremony was performed.


State means any State of the United States or the District of Columbia or any Territory or possession of the United States.


Teacher (or employee employed in an instructional capacity, or instructional employee) means an employee employed principally in an instructional capacity by an educational agency or school whose principal function is to teach and instruct students in a class, a small group, or an individual setting, and includes athletic coaches, driving instructors, and special education assistants such as signers for the hearing impaired. The term does not include teacher assistants or aides who do not have as their principal function actual teaching or instructing, nor auxiliary personnel such as counselors, psychologists, curriculum specialists, cafeteria workers, maintenance workers, bus drivers, or other primarily non-instructional employees.


Third Party Administrator or TPA is a firm that handles various types of administrative responsibilities, on a fee-for-services basis, for companies involved in cash flow programs. These responsibilities typically include claims administration, loss control, risk management information systems, and risk management consulting.  Airlines typically have self-insured health plans so they hire a TPA to administer their health plans and process claims, e.g., BCBS.  TPAs frequently also administer disability plans and worker’s compensation claims.


TRICARE is the health care program serving active duty service members, National Guard and Reserve members, retirees, their families, survivors, and certain former spouses worldwide.
 


Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. 4301, et seq.  See Question 5 in the FAQs and Eligible Employee and other definitions set out herein.


 

 

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