Employer guide to FMLA rules

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The Family and Medical Leave Act (FMLA) provides eligible employees up to 12 workweeks of unpaid leave a year and requires group health benefits to be maintained during the leave as if employees continued to work. Employees are also entitled to return to their same or an equivalent job at the end of their FMLA leave. Certain additional leave entitlements are provided for military families. The FMLA is administered and enforced by the U.S. Department of Labor, which provides extensive program information on their website. This article summarizes many of the key issues you should be aware of as a small or mid-sized employer, including: 

Coverage and eligibility

Employers covered under the FMLA: The act applies to all but the smallest companies, including:

  • all private sector employers who employ 50 or more employees for at least 20 workweeks in the current or preceding calendar year – including joint employers and successors of covered employers; and
  • all public agencies, including local, state, and federal employers, and local schools.

Employees who are eligible for FMLA leave: To qualify for leave, the individual must:

  • work for a covered employer;
  • have worked 1,250 hours during the 12 months prior to the start of leave (the "Hours of Service" requirement); 
  • work at a location where the employer has 50 or more employees within 75 miles; and
  • have worked for the employer for 12 months. 

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.

The 12 months of employment do not need to be consecutive. An employee can qualify for leave even with a break in employment. In general, only employment within seven years is counted unless the break in service is (1) due to an employee's fulfillment of military obligations, or (2) governed by a collective bargaining agreement or other written agreement.

The 1,250 Hours of Service requirement only includes hours worked for the employer. Paid leave and unpaid leave, including FMLA leave, are not included. 

Laying off an employee during FMLA leave: Employees on FMLA leave are not exempt from layoffs, as FMLA regulation 825.216 (a) states: "An employee has no greater right to reinstatement or to other benefits and conditions of employment than if the employee had been continuously employed during the FMLA leave period. An employer must be able to show that an employee would not otherwise have been employed at the time reinstatement is requested in order to deny restoration to employment." However, since the employer is responsible for proving that the layoff is not leave-related, The Society of Human Resource Management (SHRM) advises employers to act with caution and get the advice of legal counsel in these situations.

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Qualifying conditions

A covered employer must grant FMLA leave to an eligible employee in these situations: A total of up to 12 workweeks of unpaid, job-protected leave in a 12-month period must be granted for one or more of the following reasons:

  • the birth of a son or daughter, and to bond with the newborn child;
  • the placement with the employee of a child for adoption or foster care, and to bond with that child;
  • to care for an immediate family member (wife, husband, child, or parent – but not a parent "in-law") with a serious health condition;
  • to take medical leave when the individual is unable to work because of a serious health condition; or
  • for qualifying exigencies arising out of the fact that the employee's spouse, son, daughter, or parent is on covered active duty or call to covered active duty status as a member of the National Guard, Reserves, or Regular Armed Forces.

There are additional entitlements for military servicemember care. The FMLA also allows eligible employees to take up to 26 workweeks of unpaid, job-protected leave in a "single 12-month period" to care for a covered servicemember with a serious injury or illness.

Birth and bonding leave restrictions and rights: There can be complicating factors during pregnancy, childbirth, or adoption which affect leave eligibility. Employers and employees should be aware of the following:

  • Leave to bond with a newborn, newly adopted, or fostered child must conclude within 12 months after birth or placement. The use and eligibility of intermittent leave for these purposes is subject to the employer's approval. 
  • If a newly born or newly placed child has a serious condition, employees have the right to take leave to care for them intermittently, if medically necessary. This leave is not subject to the 12-month limitation.
  • Mothers and fathers have the same right to take FMLA leave to bond with a newborn infant. 
  • A mother can also take leave for prenatal care, incapacity related to pregnancy, and for her own serious medical condition following the birth of an infant. 
  • A father can also use leave to care for his spouse who is incapacitated due to pregnancy or childbirth.

Employees are not required to take leave all at once. When medically necessary, employees may take FMLA leave intermittently: taking leave in separate blocks of time for a single qualifying reason, or on a reduced leave schedule, which reduces the employee's usual weekly or daily work schedule. 

