FMLA FAQ: Exploring gray areas and confusing scenarios

The Family and Medical Leave Act (FMLA) supports employees in taking a leave of absence from work when certain medical and caregiving circumstances arise. However, administering this leave can be complex, posing a challenge to employers as they strive to stay in compliance.   

In a recent webinar, Guardian colleagues Tracey Collins, Absence Product Consultant, and Ryan Nelson, CLMS, Sr. Absence Management Solution Practice Leader, covered many frequently asked questions regarding FMLA, including common misconceptions and solutions to gray-area scenarios in the areas of remote work eligibility, intermittent leave, and documentation.    

Remote work eligibility  

In a highly digital work environment, providing FMLA to remote workers is a common area of confusion for many organizations. Here are some of the questions Collins and Nelson answered.  

Q:  Our company has had a number of reduction in forces (RIFs). Now we are below 50. Does that qualifying number need to be a year or immediate?  

A:  Once an employer meets the requirement for FMLA coverage, the employer is a covered employer and will remain covered as long as it employs 50 or more employees in 20 or more workweeks in either the current calendar year or in the previous calendar year.  

Q:  I have an employee who lives in MA but works in NY. What kind(s) of leaves would they be eligible for?  

A:  Eligibility for their state leaves would be based on work state, so in this case they would be eligible for NYDBL / PFL and job protections such as NY blood donation leave.  

To further illustrate remote work eligibility rules, the webinar included a scenario involving a remote employee who experiences an injury, which will require surgery and time off work. Explore this scenario and test your own knowledge here.   

Intermittent leave  

Additionally, many employers are concerned with administering intermittent leave correctly. Some of the most commonly-asked questions include:  

Q:  How do we calculate or select the intermittent time increments for reporting an absence?  

A:  The DOL indicates that you can track intermittent leave down to the minute, in 15, 30, 45 or up to 1 hour increments. Keep in mind that you cannot round up, you can only round down. For instance, if you track intermittent leaves to match your paid time tracking in 15 minutes, and the employee took 47 minutes, you would only be able to decrement 45 minutes of their intermittent leave (cannot round up to 60 minutes).    It’s generally a best practice to match intermittent leave increments to the lowest increment used for other time reporting within the organization for consistency. 

Q:  How long does my employee have to call in their intermittent occurrence?  

A:  An employee must follow your company policy reporting call out policy. However, if an employee has scheduled treatment times, as an employer, you should be reminding them to provide the schedule in advance whenever possible. Flare ups and other conditions may be last minute reporting.   

To clarify further questions and misconceptions surrounding intermittent leave, Collins and Nelson discussed a scenario involving an employee who has been approved to take intermittent leave due to a serious health condition. In this scenario, the HR team is trying to work with the employee to lessen the impact on the business, but they are afraid of being intrusive and not compliant with DOL regulations. HR is wondering: Can they call the attending physician and ask clarifying questions regarding the employee’s schedule? Watch the webinar to learn the resolution here.  

Documentation  

Finally, Collins and Nelson discuss frequently asked questions regarding FMLA documentation, including:  

Q:  What are you officially allowed to do if the medical documentation needed does not get returned/provided to you within the 15 days allowed by law and the employee is already out?  

A:  If the documentation is not received after 15 days, you may consider the leave request closed, as long as this is consistent with the initial forms period provided to other employees requesting leave. If documentation is received and the employee remains in active employment, you will need to review the documentation at that time, and if complete, you will need to approve leave in one of two ways:   

1) You can approve just the initial 15 days provided to them to provide documentation and any time certified after the documents are received, leaving a gap of unprotected time.   

2) You can provide the whole certified period, to ensure no gap and to ensure earlier exhaustion of leave.   

Learn more  

Stream the full webinar to get answers to more frequently-asked FMLA questions and to try your hand at navigating various FMLA administration scenarios, to ensure you’re prepared to support your employees and your organization.