What is the FMLA?
The Family and Medical Leave Act, more commonly referred to as the FMLA, is a federal law that gives eligible employees the right to take up to 12 weeks of unpaid leave a year under specific circumstances related to medical and family issues.
Some people might think the statute deals just with maternity leave, but that’s far from accurate.
There are many FMLA requirements.
Most fundamentally, the FMLA gives employees 12 weeks of job-protected leave for:
- The birth of a child.
- The placement of a son or daughter with the employee for foster care.
- A serious health condition that prevents the employee from doing his job.
- The need to care for a spouse, son, daughter or parent who has a serious health condition.
- Certain qualifying exigencies relating to a spouse, son, daughter or parent in the military.
In addition, eligible employees who are the next of kin of a service member with a serious injury or illness can take up to 26 weeks during a single 12-month period to care for the service member.
During the period of leave, the employee’s job is protected. Employers must maintain the health benefits of employees who take FMLA leave and give them back their job (or an equivalent one) when they come back.
That’s it in a nutshell. But inside that shell are a lot of nuances and details.
What exactly is a “serious health condition”? What’s a “qualifying exigency”?
Does the FMLA cover paternity leave? How can employers prevent FMLA abuse?
There’s a lot of ground to cover. And we have it all covered right here. Click to jump ahead.
- Who’s Eligible for FMLA Leave?
- FMLA Guidelines for Employers
- Maternity Leave
- Paternity Leave
- FMLA for Serious Health Condition
- Intermittent FMLA
- FMLA Abuse
- FMLA Record-keeping Requirements
- FMLA Forms
Who’s Eligible for FMLA Leave?
For FMLA eligibility to be triggered, two conditions must be met. First, employers must be covered by the law. Second, employees must meet specific eligibility requirements.
Let’s start by talking about which employers are covered.
In the private sector, employers must follow the FMLA’s rules if they have employed at least 50 workers in 20 or more workweeks in the current or previous calendar year. The workweeks don’t have to be consecutive, and “workweek” really means any part of a week.
Say an employer has 50 workers on its payroll, but half of them come in only once or twice a week. If the 20-week requirement is met, the employer must comply with the FMLA.
Here’s another important point regarding which employers are covered: Once an employer hits that 50/20 threshold, reducing the number of workers to fewer than 50 doesn’t make coverage go away. The threshold applies to the current or previous calendar year. That means that if they met the 50/20 threshold in the previous calendar year, they’re still subject to the law.
Worth the Read:
- Should Your Employees on FMLA Earn Vacation Time?
- FMLA Eligibility: Do ‘Bonus Hours’ Count Toward the 1,250?
- How Do You Calculate FMLA Eligibility? Tell Workers Now
Who Counts as An Employee, and Who Doesn’t?
Any employee who works in the U.S. or any of its territories or possessions gets counted. Part-timers? Count them. Ditto for seasonal, temporary and (of course) full-time employees.
What if they’re on your payroll records but didn’t get paid that week? Count them. Also count them if they’re on leave, even for disciplinary reasons.
Not everyone gets counted. Don’t count unpaid volunteers, former employees who have left, or employees working outside the U.S. and its territories.
Note: Public agencies and local educational agencies must meet FMLA requirements regardless of how many people they employ.
Just two more quick points about which employers are covered by the statute.
First, be aware of the concept of an “integrated employer.” This means separate businesses can be considered a single employer under the FMLA. How do you know if you’re an integrated employer – or working for one? Nothing is black and white here, but applicable factors in making that call include whether there is common management; the specific nature of the relationship between the separate businesses; whether there is centralized control of labor operations; and whether there is common financial control or ownership.
Second, you need to know about the concept of “joint employer.” Under the FMLA, a joint employer is one that exercises a significant degree of control over employees together with another employer.
Let’s say an employee is placed at a temporary factory job by an employment agency. If both exercise significant control over working conditions and work performed in general, they’re probably joint employers under the FMLA. This means they both must count the employee for purposes of deciding whether they have enough workers to be covered by the FMLA.