When leave is needed for planned medical treatment, the employer's needs should be taken into account. Employees needing leave for foreseeable medical treatments must work with you to schedule the leave so as not disrupt your operations – subject to the approval of the employee's health care provider. For an intermittent/reduced schedule leave, you may temporarily transfer the individual to an alternative job with equivalent pay and benefits that better accommodate recurring periods of leave.

What qualifies as a "serious health condition"? The most common serious health conditions for employees or their family members are:

  • conditions requiring an overnight stay in a hospital or other medical care facility;
  • conditions that incapacitate (for example, unable to work or attend school) for more than three consecutive days and have ongoing medical treatment;
  • chronic conditions that cause occasional periods of incapacitation and require treatment at least twice a year; and
  • pregnancy, including prenatal medical appointments, incapacity due to morning sickness, and medically required bed rest.

FMLA leave for a chronic serious health condition. Under the regulations, FMLA leave eligibility can continue for any period of incapacity or treatment due to a chronic serious health condition, defined as a condition that:

  1. requires "periodic visits" (at least twice a year) for treatment by a health care provider, 
  2. continues over an extended period of time, and 
  3. may cause episodic rather than continuing periods of incapacity. 

FMLA leave for reasons related to domestic violence issues: An eligible individual may take covered leave because of his or her own serious health condition, or to care for a qualifying family member with a serious health condition that resulted from domestic violence. 

FMLA leave for organ donation: Organ donation – whether to a relative or non-relative – can qualify as a serious health condition under the FMLA when it involves either inpatient care or continuing treatment. Since organ donation commonly requires overnight hospitalization for surgery and recovery, that alone would qualify for eligibility.

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Certification

Employers may require proof of a serious health condition. You may require certification from a medical provider showing the need for leave due to the employee's health status or that of an immediate family member. You must allow the individual at least 15 calendar days to obtain the certification.

Employees do not have to provide their medical records to their employers. 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 medical certification is incomplete: You must advise the employee and allow a reasonable opportunity to cure the deficiency. Specifically, you must state in writing what additional information is needed and must allow at least seven calendar days to cure the deficiency, unless seven days is not practicable under particular circumstances despite the employee's diligent good faith efforts.

An employer may require a second or third medical opinion – at the employer's expense. If you have reason to doubt the validity of the medical certification, you may require another opinion, but you will have to pay for all the associated costs.

Employers should request medical certification, in most cases, at the time an employee gives notice of the need for leave or within five business days. If the leave is unforeseen, you should request certification within five days after the leave begins. You may also request certification at a later date if you reason to question the appropriateness or duration of the leave.

In no case may the employee's direct supervisor contact the employee's health care provider. Contact between an employer and an employee's health care provider must comply with the Health Insurance Portability and Accountability Act (HIPAA) privacy regulations. Under the regulations, employers may contact an employee's health care provider for authentication or clarification of the medical certification by using a human resource professional, a leave administrator, or a management official. For an employee's HIPAA-covered provider to provide an employer with individually-identifiable health information, the employee will need to provide the health care provider with a written authorization allowing the health care provider to disclose such information to the employer. Employers may not ask the health care provider for additional information beyond the medical certification form.

An employer may not require an employee to sign a release or waiver as part of the medical certification process. The regulations specifically state that completing any such authorization is at the employee's discretion. However, whenever an employer requests a medical certification, it is the employee's responsibility to provide complete and sufficient certification. 

If an employee does not provide requested proof of a serious health condition: In cases where employees fail to provide either a complete and sufficient certification or an authorization allowing the health care provider to provide a complete and sufficient certification, requests for FMLA leave may be denied.

Requesting medical recertifications for an ongoing serious health condition: The regulations allow recertification no more often than every 30 days. For conditions that are certified for a minimum duration of more than 30 days, you must wait to request a recertification until that period has passed. 

Exceptions: In all cases, you may request recertification every six months. You may also request recertification in less than 30 days: if:

  • When employees request an extension of leave; or
  • if the circumstances described in the previous certification have changed significantly; or 
  • if you receive information that casts doubt upon an employee's stated reason for the absence or the certification's continuing validity.

