What is the Family Medical Leave Act (FMLA?)
The Family and Medical Leave Act (FMLA) is a federal law that allows eligible employees to take up to 12 weeks of unpaid leave in any given 12-month period for certain medical and family reasons without fear of losing their job. Signed into law in 1993, the FMLA is designed to help employees balance their work and family responsibilities while promoting equal employment opportunity for men and women.
Who is Eligible for FMLA?
An employee is eligible for FMLA leave if he or she has worked for a covered employer at least 12 months, completed at least 1,250 hours of work during the past 12 months and worked at a location within 75 miles of where the company employs 50 or more people.
Keep in mind, an “employee” is considered to be someone who works any part of the week (could be part-time). Employers must include employees who:
- Work in the U.S. or any territory or possession of the U.S.
- Are named in the payroll records, whether or not compensation is received for a particular work week
- Work for foreign businesses operating in the U.S.
- Are full-time, part-time, temporary or seasonal
- Are on paid or unpaid leave (including FMLA, vacation or sick leave, suspension, etc.) as long as you have reasonable expectation that the employee will return to active employment
What Is an FMLA Covered Employer?
The FMLA only applies to employers who meet certain criteria. A covered employer is a:
- Private-sector employer with 50 or more employees (for at least 20 weeks/year)
- Public agencies, including local, state or federal government agencies regardless of the number of employees
- Public or private elementary or secondary school, regardless of the number of employees
What Reasons Can an Employee Take FMLA?
According to the U.S. Department of Labor, eligible employees can take FMLA for any of the following reasons:
- The birth and care of a newborn child
- Newly adopted child or a child placed with the employee through foster care
- To care for a spouse, child or parent with a serious health condition, including incapacity as a result of pregnancy or for prenatal medical care
- As medical leave when the employee is unable to work because of a serious health condition
Take note: if you are the guardian of your sibling who is under 18 years old or older and incapable of self-care due to a mental or physical disability, you may take FMLA leave if he/she has a serious health condition.
Also, eligible employees can take up to 26 weeks of leave in a 12-month period to care for a family member who is in the armed forces and is called to active duty or is suffering from a serious injury or illness.
Employee Responsibilities for FMLA
Generally speaking, an employee should give at least 30 days’ notice when the leave is anticipated, such as for a planned surgery. The employee is also responsible for scheduling leave at a time that is minimally disruptive to your company’s operations. If the leave is unanticipated, such as emergency surgery, the employee has to provide notice as soon as possible.
At the employer’s request, the employee must submit a certification to prove the need for FMLA leave. The certification is a document that is completed by the employee and a health care provider to verify that the employee or family member has a serious health condition.
Employer Responsibilities for FMLA
After you’ve determined an employee is eligible for FMLA, you’re required to provide an Eligibility Notice and Rights and Responsibilities to the employee within five business days of the initial request. If the employee is not eligible, the Eligibility Notice must explain why.
When an employee asks for time off for a FMLA-qualifying reason, he/she doesn’t have to specifically mention the FMLA. It’s HR’s responsibility to recognize the leave request as meeting FMLA criteria. However, if the employee later requests additional leave for the same condition, he/she must reference the qualifying reason or the need for FMLA.
Within five days of determination, you are required to provide the employee with a Designation Notice informing them that the requested leave will be designated as FMLA leave. The notice also has to include:
- The amount of leave that will count against the employee’s FMLA leave entitlement, if known
- Whether the employee is required to use paid leave before using unpaid FMLA leave
- Whether the employee is required to submit a fit-for-duty certification before returning to work
During FMLA leave, you’re required to maintain the employee’s group healthcare plan coverage. When the employee returns, you have to give them the same or equivalent job they held when they left. An “equivalent job” is one that’s nearly identical to the original job regarding pay, benefits and other terms and conditions (including job shift and location).
What if 12 Weeks Isn’t Enough?
If an employee has exhausted their FMLA leave for the year, his/her condition may fall under the Americans with Disabilities Act (ADA). If the employee’s condition is covered by the ADA, he/she would be entitled to continued job protection while on a leave of absence, so long as their leave did not create an undue hardship for the company.
If the employee contacts you about needing an extension of the leave, you should engage in the ADA interactive process to determine if their condition makes them eligible for ADA leave and how much additional time they’d need before returning. You can then look at whether the additional leave is something you can grant without it causing an undue hardship. Be aware, however, that “undue hardship” is a high bar to pass.
You could also choose to offer additional leave to an employee even if their condition did not require coverage under the ADA (employers occasionally want to do this with top performers). But keep in mind that doing this would set a precedent for future requests, so it should be carefully considered.
How to Manage FMLA Compliance
Non-compliance with the FMLA poses a major financial risk for companies. Here are a few ways to stay on top of FMLA compliance:
- Records and documentation: Paycor’s HCM software solution allows you to record hours of FMLA leave taken and attach any relevant documentation, such as notes from health care providers.
- Burden of education: Our HR and benefits administration platform can help you with the required policies, posters and notices to make employees aware of their FMLA options. Paycor’s HR and timekeeping solutions can also alert you to absences that may qualify for FMLA leave.
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