Employer Insights

Family and Medical Leave Act (FMLA) Requirements & Guide

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 a balance between workplace demands and family needs and is one of the many components of managing employee 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 FMLA? 

The Family and Medical Leave Act (FMLA) is a federal labor law that helps provide leave for employees during specific life-events. 

Businesses should consider modernizing their timekeeping processes, and learn more about what is time and attendance software in order to better manage compliance with things like FMLA leave.

FMLA Requirements for Employers

Employers must understand the definitions, requirements, and guidance pertaining to FMLA to ensure basic legal and HR compliance.

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 workweeks in the current or previous year. These 20 workweeks 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 an ownership interest in other entities may form a single integrated employer.

FMLA Requirements for Employee Eligibility

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 the Fair Labor Standards Act (FLSA) compensable hours as a guide. 

Note: the FLSA is also a core federal labor law that employers should be aware of and comply with. 

For employees who are exempt, having met the 1,250 hours is assumed. This FLSA exemption guide can also help determine if an employee is exempt or non-exempt. In any disagreement, it is the employer’s responsibility 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 worksite 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 instructions on how to file a complaint with the Department of Labor. If requested, covered employers must make the notice available in other languages.

Even if they don't employ any eligible employees, a covered employer must still post a notice. Including this information within the company's employee handbook can also be a good safeguard. 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

Keep in mind that some of the required information that's expected for record maintenance 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.

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Types of FMLA Leave

According to FMLA legislation, there are six separate qualifying reasons for FMLA leave or FMLA leave types.

FMLA Parenting Leave

Parenting leave is perhaps the most frequently utilized form of FMLA leave.

There are two different reasons regarding parental leave that employees may cite when requesting time off.

Birth and Bonding Leave

Employees can take parental leave under FMLA for the birth of a new child, in the event pregnancy-related complications arise, or following the birth of a child. This type of leave may not be taken intermittently unless consent from the employer is obtained

Employees, both male and female, may take up to 12 weeks of continuous leave under this reason. Entitlement to birth and bonding leave expires after the child turns 12 months old. 

Adoption and Foster Care

Leave may also be taken in preparation for the adoption or foster placement of a child in an employee’s care. This type of leave may only be taken if time off is needed for the adoption or foster process to proceed and should be intermittent (or simply used as needed)

Any leave used after adoption or foster placement to bond with the child must be used as continuous time off. 

Both male and female employees are entitled to up to 12 weeks of leave in a 12-month period. Entitlement to adoption and foster care leave expires after the child turns 12 months old. 

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.

There are also two capacities in which leave may be taken for a serious health condition. 

Serious Health Condition of the Employee

In order to for an employee to qualify for this type of serious health condition leave, a health care provider must determine that due to the serious health condition or treatment of the said condition, an employee: 

  • Is unable to work at all, or
  • Is unable to perform any of his essential duties or responsibilities

Employees may use this type of leave intermittently or as needed for up to 12 weeks in a 12-month period.

Qualified Family Member Serious Health Condition

An employee may also use this type of leave if they are required in order to provide care for a family member with a serious health condition. Family members are intended to be direct family members and can include a:

  • Spouse
  • Child
  • Parent 

Health condition examples in which an employee may take leave under this type of qualifying reason can include: 

  • When the family member is unable to care for their own needs due to the condition
    • Needs can be medical, safety, or more day-to-day
  • When the family member needs transportation for treatment or care
  • To provide psychological comfort and reassurance to the family member with a serious health condition

Employees may use this type of leave intermittently or as needed for up to 12 weeks in a 12-month period.

Military-Related Forms of FMLA Leave

There are also two types of military-related forms of FMLA leave.

Active Duty Leave

The more common type of military leave, active duty leave, can be taken when a qualified family member is called away to active duty.

Employees may use this type of leave when:

  • The deployment of the family member creates a need for a change in child care arrangements involving the employee
  • The employee is attending a military ceremony or briefing
  • The employee wishes to spend time with a military member on Rest and Recuperation (R&R) leave during deployment
  • The employee needs to make or take care of financial or legal arrangements for the family member in their absence while on deployment
  • The employee is required for certain tasks regarding caring for the parent of an active military member during deployment

Employees may use this type of leave intermittently or as needed for up to 12 weeks in a 12-month period.

Military Caregiver Leave

The second type of military FMLA leave is military caregiver leave. This type of leave may be used to care for a covered service member with a serious health condition. The reason this type of leave is separate from other types of Serious Health Condition leave is that employees are entitled to up to 26 weeks of leave in a 12-month period, so long as the person being cared for is a qualified service member.

It is important to note that FMLA has different guidelines for military caregiver leave for veterans and active service members.

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 the 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:

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.

Managing this type of leave can seem complicated, but FMLA tracking software, or absence and leave management solutions, can help employers automatically track time taken, calculate remaining FMLA time off balances, and store any related documentation and requests. 

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 the remaining FMLA leave entitlements.

If available, short-term disability and workers' compensation can 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 insurance and other employee health benefits by paying the premiums.

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:

  • Layoff
  • 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.

State FMLA Leave Laws

It is crucial that, in addition to understanding federal FMLA, employers also maintain awareness of any state leave laws that may run concurrently with or have even stricter requirements than federal FMLA in some cases. 

It's becoming increasingly common for states to have state-specific FMLA or or related sick leave laws. The Oregon Family Leave Act (OFLA), for example, is similar to FMLA in many respects, but also has some key differences. There are also paid sick time requirements in Oregon, which coincide with the OFLA. And in 2023, Oregon will also require paid OFLA in addition to the paid sick time requirements already in place.  

Businesses that struggle with maintaining productivity when employees take FMLA leave, may want to consider employee scheduling software as a solution. So that when employees take federal leave such as FMLA, you can ensure your schedule accounts for it.

To learn more about how leave and employee absence can be managed along with the other employee operations within the human capital management (HCM) spectrum, check out this HCM Buyer's Guide eBook.

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Topics:Federal Labor Laws

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