While every employer is familiar with The Family and Medical Leave Act (FMLA), many are still unclear on the details of the law.
Business owners, employers and HR managers must all become familiar with a vast number of employment regulations and labor law requirements. Staying abreast of the rules and staying in compliance with the often confusing myriad of regulatory requirements can be daunting.
According to the U.S. Department of Labor,
"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 instead of taking leave. Employees are also entitled to return to their same or an equivalent job at the end of their FMLA leave.
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. An employee 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 FMLA also provides certain military family leave entitlements. Eligible employees may take FMLA leave for specified reasons related to certain military deployments of their family members. Additionally, they may take up to 26 weeks of FMLA leave in a single 12-month period to care for a covered service member with a serious injury or illness."
Frequently Asked Questions About FMLA
Here are ten of the most commonly asked questions regarding the Family and Medical Leave Act (FMLA) and how it impacts employers (adapted from information provided by the DOL):
1. Which employers does the FMLA apply to?
The FMLA applies to all employers that are:
- public agencies, including local, state, and federal employers, and local education agencies (schools); and
- 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.
2. Who is eligible for FMLA leave?
To take leave under the FMLA, an eligible employee must:
- work for a covered employer;
- have worked 1,250 hours during the 12 months prior to the start of leave; (special hours of service rules apply to airline flight crew members)
- 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 12 months of employment are not required to be consecutive in order for the employee to qualify for FMLA leave. 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.
3. Does time taken for vacation, sick leave or PTO count toward the 1,250 hours?
The 1,250 hours include only those hours actually worked for the employer. Paid leave and unpaid leave, including FMLA leave, are not included. (Special hours of service rules apply to airline flight crew members.)
4. What do employees need to provide employers to take FMLA leave?
Employees who want to use FMLA leave are required to give a 30-day advance notice to take FMLA leave if the need is foreseeable and giving notice is practicable. If leave is needed less than 30 days in advance of giving notice, the employee must provide notice as soon as possible. This would be either the same or next business day that the need is known.
The DOL notes that,
"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 a FMLA-qualifying reason for the first time, the employee need not expressly assert FMLA rights or even mention the FMLA. When an employee seeks leave, however, due to a FMLA-qualifying reason for which the employer has previously provided the employee FMLA-protected leave, the employee must specifically reference either the qualifying reason for the leave or the need for FMLA leave."
5. What reasons allow an eligible employee to use FMLA leave?
A covered employer must grant an eligible employee up to a total of 12 workweeks of unpaid, job-protected leave in a 12 month period for one or more of the following reasons:
- for the birth of a son or daughter, and to bond with the newborn child;
- for 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 (spouse, 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.
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 service member with a serious injury or illness.
6. What are the restrictions regarding leave for the birth or adoption of a child?
Any FMLA leave taken to bond with a newborn child or for a newly placed adopted or foster child must be concluded within 12 months after the birth or placement of the child. The use of intermittent FMLA leave for these purposes is subject to the employer’s approval. If the newly born or newly placed child has a serious health condition, the employee has the right to take FMLA leave to care for the child intermittently, if medically necessary, and this leave is not subject to the 12-month limit.
7. When can a parent take leave for newborn bonding?
Both parents have the right to take FMLA leave to bond with a newborn child. A mother can also take FMLA leave for prenatal care, incapacity related to pregnancy, and for her own serious health condition following the birth of a child. A father can also use FMLA leave to care for his spouse who is incapacitated due to pregnancy or child birth.
8. Can leave be taken periodically or on a reduced work schedule?
When medically necessary, an employee may take FMLA leave intermittently. This can be done by taking leave in separate blocks of time for a single qualifying reason or on a reduced leave schedule by reducing the employee’s usual weekly or daily work schedule. When leave is needed for planned medical treatment, the employee must make a reasonable effort to schedule treatment so as not to unduly disrupt the employer’s operation.
Leave to care for or bond with a newborn child or for a newly placed adopted or foster child may only be taken intermittently with the employer’s approval and must conclude within 12 months after the birth or placement.
9. Can an employee be transferred when taking intermittent or reduced schedule leave?
Employees needing intermittent/reduced schedule leave for foreseeable medical treatments must work with their employers to schedule the leave so as not disrupt the employer’s operations, subject to the approval of the employee’s health care provider. In such cases, the employer may transfer the employee temporarily to an alternative job with equivalent pay and benefits that accommodate recurring periods of leave better than the employee’s regular job.
10. What is considered a serious health condition?
The most common serious health conditions that qualify for FMLA leave are:
- conditions requiring an overnight stay in a hospital or other medical care facility;
- conditions that incapacitate you or your family member (for example, unable to work or attend school) for more than three consecutive days and have ongoing medical treatment (either multiple appointments with a health care provider, or a single appointment and follow-up care such as prescription medication);
- chronic conditions that cause occasional periods when you or your family member are incapacitated and require treatment by a health care provider at least twice a year; and
- pregnancy (including prenatal medical appointments, incapacity due to morning sickness, and medically required bed rest).
Staying in Compliance With FMLA
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