The Basics of the FMLA
The Family and Medical Leave Act of 1993 (FMLA) provides job protection for employees who take leave for certain qualified family and medical reasons.
The law gives employees the right to take unpaid leave for up to 12 weeks (26 for qualifying military caregivers) during a 12-month period. That leave can be taken in a single block, in smaller units of time, or on a part-time basis if medically necessary.
FLMA also preserves the employee’s right to return to their job, or to a nearly identical position. And, it ensures that their time away is not held against them in hiring, promotion, or disciplinary actions.
Who is eligible?
To be eligible, an employee must work for a covered employer. Typically, this includes private employers with 50 or more employees, as well as government employers and school districts of any size.
Additionally, employees must meet three standard criteria.
- They must have worked for their employer for 12 months. Those months do not need to be consecutive, but a break longer than seven years generally resets the 12-month clock.
- In those 12 months, an employee must have worked at least 1,250 hours, or about 24 weeks.
- Employees must work at a location with at least 50 employees within 75 miles. For example, if you have a branch location with fewer than 50 employees in a 75-mile radius, the employees of that branch will not be eligible to take FMLA leave—unless your company’s policies state otherwise. Telecommuting employees must report to an office with at least 50 employees in a 75-mile radius.
What reasons qualify for FMLA leave?
There are three general family and medical reasons for which FMLA-covered leave can be taken.
The first is known as a “serious health condition.” If your employee—or their spouse, child, or parent—has a serious health condition, your employee may take FMLA leave to receive treatment or care for the affected family member.
“Serious health condition” is a legal term defined by Department of Labor (DOL) regulations. Examples include:
- Condition that requires overnight hospital stay
- Condition that incapacitates for more than three consecutive days and requires ongoing treatment
- Chronic condition that periodically incapacitates and requires treatment at least twice a year
- Pregnancy-related prenatal care, complications, and childbirth
The law also offers protection when employees add to their family. Both men and women are offered the same opportunity to take FMLA leave to bond with a newborn child, or a child placed with the family via adoption or foster care. This leave must be taken within a year of the child’s birth or placement. Your policies may require married spouses who both work for the same employer to share the 12 weeks of leave.
Additionally, members of the military and their families are offered leave entitlements for specific types of deployments and to care for covered service members with serious illnesses or injuries.
What are employer obligations?
All employers must designate a 12-month period to calculate the limits of FMLA leave. There are several options for determining this period:
- Calendar year
- Any fixed 12-month leave year
- A 12-month period measured forward
- A rolling 12-month period measured backward
You are required to provide notice to all employees of their FMLA rights. This includes posting a general notice to workers, as well as providing this notice in an employee handbook. If the organization does not have an employee handbook, the notice should be distributed to new hires.
When an employee becomes eligible for leave, you must give the employee the notice of eligibility. You can create your own form or use the DOL Form WH-381.
This notice is required to include the following:
- The employee’s eligibility or, if not eligible, the reason
- The identified 12-month period for calculation of leave limits
- Limits determined on first instance of absence for qualifying reason in applicable 12-month period
- Whether a medical certification will be required
- The right to use paid leave
- The right to maintain health benefits
- Any required payments to maintain health benefits
- The right to return to the same position following the period of leave
What is the FMLA leave process?
An employee may elect—or the employer may require—use of accrued paid leave (vacation, sick, personal, etc.) for periods of unpaid FMLA leave. You will pay the employee normal sick leave/vacation time pay during this time, and the leave will still be protected under the FMLA.
Your employees must provide notice that they are taking FMLA-covered leave. If possible, they must give, at least, a 30-day notice. If they have less than 30 days, they must give notice as soon as possible.
In order for you to identify the leave as eligible for FMLA, employees are required to provide appropriate information. They do not have to provide medical records, but employers can require a medical certification confirming a serious health condition. If you have requested medical certification, your employee must provide that information within 15 calendar days.
Additionally, employees should communicate any change in status while they are on leave.
Detailed regulations govern the way in which employers must act to comply with the FMLA requirements. More information is available on the DOL’s website.
To help prepare your organization’s benefits plan, contact your American Fidelity account representative.