How to comply with FMLA requirements

Basic steps for small and mid-sized employers

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The Family Medical Leave Act (FMLA) provides important protections for employees who need to take time off for certain medical conditions and family responsibilities. Generally speaking, the Act allows workers to take up to 12 workweeks of unpaid leave a year with all health benefits maintained, and at the end of FMLA leave, they must return to the same position or an equivalent job. However, the Family and Medical Leave Act doesn't apply to every company, employee, or leave situation. This article will tell you about the basic steps your business should take to comply with FMLA and where to find out more information.

 

1. Determine whether FMLA covers your company

The Family and Medical Leave Act covers every public employer and large company in the U.S. However, many smaller and mid-sized companies are not subject to the Act's requirements. Here's how to determine if your company is covered:

  • You have 50 or more employees
  • They worked at least 20 weeks in the current or preceding calendar year

If an employee worked any day of a calendar week, that counts as a workweek. Any 20 workweeks with 50 or more employees over the past two years will put you over the FMLA threshold, even if those weeks weren't consecutive. For eligibility purposes, you must count all full-time and part-time employees, employees on temporary leave, and those who work jointly for you and another company. Independent contractors and unpaid volunteers are not counted for FMLA coverage. To find out more about which companies are covered, refer to The Employer's Guide to The Family and Medical Leave Act from the U.S. Department of Labor.

If your company meets these requirements, you're covered by FMLA and should proceed with the steps listed below. However, even if you don't meet those requirements, there may be leave laws in your state that apply to your company. To find out more, here's a guide to state leave laws.

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2. Provide notice and education

Notice requirements are an essential part of the Family and Medical Leave Act. Every covered employer is required to post a notice on its premises – specifically an FMLA poster – which explains the Act's benefits and eligibility provisions and tells employees how to file complaints of violations.  You can download an FMLA poster for free from the U.S. Department of Labor website. You should display the poster in all your worksites, even if there are no eligible employees at a given location. Employers that willfully violate the posting requirement may be subject to penalties. For current penalty amounts, see www.dol.gov/agencies/whd/fmla/applicable_laws.

As a covered employer, you are also required to include the general FMLA notice and eligibility rules in employee handbooks or other written guidance about benefits. If you don't provide these materials to employees, you must distribute a copy of the notice to each new hire.

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3. Determine employee eligibility

Even if you are a covered employer, some employees may not be eligible to use FMLA leave under the regulations. To qualify for leave, the employee must meet all these criteria2:

  • They have worked at least 1,250 hours during the 12 months prior to the start of leave. This "Hours of Service" eligibility requirement equals about 24 hours per week and only includes hours worked for your company. Paid leave and unpaid leave, including FMLA leave, are not included. 
  • They work at a location where you, the employer, have 50 or more employees within 75 miles. So (for example), if you have a satellite sales office with three employees on the other side of the country, they would not be FMLA-eligible.
  • They have worked for the employer for 12 months. The 12 months of employment do not need to be consecutive. An employee can qualify for leave even with a break in employment, but in general, only employment within seven years is counted.

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4. Initial response to a leave request

You must notify an employee whether he or she is eligible to take FMLA leave within five business days of the employee request. Note that according to FMLA regulations, "An employee giving notice of the need for FMLA leave does not need to expressly assert rights under the Act or even mention the FMLA to meet his or her obligation to provide notice." In other words, if an eligible employee informs you they are taking time off for a covered reason (such as a qualified Serious Health Condition or certain family responsibilities listed in step 5), you must respond as if they are asking for FMLA-protected leave – even if the employee doesn't request it.

Your response should tell the employee whether he or she is eligible for FMLA leave and notify the employee of his or her rights and responsibilities under the FMLA. You should also inform the employee whether certification will be required, for example, by providing documentation from a health care provider stating that he or she has a Serious Health Condition. The Department of Labor has a form that makes it easier to comply with your response requirement: Notice of Eligibility and Rights & Responsibilities (WH-381).

