Limitations and employer responsibilities under the FMLA
Since 1993, the Family and Medical Leave Act (FMLA) has provided two basic job protections to eligible employees:
The right to take up to 12 workweeks of unpaid leave per year for urgent family or medical needs, and the right to return to the same job or an equivalent position. Even though the Act has been around for decades, it can still prove difficult for companies to interpret. Most employers – 71% -- say that making decisions on FMLA requests is a top challenge1. This article can help by summarizing the primary features that small and mid-sized employers need to know about:
FMLA responsibilities for employers
1. You need to determine if your company is covered under the Act
While the Act covers every government organization and most larger employers in the U.S., many small business and mid-sized employers are not subject to its requirements. The basic criteria for coverage are relatively simple:
- You have 50 or more employees; and
- They worked at least 20 weeks in the current or preceding calendar year
Does your company meet the threshold for coverage?
Any 20 workweeks with 50 or more employees over the past two years will put your company over the Act's threshold, even if those weeks weren't consecutive. In addition:
- The Department of Labor (DOL) says that if a person worked any day of a calendar week, that counts as a workweek.
- You must count all full-time and part-time employees, employees on temporary leave, and those who work jointly for you and another employer.
- Independent contractors and unpaid volunteers are not counted.
2. If your company is covered under the Act, you have to notify your employees
Every covered company is required to post a notice at all worksites – 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 DOL website. Also:
- If a significant portion of your employees does not read and write English, you must provide the General Notice in a language they can read and write.
- General FMLA notice and eligibility rules should be in employee handbooks or other written guidance about benefits; otherwise, you must distribute a copy of the notice to each new hire
- If you willfully violate the posting requirement, you may be subject to penalties.
3. When an employee requests FMLA leave, you have to provide two notices within five days
A. An Eligibility Notice
The Eligibility Notice can be written or oral and must inform the employee whether they are eligible for FMLA leave. If they aren't eligible, you must state at least one reason why. (See below for employee eligibility and qualified leave criteria.) Also, if a significant portion of your workforce is not English-literate, the Eligibility Notice must be in a language in which employees are literate.
B. A Rights and Responsibilities Notice
The Rights and Responsibilities Notice must be in writing, in a language employees are literate in, and must include all of the following information:
- A statement of the period of leave that may be designated and counted against the employee's leave entitlement
- The 12-month period used to track FMLA leave usage
- Whether the employee will be required to provide certification of the need for leave
- The employee's right to use paid leave, whether the employer will require the substitution of such leave, any conditions related to the substitution, and the employee's right to take unpaid FMLA-protected leave if the employee does not meet the conditions for leave with pay
- The employee's status as a "key employee" and potential restoration consequences, if applicable;
- A "key employee" is a salaried FMLA-eligible employee who is among the highest-paid 10% of all employees, both eligible and ineligible, within 75 miles of the worksite
- The employee's right to job restoration and maintenance of benefits
- Whether the employee will be required to make premium payments to maintain health benefits and any arrangements for doing so, the consequences of failing to make payments on a timely basis, and the employee's potential liability for premium payments made by the employer if the employee fails to return to work
- The consequences of failing to meet his or her obligations
Which employees are eligible for FMLA leave?
Even if your company is covered under FMLA rules, an employee must meet all of the following criteria to be eligible:
- Has worked for you (a covered employer) for at least 12 months as of the leave start date; the 12 months need not be consecutive or full-time.
- Has at least 1,250 hours of service for your company during the 12 months immediately before the leave start date
- Works at a location where you employ at least 50 employees within 75 miles on the date notice is given; all employees on payroll are counted
Which conditions and situations qualify for FMLA leave?
To qualify for FMLA protection, leave must be taken for one or more of the following qualifying reasons:
- The birth of a child and to bond with the newborn child within one year of birth
- The placement with the employee of a child for adoption (or for foster care) and to bond with the newly-placed child within one year of placement
- A serious health condition that makes the employee unable to perform the functions of their job, including incapacity due to pregnancy and for prenatal medical care
- To care for the employee's spouse, son, daughter, or parent who has a serious health condition, including incapacity due to pregnancy, and for prenatal medical care
Any qualifying exigency arising out of the fact that the employee's spouse, son, daughter, or parent is a military member on covered active duty or call to covered active duty status
4. You must maintain the employee's group health plan benefits, as long as the employee pays their share
During FMLA-protected leave, you have to maintain the employee's coverage under any group health plan as if the employee had been continuously employed during the entire leave period. The employee must continue to pay their share of premiums; however, if they fail to do so, all other employer obligations under the FMLA continue.