Which employees are eligible? As we mentioned in our discussion of covered employers, full-time, part-time, seasonal and temp workers are all potentially eligible, while unpaid volunteers aren’t.
While employers trying to figure out whether they must meet FMLA requirements need to know the 50/20 threshold discussed above, employees (and employers too) should be aware of additional numerical thresholds that determine whether employees are eligible for FMLA leave.
First, the employee must have worked for the employer for at least 12 months as of the start of FMLA leave. The 12 months don’t have to be consecutive, although employers generally don’t have to count time worked if there’s been a break of seven years or more. Exceptions include a long break that’s caused by military service and collective bargaining agreements that say the employer intends to rehire the employee after the break.
Second, the employee must have worked at least 1,250 hours for the employer during the 12 months right before the leave begins. Only time that is actually worked is counted toward the total. This means any hours counted as paid time off, like vacation or holiday time, don’t get employees any closer to that magic number of 1,250.
If you don’t keep accurate time records as an employer, look out. If that’s the case, you have the burden of proving the employee didn’t meet the hours requirement.
Third, the employee must work at a location where the employer has at least 50 employees within 75 miles of the worksite at the time that the employee asks for leave. The 50 number is determined by the number of people on the payroll, including part-timers, temporary help and seasonal workers. When there’s no fixed worksite (think landscapers or truckers, for example), the relevant location is where they report, the place from which work is assigned, or their home base.
FMLA Guidelines for Employers
There are several important applicable notice requirements when it comes to the FMLA.
First, employers must give employees a general notice of their rights under the statute. They must post or display a general notice, and this is usually done in the form of a poster. If they have any employees eligible for FMLA leave, they must also provide employees with separate written notice about their FMLA rights. This is generally done in employee handbooks.
Employees have notice requirements too. Specifically, they need to tell their employer that they need to take FMLA leave. Employers can generally require employees to follow their regular policy for requesting a leave of absence. Notice can be provided orally or in writing.
How early does the employee have to give notice of a need for FMLA leave? The general rule is 30 days, but that’s assuming the need for the leave is foreseeable and it’s pretty easy to give that much notice.
Sometimes the need for leave is unexpected, and the FMLA doesn’t shut employees out when that’s the case. Instead, when a need for leave arises suddenly, the employee has to provide the employer with notice of a need for FMLA leave as soon as it’s practical to do so. This is a gray area, and whether the notice was given soon enough will depend on each case’s unique facts.
Once an employee asks for FMLA leave, the employer has five days to give the employee an eligibility notice that says whether the employee is eligible for the leave. The notice can be provided orally or in writing.
Within those five days, the employer also must give the employee written notice that includes all of the following:
- A statement that the leave can be counted against the employee’s annual FMLA entitlement.
- The period the employer uses to track FMLA leave.
- A statement about whether certification will be needed.
- Information about the right to use paid leave, whether paid leave must be substituted, conditions regarding substitution, and notice of the right to take unpaid leave if paid leave is not available.
- If the employee is a “key employee” (a salaried worker who is among the highest paid 10% of all employees), a statement saying restoration may be denied. Denial is allowed if returning the worker to the job would cause the employer to suffer substantial economic injury.
- The right to job restoration as well as the right to maintain benefits during the leave.
- Information about whether the employee will need to pay health benefits premiums and the employee’s possible liability for payments made by the employer if the employee never comes back.
- A notice of the consequences of the employee not meeting FMLA duties.
Worth the Read:
- Turns Out HR Pros & Managers Can Be Liable (Personally) for FMLA Violations
- 5 Times It’s OK to Fire an Employee on FMLA Leave
- 5 FMLA Questions Almost All Managers Can’t Answer
The birth of a child is one of the main reasons people take FMLA leave. The act covers leave for the birth of a child as well as leave used to bond with the newborn during the first year after the child is born.
