For 30 years, HR professionals have been working with the Family and Medical Leave Act (FMLA), a federal law enacted to protect employees’ jobs and medical insurance when they need to take unpaid time away from work for certain family and medical reasons.
While FMLA has been around for a while, you may be new to the law because your organization has grown to the point where it only now applies to you or you’ve just had your first request from an employee for leave. Whatever your case, it never hurts to review the basics. FMLA can get pretty complicated, even for employers who have been granting and administering leave for years.
FMLA involves a lot more than job protection: there’s handling paperwork, deciding whether the medical condition qualifies, whether leave will be taken all at once or intermittently, and what happens when the employee returns. Let’s review some of the basic questions employers have about the law.
Are You a Covered Employer?
If you are an employer with 50 or more employees for at least 20 workweeks in the current or previous calendar year, you are subject to FMLA. Elementary and secondary schools are covered regardless of their employee count.
If you’re a covered employer, you are required to hang the FMLA poster at your workplace where applicants and employees can see it—even if you don’t have any eligible employees.
Which Employees Are Eligible?
An employee is an eligible employee if they:
- Have worked for you for at least 12 months (not necessarily consecutively);
- Have worked for you at least 1,250 hours during the 12-month period immediately before the leave; and
- Work at a location where you have at least 50 employees within 75 miles.
Remote employees are considered to work at the worksite they report to and where their assignments are made from. An employee’s personal residence is not a worksite for purposes of FMLA.
If you have any eligible employees, you are required to provide the information on the FMLA poster in your employee handbook or by distributing a copy to each new employee upon hire.
What Can an Employee Take FMLA for?
Employees are entitled to take FMLA for the following reasons:
- The birth of a baby and to care for their newborn within one year of birth;
- The placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement;
- To care for the employee’s spouse, child, or parent who has a serious health condition;
- A serious health condition that makes the employee unable to perform the essential functions of their job;
- A qualifying exigency because the employee’s spouse, child, or parent is a military member on active duty.
What Is a Serious Health Condition?
FMLA defines a serious health condition as an illness, injury, impairment, or physical or mental condition that involves either inpatient care or continuing treatment by a health care provider. Both physical and mental health conditions qualify for FMLA leave.
As far as continuing treatment, you may be surprised as to what is covered, especially when it comes to conditions that require intermittent care, such as mental health like anxiety or PTSD or recurring physical ailments like migraines or infertility.
How Much Time Do Employees Get?
The total time allotted is up to 12 workweeks of leave per year (or longer for military caregiver leave, explained below). You get to define what a year is. You can use:
- Calendar year or another similarly fixed 12-month year,
- 12 months forward from the first date the employee starts FMLA, or
- Rolling 12 months, counting backwards from the date an employee uses FMLA.
Any of these methods are acceptable, just be sure to pick one and stick with it. If you don’t identify your FMLA year, employees are entitled to use whichever year is most favorable to them.
Intermittent leave adds additional complexity to FMLA. Employees are entitled to take FMLA intermittently or on a reduced schedule when medically necessary. You want to be sure you are consistently tracking the time your employees take that qualifies for FMLA.
What Does FMLA Say About Military Family Leave?
The caregiver of a military member with a serious injury or illness may take up to 26 workweeks of unpaid leave during a single 12-month period. You’ll note that’s a longer amount of time than the standard 12 weeks.
What is Job Protection?
Job protection means an employer must return an employee who took FMLA leave to the same position they held when leave began or to an equivalent position. An employee is entitled to reinstatement even if the employee has been replaced or the position has been restructured to accommodate the employee’s absence.
An equivalent position is virtually identical to the employee’s former position in terms of pay, benefits, and other terms and conditions of employment. It must involve the same or substantially similar duties and responsibilities and require substantially equivalent skill, effort, responsibility, and authority.
If an employee is no longer qualified for the position (for example, they couldn’t attend a necessary course or renew a license) because of the leave, the employee must be given a reasonable opportunity to become qualified again when their leave ends.
Are There Exceptions?
FMLA’s only real exception is reinstatement of a “key employee.” This is an employee who is salaried, FMLA-eligible, and among the high paid 10% of employees within 75 miles. An employer may decline to reinstate a key employee if returning them to their position (but not continued absence) would cause substantial and grievous economic injury to the employer’s operations. In this case, the employee is still entitled to take their FMLA leave and the employer has specific notice requirements. If you believe that the reinstatement may need to be denied, we recommend speaking with an attorney.
What Paperwork Is Needed?
FMLA has rather involved paperwork requirements. When an employee requests leave for a reason that might qualify for FMLA, the employer has five business days to provide notice about their FMLA eligibility, rights, and responsibilities. It’s worth noting that the employee doesn’t have to request FMLA leave per se, so it’s important for managers to know the types of leave requests that can trigger FMLA. If the employee isn’t eligible for FMLA, you can stop here.
If the employee is eligible, in most cases, the employer should provide a certification form and, if the leave is for the employee’s own serious health condition, the employee’s job description when they provide the notice of FMLA eligibility, rights, and responsibilities. You can require the employee to provide the requested certification within 15 calendar days after providing them the form, but would need to grant an extension if they try but can’t meet that deadline.
Once you have enough information to know that the employee’s leave is for a FMLA-qualifying reason, you have five business days to provide the employee a designation notice. This notice tells the employee whether their leave—and, if known, how much—will be counted as FMLA.
