FMLA and Employee Leave

What is the FMLA? 
The Family and Medical Leave Act (FMLA) is the only federal law that requires covered employers to provide eligible workers with unpaid job-protected leave. The FMLA went into effect in 1993 and was amended in 2008 to provide additional leave for military family members. The U.S. Department of Labor (DOL) administers the FMLA and has expanded coverage through its rule-making powers. For example, in 2010, the DOL redefined “son and daughter” to include children of adults in a same-sex relationship. It also expanded the definition of “parent” to include anyone in a child’s care-taking role regardless of blood or marriage. In 2015, the DOL changed the definition of “spouse” to include partners in a same-sex marriage.

Is every employee eligible for FMLA leave?
Not necessarily. The FMLA applies to employers with 50 or more employees working within 75 miles over 20 weeks the previous year. To be eligible for leave, employees must have worked for the employer for at least one year. They also have to have worked at least 1,250 hours in the 12 months before taking leave. That’s an average of about 24 hours per week, thus covering many part-time employees, too. The total unpaid leave entitlement for most covered employees is 12 weeks. Special rules apply to employees caring for an ill or injured service member. In that case, the employee can take up to 26 weeks off. Employers are required to maintain employees’ health benefits during FMLA leave. Employees who take FMLA leave are entitled to reinstatement to the same or an equivalent position upon return.

Leave is available:

• To care for a new child, whether for the birth, adoption or placement of a child in foster care;
• To care for a seriously ill family member, including a spouse, son, daughter or parent;
• To recover from a worker’s own serious illness, including incapacity due to pregnancy and prenatal medical care;
• To address qualifying exigencies arising out of a family member’s deployment; or
•  To care for a covered service member with a serious injury or illness if the eligible employee is the service member’s spouse, son, daughter, parent or next of kin.

How do I make sure my organization is in compliance with FMLA? 
The first step is to confirm you are a covered employer based on the number of workers you employed last year over at least 20 weeks within 75 miles. Note that if you are a public agency, part of the federal government or a public or private elementary or secondary school, you are a covered employer no matter how few employees you have.

Next, review DOL requirements such as posting the latest FMLA notice. You must display a general notice in the form of a poster available from the DOL even if no employees are currently eligible. If you have any FMLA-eligible employees, you must also provide them a written general notice. This is usually placed in the employee handbook.

Is it up to the employee to ask for FMLA leave coverage?
Employees aren’t required to ask for FMLA by name. It’s enough to tell a supervisor about a need with enough information to make it clear FMLA leave is appropriate. That triggers your responsibility to investigate further and decide whether the employee needs and is eligible for FMLA leave. Not recognizing a request as FMLA covered is one of the most common ways employers violate the FMLA.

You must let the employee know within 5 days whether he’s eligible or not. If he’s not, you must explain why. The DOL has a notice form you can use. There is also extensive information you must provide in writing explaining the employee’s rights and responsibilities during FMLA leave. Again, the DOL has a form you can use.

How do I determine if an employee is eligible for leave?Determining whether the employee is eligible requires you to determine what qualifying reason may apply. That means understanding what a serious health condition is under the FMLA, for example. You will also have to decide whether you will require a medical certification from the employee’s health care provider.

Once the employee is ready to return to work, you must restore her to the same or an equivalent position. If she is not able to return because she cannot perform the essential functions of her job, you should determine if she is disabled under the ADA. She might be entitled to additional leave under that law as a reasonable accommodation.

Is maternity leave the same thing as FMLA? 
Not necessarily. The FMLA covers many additional circumstances beyond pregnancy, birth and time off to bond. The FMLA allows new mothers (and fathers) protected leave when welcoming a new family member through birth, adoption or fostering. Employers often have existing programs in place that provide for paid time off during the same circumstances. Employers can run their own paid time off concurrently with unpaid FMLA leave.

You should be aware that all new parents eligible for FMLA leave can take that leave whatever their sex. Unless tied to post-birth physical recovery, employers cannot provide more maternity or FMLA leave to women. Recently, men have won large settlements against employers for receiving less time off than women following a child’s birth.

How do you manage intermittent FMLA leave?
Intermittent FMLA leave is not taken in one block, but spread over a longer period. The FMLA provides intermittent leave for chronic conditions that flare up from time to time. For example, a worker who experiences frequent debilitating migraines may need a few hours off several times per week. If his doctor certifies his need for intermittent leave, the certification will outline a frequency estimate.

Because the need is often unpredictable, it is the most difficult type of FMLA leave to manage. The best approach is to carefully review the certification and track absences. You can insist the employee follow call-off rules. You should have clear rules that allow investigation for a pattern of abuse such as Monday and Friday call-offs. Those rules should allow checking up on employees to be sure they are home, or even stay-in-place requirements. Just make sure you apply the rules to everyone, not just those on intermittent FMLA leave.

What FMLA forms do I need to use as an employer?
Fortunately, the DOL provides sample FMLA forms for employers. It has updated FMLA posters, FMLA rights and responsibility statements, FMLA approval or denial forms, sample medical certification forms and others.  These are available at the DOL website in both English and Spanish.