You may also request a new medical certification each leave year for medical conditions that last longer than one year. Such new medical certifications are subject to second and third opinions.

Employers may request fitness-for-duty certification in certain situations: If a worker was absent on FMLA leave due to his or her own serious health condition, you may require fitness-for-duty certification if your organization has a uniformly applied policy. It must require all similarly situated employees who take leave for such conditions to submit a certification from the employee's own health care provider that the person is able to resume work.

Fitness-for-duty certification should address the employee's ability to perform the essential functions of the position, and as an employer, you need to appropriately notify them that this information will be required and provide a list of essential functions. 

You may also require a fitness-for-duty certification up to once every 30 days for a worker taking intermittent or reduced schedule FMLA leave if reasonable safety concerns exist regarding the employee's ability to perform their duties based on the condition for which leave was taken.

If an employee fails to submit a properly requested fitness-for-duty certification, then you may delay job restoration until he or she provides the certification. If certification is never provided, reinstatement may be denied.

If an employee fails to timely submit a properly requested medical certification: Unless there is sufficient explanation for a delay in providing certification, FMLA protection for the leave may be delayed or denied. If medical certification is never provided, then the leave is not FMLA leave.

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Job restoration

On return from FMLA leave (whether block or intermittent leave), the employer is required to return the employee to the same job, or one that is nearly identical (equivalent). If the worker is not returned to the same position, a nearly identical job must:

  • offer the same shift or general work schedule, and be at a geographically proximate worksite (i.e., one that does not involve a significant increase in commuting time or distance);
  • involve the same or substantially similar duties, responsibilities, and status;
  • include the same general level of skill, effort, responsibility, and authority;
  • offer identical pay, including equivalent premium pay, overtime and bonus opportunities, profit-sharing, or other payments, and any unconditional pay increases that occurred during FMLA leave; and
  • offer identical benefits (such as life insurance, health insurance, disability insurance, sick leave, vacation, educational benefits, pensions, etc.)

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Employer notice

Every employer covered by the FMLA is required to post a notice on its premises explaining the FMLA's provisions.  Notice must be kept posted in conspicuous places for employees, and must provide information about eligibility and the procedures for filing complaints of violations of the FMLA with the Wage and Hour Division of the U.S. Department of Labor. Employers that willfully violate this posting requirement may be subject to civil money penalties for each separate offense. For current penalty amounts, see www.dol.gov/agencies/whd/fmla/applicable_laws .

As an employer, you must also include this general notice in employee handbooks or other written guidance to employees concerning benefits. If no such materials exist, must distribute a copy of the notice to each new hire.

Unless there are extenuating circumstances, an employer must notify an employee whether he or she is eligible to take FMLA leave within five business days of the employee request (or when you as an employer find out that leave may be for an FMLA purpose). If the individual is not eligible for FMLA, you must provide at least one reason why he or she is ineligible. Your designation notice must also notify the employee of the specific expectations and obligations associated with FMLA leave. Among other information included in this notice, you must inform the employee:

  • whether the employee will be required to provide certification of the FMLA-qualifying reason for leave; 
  • the employee's right to substitute paid leave (including any conditions related to such substitution, and the employee's entitlement to unpaid FMLA leave if those conditions are not met);
  • whether paid leave will be substituted for unpaid FMLA leave; and 
  • whether you will require the employee to provide a fitness-for-duty certification to return to work (unless a written document clearly states that such certification will be necessary, in which case you may also provide oral notice of this requirement). 

Additionally, if the amount of leave needed is known, you must inform the employee of the number of hours, days, or weeks that will be counted against the employee's FMLA leave entitlement. Where it is not possible to provide the number of hours, days, or weeks that will be counted as FMLA leave in the designation notice (e.g., where the leave will be unscheduled), an employer must provide this information upon request by the employee. This is required no more often than every 30 days, and only if leave was taken during that period.

Finally, if the information included in the notice of rights and responsibilities changes, you must inform the employee of such changes within five business days of receipt of the employee's first notice of the need for FMLA leave after any change. Employers are also expected to responsively answer questions from employees about their rights and responsibilities.