5. You have to restore the employee's job after FMLA leave, with certain limitations
When an employee returns from FMLA-protected leave, they must be restored to the same job that the employee held when the leave began or to an "equivalent job" – one that is virtually identical to the original position in terms of pay, benefits, and other employment terms and conditions. However, an employee is not protected from actions that would have affected them if they were not on leave, for example, if their shift has been eliminated.
6. You must keep specific records relating to FMLA leave
FMLA-covered employers are required to make, keep, and preserve certain records. The documents can be in any form you choose but must include all of the following:
- Payroll and identifying employee data
- Dates FMLA leave is taken
- Copies of FMLA notices and documents provided by you to the employee or given to you by them. Note that any medical certifications must be treated as confidential medical records
- Any documents, including electronic records, describing employee benefits or company leave policies
- Premium payments for employee benefits
- Records of any disputes or disagreements between you and the employee regarding the FMLA request
7. You must provide added accommodations for military families
Eligible employees may take up to 26 weeks of leave per 12 months for a qualifying exigency or to care for a covered servicemember with a serious injury or illness if the employee is the spouse, son, daughter, parent, or next of kin of the servicemember. There are several issues associated with implementing these rights, which are summarized here.
To find out more about employer responsibilities under the FMLA, refer to The Employer's Guide to The Family and Medical Leave Act from the DOL.
FMLA limitations, exclusions, and items that not required of employers
1. 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 leave period. The person must follow your standard leave rules to do so, and when done, that leave is FMLA-protected.
2. Not every employee is entitled to take FMLA leave
Even if your company has to comply with the Act, many employees may not meet FMLA eligibility requirements. Due to the 12 month/1,250 hours of employment rule, most part-time employees – and newer full-time employees – are not likely to meet the threshold for eligibility. Also, many employees in remote work locations are not eligible (see "Which employees are eligible for FMLA leave?" above)
3. In general, only employment within the last seven years is counted
The 12 months of employment do not need to be consecutive – an employee can qualify for leave even with a break in employment. Typically you don't have to look back more than seven years, with two exceptions: 1) when the break is due to an employee's fulfillment of military obligations, or 2) governed by a collective bargaining agreement or other written agreement.
4. The 1,250 Hours of Service requirement only includes hours worked for the employer
Paid leave and unpaid leave, including leave under the FMLA, are not counted as hours of service.
5. Only serious health conditions qualify for FMLA-protected leave
These conditions include illness, injury, impairment, or a physical or mental condition that involves inpatient care or continuing medical treatment. The FMLA does not apply to routine medical care. The most common serious health conditions are:
- conditions requiring an overnight stay in a hospital or other medical care facility
- conditions that incapacitate 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
- pregnancy, including prenatal medical appointments, incapacity due to morning sickness, and medically required bed rest
"Incapacity" means inability to work, including being unable to perform any of the essential functions of the employee's position or inability to attend school or perform other regular daily activities.
6. Employees on FMLA leave are not exempt from layoffs
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 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.
To find out more about FMLA limitations and exemptions, refer to The Employer's Guide to The Family and Medical Leave Act from the DOL.
Employee responsibilities under the FMLA
As noted above, employees have to pay their share of group health benefit premiums to maintain coverage for themselves and their families. If their premium payment is more than 30 days late, you may drop the employee's health insurance as long as you provide sufficient written notice as outlined in The Employer's Guide. The Act also places specific obligations on employees for notice and certification (i.e., to document a situation or medical condition), which are summarized below:
1. Employee notice requirements
- If the leave is foreseeable, the employee must give at least 30 days prior notice, if possible
- The employee should also indicate when and how much leave is needed
- When leave is needed for planned medical treatment, the employer's needs should be taken into account. Employees must work with you to schedule the leave so as not to disrupt your operations – subject to the approval of the employee's medical provider.
- If the leave is unforeseeable, the employee should give notice in as timely a manner as possible, depending on the facts of the situation.
- If you have an absence call-in procedure, the employee must follow it unless prevented from doing so by unusual circumstances (for example, an accident that renders them unable to communicate through no fault of their own). In such cases, the employee must provide notice as soon as they can reasonably do so.