Worth the Read:
- Employee on Maternity Leave Fired: Here’s Why the Company Won the Lawsuit
- What HR Managers Told Us: Offering Paid Maternity Leave
- When Pregnancy and Light Duty Collide: What You Need to Know
It’s important to remember that new fathers are entitled to take FMLA for the birth of a child in the same way that new mothers are.
Worth the Read:
- Paternity Leave: Will Everybody Eventually Offer It?
- A 2020 Vision: Is Your Benefits Package Ready For the Future?
- New Dads Score $1.1M Settlement in EEOC Parental Leave Discrimination Case
Otherwise eligible employees can take FMLA leave in connection with the placement of a child for adoption or foster care, and to bond with a newly placed child within one year of the placement. Again, don’t forget that this right applies equally to males and females.
Important tip: Leave taken in connection with a pending placement for foster care or adoption can count as FMLA leave. In other words, employees can take FMLA leave in cases of foster care or adoption even before the placement is made or the adoption is complete.
FMLA for Serious Health Condition
The other major reason employees take FMLA leave is due to a “serious health condition.”
A serious health condition comes in a few different forms.
An overnight stay in a hospital, hospice or residential medical care facility qualifies.
What if an employee stays overnight for an elective procedure? That qualifies.
If a period of incapacity lasts more than three straight calendar days, it’s a serious health condition if it required at least two in-person visits with a healthcare provider within 30 days of the first day of incapacity. The first visit must take place within seven days of the first day of incapacity.
It’s also a serious health condition if there’s a period of incapacity lasting more than three days and there is 1) at least one in-person visit with seven days, and 2) the visit results in a regimen of continuing treatment.
Chronic conditions can be serious health conditions. These are covered as serious health conditions as long as they require at least two in-person visits a year. Important point here: Episodic conditions can qualify as covered chronic conditions.
Any period of incapacity that is caused by pregnancy or for prenatal care is covered here too.
Permanent or long-term conditions qualify here as well. In addition, the definition of chronic health condition also covers restorative surgery that follows an injury as well as a condition that would probably lead to a period of incapacity of more than three days if treatment was not provided.
An employee can take FMLA due to his or her own serious health condition or due to the serious health condition of a spouse, parent, son or daughter. Son or daughter generally means someone under the age of 18. But keep in mind that a parent can take FMLA leave for a son or daughter who is 18 or older if the son or daughter has a disability and is in need of care due to a serious health condition.
In some cases, employers can require employees to submit certification in support of a request for leave under the FMLA. The certification is designed to verify the existence of a qualifying condition and to help the employer better understand the need for the leave.
If the employee doesn’t provide the certification, the employer can deny the request for FMLA leave.
The employer must give the employee notice that a certification is required, and this should be done via the notice the employer gives the employee within five days after learning of a need for FMLA leave.
The employee generally then has 15 days to provide the requested certification.
What must a certification include? For starters, it should provide information about the condition, such as when it began and how long it is expected to last. It should also have contact information for the treating medical provider.
If the employee is the one with the serious medical condition, the certification should say whether he can work and how long any inability to work is likely to last.
If it’s a family member who has the serious health condition, then the certification should estimate the duration and frequency of the leave that will be needed.
The certification should also say whether the leave needed will be continuous or intermittent.
If the employee gives the employer a certification that is incomplete or insufficient, the employer has to give the employee a written notice saying what further information is needed. It has to give the employee at least seven days to fix the problem.
If the employee doesn’t come back with sufficient information after that, then the employer can deny the request for FMLA leave.
Some have called intermittent FMLA leave HR’s biggest headache, and for good reason. Tough issues can arise here. Employers must be careful to grant leave required by the statute while doing their best to prevent abuse and control labor costs.
Employees can take intermittent leave when it’s medically necessary to do so. They must ask for intermittent leave, as opposed to a specific block of time.
Important: Employees don’t have to mention the FMLA by name in order for an employer’s duties under the statute to be triggered.
