by Employer Pass, on Aug 31, 2021 6:22:00 AM
The Family and Medical Leave Act (FMLA) is a federal labor law that aims to provide balance between workplace demands and family needs, and is one of the many components of managing absence and leave that employers should be familiar with. The FMLA requires covered employers to grant eligible employees job-protected leave for qualifying family or medical reasons. Use this guide to better understand FMLA and how to maintain FMLA compliance for your company.
What is the FMLA?
FMLA for Employers
As a part of HR legal compliance, employers must understand the definitions, requirements, and guidance pertaining to FMLA.
Compliance with FMLA is required for employers with 50 or more employees.
The definition of employee is broad and can include independent contractors. While employee counts are based on every working day during each of the 20 or more calendar work weeks in the current or previous year. These 20 work weeks do not have to be consecutive either, so it is important for employers with fluctuations around the 50-employee mark to monitor fluctuations closely to ensure compliance. While a company with ownership interest in other entities may form a single integrated employer.
FMLA for Employees
For an employee to be eligible for FMLA the individual must have been employed with the current company for at least 12 months. These months also do not have to be consecutive. Any week that the employee was paid counts toward that requirement.
The employee must have also worked at least 1,250 hours in the 12 months prior to the requested FMLA leave. In determining those hours, it is best to use Fair Labor Standards Act (FLSA) compensable hours as a guide.
For employees who are exempt, having met the 1,250 hours is assumed. In any disagreement, it is the employer’s burden to prove that the requirement was not met to deny eligibility.
The employee must also report for work at a site with at least 50 employees or at least 50 employees across sites in 75 miles. This is measured as the shortest route from the employee’s work site using transportation over public routes.
FMLA Notice Requirements
Every covered employer must post an FMLA notice in a place that is visible to both employees and applicants. This notice outlines FMLA basics and provides instruction on how to file a complaint with the Department of Labor. If requested, covered employers must make the notice available in other languages.
A covered employer must still post notice, usually done within the employee handbook, even if they don't employ any eligible employees. While there is no set way of how to word the FMLA section of your employee handbook, the section must minimally include the following:
- Denote 12-month period
- Reconcile FMLA leave with other policies
- Outline method to request leave
- Fitness-for-duty certification
- Accrual of benefits during leave
- Note increments in which leave can be taken
- Describe protection against employee abuse of FMLA leave
The inclusion of these elements is intended to fully inform employees of what FMLA is and how to request leave.
FMLA Eligibility Tracking and Employee Record Maintenance
Employers are also expected to keep meticulous records on FMLA eligibility, requests, use, and disputes. Create reports and maintain records to track the following for starters:
- FMLA leave dates
- FMLA hours taken
- Employee leave requests
- Employer responses
- Employer policy information
- Insurance premium payments
- Leave disputes
- Medical records, as needed
Some of the required information is not specific to FMLA, such as payroll records and employee data.
Medical Records Associated with FMLA
The medical records associated with FMLA leave that need to be preserved include certifications, re-certifications, and medical histories. These records must be kept separate from other personnel files for Health Insurance Portability and Accounting Act (HIPPA) compliance purposes.
Military Records Associated with FMLA
In the case of information relating to military family leave provisions, the records must be separated from both personnel and other FMLA records. Due to the complications that can arise from tracking these records, most employers rely on payroll outsourcing services to remain in FMLA compliance and reduce payroll errors that could occur.
Types of FMLA Leave
FMLA Parenting Leave
Parenting leave is perhaps the most frequently utilized form of FMLA leave. This can be taken following the birth of or to care for a newborn child. It can also be used to place such a child in foster care or complete adoption processes. Parenting leave can also be used in the event pregnancy related complications arise.
FMLA Serious Health Condition Leave
Serious health condition leave is another frequent type of FMLA leave. The FMLA defines a serious health condition as defined as an illness, injury, impairment, physical condition, or mental condition that requires either inpatient care or continuing treatment by a healthcare provider.
Inpatient care applies to any period of incapacity where the individual is unable to work, attend school, or perform activities of daily living.
Continuing treatment applies to any period of incapacity of three or more days with the need for any further treatment or incapacity relating to the same condition.
Serious health condition leave can also be used for an eligible employee to care for a child, spouse, or parent with a serious condition as well.