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5. Determining whether a leave situation is FMLA-protected

Even though you are a covered employer, and the employee is FMLA eligible, that doesn't mean that their request automatically qualifies for protection under FMLA regulations. The employee's request must be for one (or more) of the following reasons2:   

  • Birth of a child: A father or mother can take time to bond with their newborn child.
  • Adoption or foster care: An adoptive or foster parent can take time to bond with a newly placed child.
  • Medical need: An employee is entitled to leave when they are unable to work due to an FMLA-specified Serious Health Condition.
  • Family care: Employees are entitled to time off to care for an immediate family member (husband, wife, child, or parent – but not an "in-law") with a Serious Health Condition.
  • Qualifying exigency leave: When a military spouse, child, or parent is deployed or called on covered active duty, employees are entitled to FMLA leave to deal with any resulting disruption.
  • Military caregiver leave: The regulations state that eligible employees are entitled to additional protected leave – up to 26 workweeks in a single 12-month period – to care for a covered servicemember with a serious medical condition. In such cases, the eligible employee can be the servicemember's husband, wife, son, daughter, parent, or even next of kin.

For more information about leave qualification and FMLA military family leave regulations, see The Employer's Guide to The Family and Medical Leave Act.

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6. Certification

When an employee requests FMLA leave for medical care or to care for a family member, you can ask for proof of a Serious Health Condition. If the employee is requesting military family leave, you may also ask for appropriate documentation. You have to allow at least 15 calendar days for the employees to obtain certification; the Department of Labor has downloadable forms that employers can use for this purpose:

Certification of Health Care Provider for a Serious Health Condition

Certification of Military Family Leave

You may not request medical certification for leave related to birth, adoption, or foster care, but you can request documentation to confirm the family relationship.3

Important note: Employees do not have to provide their medical records to you, the employer. You only have a statutory right to request that an employee provide medical certification containing "complete and sufficient" medical facts to establish that a serious health condition exists. If the medical certification is incomplete, you need to state in writing what additional information is required and allow at least seven calendar days to cure the deficiency. Finally, if you have reason to doubt the validity of the medical certification, you may require a second or third opinion, but you will have to pay for all the associated costs.

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7. Grant or deny the request

Once an employee provides any required certification, you have five business days to approve or deny FMLA leave. Because the need for leave often arises unexpectedly (i.e., due to a medical emergency), the Act's protections hold even though the absence may not be designated as an FMLA leave until several weeks after an absence starts.3

Conversely, if the employee does not provide the required certification documentation, and you have not been made aware of any extenuating circumstances, then the absence should not be designated as FMLA leave, and you should inform the employee accordingly. The Department of Labor has a downloadable form that can help communicate approval or denial of an FMLA request: Designation Notice (Form WH-382).

Note that the FMLA only requires unpaid leave. However, the law permits an employee to elect, or the employer to require the employee, to use accrued paid vacation leave, paid sick, or family leave for some or all of the FMLA leave period. The person must follow the employer's normal leave rules in order to substitute paid leave. When paid leave is used for an FMLA-covered reason, the leave is FMLA-protected. 2

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8. Maintain the employee's health benefits

According to The Employer's Guide to The Family and Medical Leave Act:

"During any FMLA leave, an employer must maintain the employee's coverage under any group health plan on the same basis as coverage would have been provided if the employee had been continuously employed during the entire leave period."

This also means that if family member coverage is provided to the employee, that person's coverage must also be maintained during the FMLA leave. Similarly, if your company offers new health plan benefits – or changes them while the employee is on FMLA-protected leave – the employee is entitled to the new or revised plan/benefits to the same extent as if they were not on leave.

For more information about your employee health benefit responsibilities, please refer to The Guide.

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9. Restore the employee's job

According to The Employer's Guide to The Family and Medical Leave Act:

"When an employee returns from FMLA leave, he or she must be restored to the same job that the employee held when the leave began or to an "equivalent job." The employee is not guaranteed the actual job he or she held prior to the leave. An "equivalent job" means a job that is virtually identical to the original job in terms of pay, benefits, and other employment terms and conditions (including shift and location)."

The guide goes on to clarify that "equivalent pay" should be broadly interpreted to include all of the following:

  • the same or equivalent pay premiums, such as a shift differential 
  • the same opportunity for overtime premium pay as the job held prior to FMLA leave 
  • any unconditional pay increases that occurred while he or she was on FMLA leave, such as cost of living increases 
  • pay increases conditioned upon seniority, length of service, or work performed if employees taking the same type of leave (i.e., paid or unpaid leave) for non-FMLA reasons receive the increases 
  • any unconditional bonuses or payments

However, if a bonus is conditioned on a specified goal, such as hours worked, which the employee does not meet due to FMLA leave, the bonus is not required unless the employer pays it to employees taking the same type of leave for a non-FMLA reason. 