Employee notice

When an employee requests FMLA leave (or when you as an employer find out that leave may be for an FMLA purpose), you must notify the employee of his or her eligibility to take leave and rights and responsibilities under the FMLA. Once you have enough information to determine that leave is FMLA-qualified, you must notify the employee that the leave will be counted as FMLA leave.

Employees seeking to use FMLA leave are required to provide 30-day advance notice of the need to take FMLA leave when the need is foreseeable and such notice is practicable. If leave is foreseeable less than 30 days in advance, the employee must provide notice as soon as feasible – generally, either the same or next business day. When the need for leave is not foreseeable, the employee must give notice to the employer as soon as practicable under the facts and circumstances of the particular case. Absent unusual circumstances, employees must comply with the employer's usual and customary notice and procedural requirements for requesting leave.

Employees must provide sufficient information for an employer to reasonably determine whether the FMLA may apply to the leave request. Depending on the situation, such information may include that the employee is incapacitated due to pregnancy, has been hospitalized overnight, is unable to perform the functions of the job, and/or that the employee or employee's qualifying family member is under the continuing care of a health care provider.

When an employee seeks leave for an FMLA-qualifying reason for the first time, the employee need not expressly assert FMLA rights or even mention the FMLA. However, when an employee seeks leave due to an FMLA-qualifying reason for which you have previously provided FMLA-protected leave, the employee must specifically reference either the qualifying reason for the leave or the need for FMLA leave.

An employee must comply with an employer's call-in procedures unless unusual circumstances prevent the employee from doing so. In such cases, the employee must provide notice as soon as they can reasonably do so. If the employee fails to provide timely notice, he or she may have the FMLA leave request delayed or denied and may be subject to whatever discipline the employer's rules provide.

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Military provisions

The FMLA provides additional leave entitlements and accommodations for family members of active duty service personnel.

These eligible employees are entitled to a specific category of FMLA leave referred to as military family leave. There are two types of military family leave:

  • Qualifying Exigency Leave. This refers to situations arising from the foreign deployment of the employee's husband, wife, son, daughter, or parent with the Armed Forces.
  • Military Caregiver Leave. If the employee is the servicemember's husband, wife, son, daughter, parent, or next of kin, he or she is entitled to take up to 26 workweeks of leave during a "single 12-month period" to care for a seriously injured or ill covered servicemember. 

There are several issues associated with implementing these rights, which are summarized here. For a more detailed explanation of your responsibilities as an employer, consult Chapter 5, "Military Family Leave," of The Employer's Guide to the Family and Medical Leave Act, from the Wage and Hour Division of the U.S. Department of Labor.

Need help with the demands of FMLA leave and other absence management issues? 

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Frequently asked questions about FMLA

What conditions qualify for FMLA?

A covered employer must grant FMLA leave to an eligible employee in these situations:

  • the birth of a son or daughter, and to bond with the newborn infant;
  • the placement with the employee of a child for adoption or foster care, and to bond with them;
  • to care for an immediate family member (husband, wife, child, or parent – but not a parent "in-law") with a serious health condition;
  • to take medical leave when the employee is unable to work because of a serious health condition; or
  • for qualifying exigencies arising out of the fact that the employee's spouse, son, daughter, or parent is on covered active duty or call to covered active duty status as a member of the National Guard, Reserves, or Regular Armed Forces.

When can you use FMLA?

To qualify for leave in any of the situations noted above, you must work for a covered employer; have worked 1,250 hours during the 12 month period before the start of leave; work at a location where the employer has 50 or more employees within 75 miles; and, have worked for the employer for 12 months. 

What is covered under FMLA?

FMLA is a Federal Government Labor Department requirement that provides eligible workers up to 12 workweeks of unpaid leave in a 12 month period for certain illness and medical conditions, or to take care of family responsibilities. The regulations require group health benefits to be maintained while taking FMLA leave. Workers are also entitled to return to their same or an equivalent work position at the end of their leave.

Does FMLA pay full salary?

No, the FMLA only requires a company to provide unpaid leave. However, depending on the circumstance, you may use accrued paid vacation leave, paid sick or family leave for some or all of the FMLA leave period. 

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Disclaimer

Reference:

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

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