Military-Related Forms of FMLA Leave
There are also a couple of military-related forms of FMLA leave. The first is an exigency leave for military personnel being called to active duty.
The second is military caregiver leave, which is available to family members of armed forces or certain veterans. In such a case, eligible employees can take up to 26 weeks of leave in a 12-month period to care for a covered service member with a serious illness or injury.
FMLA Notification and Response Requirements
How Employees Submit an FMLA Leave Request
While an employee must provide notice of taking leave, they do not need to specifically mention FMLA.
Employers are expected to know if a submitted notice of leave is FMLA eligible and make that known. Employers can still create a leave form to request FMLA leave, but employees do not have to make an initial notice on paper.
If leave is foreseeable, the notice must be at least verbal. If the leave is unforeseeable, enough information to determine leave eligibility must be provided to the employer.
How to Respond to an FMLA Leave Request
Employer responses must be timely and adhere to the following rules:
- Employers must provide employee with Notice of Eligibility to take FMLA leave, within five days of the request submission
- With each eligibility notice, employers must provide Notice of Rights and Responsibilities
- Employers must provide notice that leave is FMLA qualified within five days of affirmative eligibility determination
However, sometimes circumstances require that more information is needed to determine eligibility.
Serious Health Condition or Military Related FMLA Leave Request
When an employee seeks serious health condition, military caregiver, or military family qualifying exigency leave, the employer can request certifications to gather medical and related information to determine eligibility.
Employees then must provide requested certifications within 15 days, if practicable, and absorb any costs associated with those certifications. If a certification is incomplete, employers must allow seven days to fix any issues.
It is also notable that fitness-for-duty certifications can only be requested in a uniform manner, and any recertification can only be requested once in a 30-day period.
What to Do if an Employee is on FMLA Leave
Track FMLA Leave
Most importantly, an employer must accurately track and calculate available leave hours. While leave entitlements are measured in weeks, the leave taken can be measured differently.
Leave can also be intermittent. With intermittent leave, time can be taken in increments no larger than those measured for other forms of leave and no greater than one hour.
For part-time workers with irregular schedules, calculate the average number of hours worked to determine what constitutes a leave week.
Example: An employee who usually works 20 hours a week, is entitled to 24 weeks of leave. If the leave was intermittent and that same employee needs 10 hours off per week, they would exhaust that leave after 48 weeks.
Tracking this leave seems complicated but absence and leave management solutions can assist employers in automatically calculating time taken and remaining FMLA time off balances.
Determine FMLA Leave Pay and Benefits
Employers must also determine eligible pay and benefits during an employee’s leave. Paid leave can be substituted without impacting remaining FMLA leave entitlements.
If available, short-term disability and workers' compensation leave run concurrently. Also, holidays that are usually paid or unworked do not impact leave entitlements.
In terms of benefits, employees are generally unable to accrue benefits during leave but can elect to keep health care benefits by paying for them.
Taking Action on Employment During FMLA Leave
During an employee's FMLA leave, accounts must be made for issues like layoffs, termination, and discipline.
Since conditions associated with FMLA leave do not excuse prior performance issues and employers may require employees to call in for each day of leave, there are instances where actions can be taken on employment. These should be taken carefully and with copious evidence of mitigating circumstances to prevent discrimination suits against the employer.
Reinstating Employees After FMLA Leave
Employees returning from FMLA leave must be reinstated to the same or equivalent position held prior to leave. Pay, benefits, working conditions, and schedule must be comparable even if the prior position is no longer available.
Some circumstances where FMLA reinstatement is not required are:
- Shift change
- End of employment or project
- Key employees
- Teachers returning from leave
- Pending fitness-for-duty (unless on intermittent leave)
- Employee unable to return
- Fraud or violation of moonlighting policies
- Loss of certification/licensure
- Physical impossibility
In making decisions regarding whether to reinstate an employee, remember that FMLA requirements have a complex interplay with company policies, state-specific laws, state worker’s compensation laws, and other federal laws. The employer is required to understand or seek legal counsel to clarify the implications of such interplay and maintain FMLA compliance.
To learn more about maintaining FMLA with human capital management (HCM) software, check out our HCM Buyer's Guide eBook.