- Employees must provide sufficient information to let you reasonably determine whether the leave qualifies for FMLA protection. If they don't provide the required details on their own (or a family member's) medical condition or situation, you may ask additional questions to determine if the leave is FMLA-qualified.
Initial notice note: When an employee gives written or oral notice of the need for leave, it does not have to mention "FMLA" specifically but must provide enough information for you to know that the leave may be covered by the FMLA. In other words, if the employee says they are taking time off to care for a spouse who seemingly has a serious medical condition, you need to treat it as an FMLA leave request.
2. Employee certification requirements
Generally speaking, when a worker requests FMLA-protected leave for medical care or to care for a family member, you can ask for proof of a serious health condition. Employees do not have to provide their personal medical records, but you can require a document (such as a letter from a health care provider) that provides the complete and sufficient medical facts you need to determine if the request is for a serious health condition. Similarly, if the person is requesting military-related leave, you can also ask for appropriate documentation. Companies may not request medical certification for leave related to birth, adoption, or foster care, but they can request documentation to confirm the relationship.2 Employees need to be given at least 15 calendar days to get the required documentation. Other things to know include:
- When medical certification is requested, it is the employee's responsibility to provide complete and sufficient certification.
- When an employer doubts the validity of a medical certification, the worker must provide a second or third medical opinion at the employer's expense. You have to pay all associated costs.
- If medical certification is incomplete, you must state in writing what additional information is needed and allow at least seven calendar days to provide the needed information.
- To return to their job, you may request fitness-for-duty certification if FMLA leave was due to the worker's own serious health condition. However, it must be part of a policy that is uniformly applied to all employees.
HIPAA compliance note: In no case may the employee's direct supervisor contact the employee's medical provider. Under the Health Insurance Portability and Accountability Act (HIPAA) privacy regulations, employers may only contact an employee's medical provider for authentication or clarification of the medical certification by using a human resource professional, a leave administrator, or a management official. In such cases, the employee must provide the medical provider with a written authorization allowing the medical provider to disclose such information to the employer. Employers may not ask the medical provider for additional information beyond the medical certification form.
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.
For more detailed information about qualifying conditions and special situations relating to childbirth, chronic health conditions, domestic abuse, organ donation, military leave, and intermittent leave, refer to The Employer's Guide to The Family and Medical Leave Act.
Resources to help companies better manage FMLA leave and other types of absence
Workforce management software and platforms
Several leave management software platforms are available to help facilitate leave requests without paper forms, allow HR to track leave balances and approve requests, and even help keep track of employee availability, compliance, and other tasks relating to the leave management process.
Using third parties to oversee absence management can alleviate the administrative burden on your HR team, reduce paperwork, and help ensure consistency and objectivity in the treatment of employees, which is key to FMLA compliance. And since most FMLA leaves are related to an employee's health issues, outsourcing these leaves, Short Term Disability (STD), and other items to the same external resource can help maximize the success of your leave management system. If your company needs help with the demands of FMLA and other employee leave management issues, consider learning more about Guardian AbsenceWorks. It's a resource that can help simplify administration and give employers more time to focus on core business needs.
Take the first step by assessing your company's current efforts
The Guardian Absence Management ScorecardSM can help you see how effective your leave management system measures up to other companies. It will also provide customized policy and process recommendations that can help your organization drive better results.
Frequently asked questions about FMLA
What are the limitations of the Family and Medical Leave Act?
While the Act generally covers all large companies and public agencies, it does not cover every employer (smaller companies are generally exempt); it doesn't protect every employee (many part-time employees and new hires aren't eligible); it only protects a few kinds of family care and medical leave situations.
What are some of the responsibilities that employees have during their FMLA leave?
Employees must provide at least 30 days' notice if the need for leave is foreseeable and must provide certification that demonstrates the leave qualifies for protection under the Act. While on leave, employees must continue to pay their share of any health plan premiums. Finally, before returning to their duties, an employee may be required to provide a fitness-for-duty certification.
What is covered under FMLA?
FMLA is a Federal law that provides eligible workers up to 12 weeks of leave a year, without pay, for certain health problems 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 the same job or an equivalent position at the end of their leave. Your state law may include statutes or regulations that provide added protection.
What is not covered under FMLA?
The Act does not require employers to pay an employee on FMLA leave, but companies have to maintain an employee's health benefits as long as they pay their share of the premiums. Also, employees are not protected from a layoff that would have otherwise occurred (for example, because an entire department or shift was eliminated).