Here are steps that employers can take to keep the issue of intermittent leave under the FMLA manageable.
Many employers give employees FMLA certification forms that include boxes their doctors can check. But in fact, employers have the ability to ask their employers for information that is more specific.
For example, the employer can ask when the condition began and how long it is likely to last.
In addition, the employer can ask for the medical facts relating to the condition and for the healthcare provider’s contact information.
Also, it can ask why intermittent leave is needed as well as for information about the dates of planned leave or estimated frequency and duration.
It can also be a good idea to give the healthcare provider a copy of the employee’s job description or a list of essential job functions. That way, the provider will be able to do a better job of answering the questions on the form.
If an employer doubts the validity of a certification, it can ask for a second opinion. In these cases, the employer must pay the cost of the second opinion. Employers should not use a doctor it employs under contract to issue the second opinion.
If the first two opinions differ, the employer can pay for a third. The third opinion is final.
Employers can also prevent intermittent leave abuse by requiring recertification every 30 days. Recertification can also be sought if the employee asks for a leave extension, if the duration or nature of the illness has changed, or the employer receives information that calls the validity of the certification into question.
Worth the Read:
- Handling the Tricky Questions in FMLA Intermittent Leave
- FMLA: 13 Ways to Stop Intermittent-Leave Abuse
- Intermittent FMLA Exceeds Docs Estimate: What Not To Do
When it comes to employee leave, preventing FMLA leave abuse is near the top of the list of priorities for employers.
There are specific steps employers can take to help prevent employees from abusing FMLA leave.
For example, employers can make it their practice to use written leave request forms. Be careful here: Employers can’t require that a leave request be put in writing. However, using written forms as a matter of practice help discourage workers from taking leave they don’t really have to take.
Employers can also help prevent FMLA abuse by asking employees relevant questions, such as why the leave is being taken and how long the condition is expected to last. This can be accomplished by requiring the completion of a certification form, as discussed above.
Employers can also require employees taking FMLA leave to continue to follow their applicable call-in policies, and they can check in from time to time with employees who are already on FMLA leave.
Worth the Read:
- 5 Ways to Stop FMLA Abuse Dead in Its Tracks
- Here’s a Proven Template for Firing an FMLA Abuser
- 7 Tactics for Preventing FMLA Abuse
FMLA Record-keeping Requirements
Under the FMLA, employers who are covered must create and preserve specified records for at least three years.
There are no submission requirements, but the records have to be handed over to the Department of Labor on request. Records can be maintained electronically. They are to be treated as confidential and must be maintained in separate files.
The records must include payroll information and general information about employees, such as name address and job title. Terms of compensation as well as hours worked generally must be kept, in addition to information about pay deductions.
Note: If an employer is covered by the FMLA and has FMLA-eligible employees, but is not subject to the Fair Labor Standards Act’s recordkeeping requirements relating to overtime and wage compliance, it doesn’t have to keep a record of hours worked – but only if it presumes FMLA eligibility for workers who have been employed with them for 12 months and, for workers who use FMLA leave intermittently or on a reduced schedule, the employer must create a written record of an agreed-upon arrangement.
Employers also have to keep on hand information relating to the dates on which FMLA leave was taken and copies of FMLA notices.
Documents that discuss employee benefits and policies regarding unpaid leave must also be maintained.
In addition, employers must keep records regarding premium payments for employee benefits.
If there has been a dispute with an employee regarding FMLA leave and there are records relating to the dispute, such as emails, those records need to be kept as well.
Worth the Read:
- 9 FMLA Record-Keeping Requirements Employers Need to Know
- Oversight on FMLA Form Costs Employer $173K
- She Won’t Return FMLA Paperwork — What Can the Company Do?
Here’s a list of useful form for employers.
- Complete FMLA Form Pack
- FMLA Intermittent Leave Time Keeper Form
- FMLA Dispute Form
- FMLA Fitness for Duty Certification Form