The Family and Medical Leave Act of 1993, commonly known as FMLA, was signed into law by President Clinton on February 5, 1993, and it took effect on August 5 of that year. Congress passed the act, stating, “it is important for the development of children and the family unit that fathers and mothers be able to participate in early childrearing … [and] the lack of employment policies to accommodate working parents can force individuals to choose between job security and parenting”. It also emphasized that the act was intended to provide leave protection for individuals “in a manner that accommodates the legitimate interests of employers.”
Federal FMLA provides eligible employees of a covered employer with unpaid leave for four specific family and medical reasons. Eligible employees are permitted to take up to 12 weeks of leave in a single 12-month period for any of the following reasons:
- The birth or adoption of a child in order to bond with the newborn or newly placed child (note, this reason applies to both men and women)
- To care for a spouse, child or parent with a serious health condition (note: this rule does not apply to care of a sibling) to include incapacity as a result of pregnancy or for prenatal medical care
- For an employee’s own serious health condition that has a negative impact on job performance
- For any qualifying military requirement (i.e., a spouse, child or parent is called into active duty).
Eligible employees can also take up to 26 weeks of leave in a single 12-month period to care for a covered spouse, child, parent or next of kin who is a service member who is called into active duty or is suffering from a serious injury or illness. Eligible employees are limited to a combined total of 26 work weeks of leave for any FMLA-qualifying reason during the single 12-month period.
FMLA also requires that an employer must maintain an employee’s health benefits while they are on leave and restore that employee to their same or equivalent job after leave is completed.
What is a “covered employer” and an “eligible employee”
You’re a covered employer under the FMLA if your business is a private-sector company, a public agency or a school. A private-sector company is considered covered by FMLA if it has 50 or more employees working during 20 or more work weeks in the current or previous calendar year.
An employee is someone who works any part of the week (they don’t have to work an entire work week), and the work weeks don’t have to be consecutive. Your employees who must be included are ones who:
- Work in the U.S. or any territory or possession of the U.S.
- Are named in payroll records, whether or not compensation is received for a particular work week
- 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
- Are employees of foreign businesses operating in the U.S.
- Are full-time, part-time, temporary or seasonal employees
Eligibility requirements for all employees are the same, regardless of the reason for the request. The employee must:
- Work for a covered employer
- Have worked for the employer for at least 12 months as of the date the FMLA leave is to start (the 12 months do not have to be consecutive)
- Have completed a minimum of 1,250 hours of service during that 12-month period
- Be employed at a location where the company has at least 50 employees within 75 miles of that worksite
What are an employee’s responsibilities when filing for FMLA?
The employee must give you at least 30 days’ notice when the leave is anticipated, such as when they’re having surgery in two months. 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.
If you request one, 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.
What are the FMLA responsibilities for the employer?
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 give them at least one reason why they’re not.
What are an employee’s responsibilities during FMLA leave?
If the employee takes FMLA leave for a personal health condition, and your company requires it, the employee must provide a fitness-for-duty certification from their healthcare provider before returning to work.
What are your responsibilities during and when an employee returns from FMLA leave?
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 fitness-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 from FMLA leave, you have to give them the same or equivalent job they held when they began leave. It’s important to note that an employee is not guaranteed the identical job they held prior to taking FMLA leave. An “equivalent job” is a job that is nearly identical to the original job regarding pay, benefits and other terms and conditions (including job shift and location).
Records Employers Must Maintain
You’re required to maintain the following records:
- Payroll and employee data, including
- Name, home address, and job title
- Rate of pay and compensation terms
- Hours worked each pay period
- Additions to and deductions from wages
- Total compensation paid (easy if you have total compensation statements)
- Dates leave is taken, specifically designated as FMLA leave
- Hours of FMLA leave used if leave is incrementally taken
- Copies of provided FMLA notices
- Documents describing employee benefits or policies and practices regarding paid or unpaid leave
- Premium payments for employee benefits
- Records of any dispute between the you and an employee regarding the designation of leave as FMLA leave, such as emails or other written statements regarding a disagreement on the designation of the employee’s FMLA leave request
Even if an employee leaves the company, you have to keep these records for no less than three years in the event of a Department of Labor audit or employee lawsuit.
Managing FMLA Solo or With a Partner
Clearly, FMLA administration can be a daunting and time-consuming process, and the rules and regulations are much more complex than the basics we’ve covered above. If you plan to go it alone, we encourage you to dig in to the Department of Labor’s 75-page employer guide for more specific details. If you decide to work with a partner who can make sure all the “I”s are dotted and the “T”s are crossed instead, give us a call. Our benefits software platform can help HR professionals navigate the regulations and maintain compliance.
Take Compliance Quiz
How effectively is your organization managing compliance risk? Find out and get a customized plan.Take Quiz
Stay Up to Date
Sign up to receive our latest research and expert advice.
Check your inbox for an email confirming your subscription. Enjoy!