Note that if a worker was absent on FMLA leave due to his or her own serious health condition, the regulations allow employers to require fitness-for-duty certification (for example, from a health care provider) if the organization has a uniformly applied policy.  

For more information about your job restoration responsibilities, please refer to The Guide.

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10. Maintain proper records

The Department of Labor requires FMLA-covered employers to make and keep certain records, and in any case, it is in your company's best legal interest to do so. Records may be kept in any suitable (and retrievable) form and should be held for at least three years. You are not required to submit these records to the Department of Labor unless specifically requested by a Department official; if requested, you must make the records available for inspection, copying, and/or transcription as requested.

The content of the records should include any or all of the following: 

  • basic payroll and identifying employee data, including name, address, and occupation
  • rate or basis of pay and terms of compensation
  • daily and weekly hours worked each pay period
  • additions to and deductions from wages
  • total compensation paid 
  • dates FMLA leave is taken (which must be designated in the records as FMLA leave)
  • hours of FMLA leave used if leave is taken in increments of less than a day
  • copies of FMLA notices provided by an employee to the employer and by the employer to its employees concerning the FMLA (including any written request for leave from the employee as well as any required notice provided to the employee concerning FMLA leave)
  • any documents, including electronic records, describing employee benefits or employer policies and practices regarding the taking of paid or unpaid leave
  • premium payments for employee benefits
  • records of any dispute between the employer 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

For more information about your recordkeeping responsibilities, review section 825.500 of the FMLA.

For more help with the demands of FMLA leave and other absence management issues 

Learn about Guardian AbsenceWorksSM and other resources that can help simplify administration and give employers more time to focus on core business needs.

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Frequently asked questions about FMLA compliance for employers

What conditions qualify for FMLA?

An eligible employee of a covered employer is entitled to receive up to 12 weeks of unpaid, job-protected FMLA leave for one (or more) of the following reasons2:   

  • Birth: A father or mother can take time to bond with their newborn child.
  • Adoption: An adoptive or foster parent can take time to bond with a newly-placed child.
  • Medical need: An employee is entitled to leave when they are unable to work due to an FMLA-specified Serious Health Condition.
  • Family care: Employees are entitled to time off to care for an immediate family member (spouse, child, or parent – but not an "in-law") with a Serious Health Condition.
  • Qualifying exigency leave: When a military spouse, child, or parent is deployed or called on covered active duty, employees are entitled to FMLA leave to deal with any resulting disruption.
  • Military caregiver leave: Eligible employees are entitled to additional protected leave – up to 26 workweeks in a single 12-month period – to care for a covered servicemember with a serious injury or illness. In such cases, the eligible employee can be the servicemember's spouse, son, daughter, parent, or even next of kin.

Can FMLA be denied?

Yes, there are several eligibility situations in which an employee request for protected leave under the Family and Medical Leave Act should not be granted according to the regulations. Reasons to deny a request for FMLA leave include but are not limited to:

  • The employer is not covered by the FMLA, for example, because the company has less than 50 employees.
  • The employee does not meet FMLA eligibility requirements, for example, because he or she does not meet the 1,250 "Hours of Service" threshold.
  • The request is not for a qualified reason, for example, because a medical condition is not defined as a Serious Health Condition under the FMLA.
  • The employee doesn't provide "complete and sufficient" certification, such as documents from a health care provider stating that he or she has a Serious Health Condition.

What is the easiest way to get FMLA?

There really isn't an "easier" or "harder" way for an employee to get protection under the Family and Medical Leave Act. In all cases, the employee must work for a covered employer, be FMLA-eligible, and have a qualified reason for requesting leave, such as a Serious Health Condition. Also, if asked by their employer to provide appropriate certification (such as proof of any health conditions from the employee's health care provider), the employee must do so in a timely manner – within at least 15 calendar days, unless there are extenuating circumstances.

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Disclaimer

References

1 U.S. Department of Labor The Employer's Guide to The Family and Medical Leave Act

2 FMLA Frequently Asked Questions https://www.dol.gov/agencies/whd/fmla/faq

https://www.shrm.org/resourcesandtools/tools-and-samples/how-to-guides/pages/approveordenyfmlaleave.aspx

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