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Since 1993, the Family and Medical Leave Act has provided eligible employees up to 12 weeks of unpaid, job-protected leave per year for the birth, adoption or foster care of a child; caring for a child, spouse or parent with a serious health condition; or convalescence after an employee’s own serious health condition.

For the past 16 years, complying with the FMLA has been complex, but at least the law stayed the same. On Jan. 16, 2009, that all changed. That’s the day the first major overhaul of the FMLA took effect. The DOL’s revised FMLA regulations contain several key changes in administering leave that employers and HR professionals need to be aware of and incorporate into their company policies.

In addition, employees who have family members serving in the military are now entitled to FMLA-qualifying leave. (See "Military Family Leave.")

Compliance regulations

The FMLA affects about 50 million workers in the private sector and 300,000 U.S. businesses, according to the Bureau of Labor Statistics.

Any company with 50 or more employees working within a 75-mile radius of the “work site” and “engaged in commerce” must comply with the FMLA. The courts have interpreted the term “engaged in commerce” so loosely that virtually all types of businesses meet the definition.

The regulations specifically bar employers from shifting employees from one work site to another to evade the employee limit. The 50 or more workers must be employed “for each working day during each of the 20 or more calendar workweeks in the current or preceding calendar year.”

If another corporation owns your business, how would you determine the total number of employees for compliance purposes?

The companies would be considered separate entities unless you met the “integrated employer” test. Four criteria are used to determine if two or more companies are an integrated employer: “common management, interrelation between operations, centralized control of labor relations and degree of common ownership/financial control,” according to Section 825.104c (2) of the FMLA regulations. If you meet those tests, the employees of all the companies would be counted in determining whether you are covered by the law.

If you're uncertain of your organization's status, call the Wage and Hour Division, U.S. Labor Department, at (866) 487-9243.

Employee eligibility

To be eligible for leave, an employee must have worked for the same employer for at least 12 months and clocked at least 1,250 hours of service (slightly more than 24 hours per week) during the 12 months leading up to FMLA leave.

On-call time counts toward the 1,250 hours, but paid time off, such as vacation or sick time, does not. Note: In 2008, the DOL determined that time spent in "light duty" work does not count against an employee's FMLA leave entitlement.

Employees at a newly acquired company are eligible from the first day of work if they had one year’s seniority with the previous company. If you as the employer challenge an employee’s time-worked claim, the burden of proof is on you. 

Leave time

Eligible employees can take up to 12 weeks of unpaid leave during a 12-month period. Under DOL regulations, you must set a fixed 12-month period for all employees based on one of the following measuring-year methods:

• A calendar year.
• A “leave year,” such as your fiscal year.
• A year mandated by state law.
• A year starting on the anniversary of the employee’s date of employment.
• A rolling period, starting on the date the employee first took FMLA leave. 

The last scenario, a rolling period, would prevent an employee from taking 24 weeks of leave at once: that is, 12 weeks at the end of one year followed by 12 weeks at the beginning of the next year. Be careful in selecting your tracking system. You don’t want to give employees a chance to elect the most advantageous measuring method when they take their leave. Plus, if you fail to designate a measuring-year method, an employee must be given the most generous leave period available among all the options.

Who is considered family?

Specific guidelines define the qualifications for FMLA protection. Employees, both men and women, may take leave for the birth or adoption of a child or to provide foster care. Foster care is a state-sanctioned arrangement; taking care of someone else’s child does not normally qualify. Employees also can request FMLA leave to provide needed care to a sick child, spouse or parent. In states that recognize common-law and gay marriages, couples are considered spouses under the FMLA.

The federal law doesn't cover care provided to unmarried domestic partners, nor to siblings, aunts, uncles, cousins, grandparents or in-laws. Once children become 18, they don’t qualify unless a mental or physical disability makes them incapable of self-care.

According to the final regulations, you as the employer are required to designate the leave requested by an employee as FMLA leave and to notify the worker in writing that the leave qualifies as such.

In only two instances would you be allowed to designate FMLA leave after the employee took the time off: (1) if you did not know why an employee had been on leave, as long as you designate the leave within two days of the worker’s return to work, or (2) if you had already provisionally designated the leave as FMLA leave but were waiting for the medical certification.

Health care providers

The DOL rules stress that the status of a health care provider isn’t limited to physicians. A provider is defined as a doctor of medicine or osteopathy authorized to practice medicine or surgery in a specific state or states or any other person whom the Secretary of Labor deems capable of providing health care services.

Here’s a partial list of those considered providers:

• Physicians
• Podiatrists
• Optometrists
• Nurses
• Dentists
• Clinical psychologists
• Chiropractors
• Clinical social workers
• Christian Science practitioners
• Health care providers recognized by the employer or the benefits manager of the employer’s group health plan