Signed into law February 5, 1993, the Family and Medical Leave Act (FMLA) provides unpaid, job-protected leave to employees in certain situations. The basics of FMLA state that employees are eligible for up to 12 weeks of job-protected leave per year if they work for a covered employer for at least 12 months, have at least 1,250 hours of service with the employer during the preceding 12 months, and work at a location where the employer has at least 50 employees within 75 miles. The reasons that an employee may use FMLA leave include:
- The birth or placement of a child with the employee for adoption or foster care,
- The care for a child, spouse, or parent who has a serious health condition,
- A serious health condition that makes the employee unable to work, and
- Reasons related to a family member’s service in the military, including
- Qualifying exigency leave - Leave for certain reasons related to a family member’s foreign deployment, and
- Military caregiver leave – leave when a family member is a current servicemember or recent veteran with a serious injury or illness (up to 26 weeks of leave).
While this may seem familiar and maybe you have even handled FMLA requests from employees, there are so many nuances to this law, which clocks in at more than 4,500 words. Here are some important aspects to know about FMLA.
FMLA-covered Employer: Although an employer must have 50 employees to be covered by FMLA, this does not mean that the second they hire their 50th employee, they must offer FMLA, nor does it mean terminating your 50th employee sheds your obligation to offer protected leave. An employer must have 50 or more employees during 20 or more workweeks in either the current calendar year or the previous calendar year to be covered under the law; this does not need to be 20 consecutive workweeks. Additionally, if you have multiple businesses, the employees from all businesses may need to be counted towards the 50-employee threshold. Factors to be considered in determining if separate businesses should be counted as one include common management, interrelation between operations, centralized control of labor relations, and the degree of common ownership or financial control. For example, if you own two separate companies and the management team overlaps between the two, there is a good chance the DOL would view these businesses as one entity for determining FMLA eligibility.
12 Months of Employment: To be qualified for FMLA, an employee must have worked for at least 12 months for the employer. However, this does not necessarily mean the most recent 12 months. For example, if you have an employee who worked for your company for eight months, left the company for a year, and returned to your company nine months ago, they would be eligible for FMLA-protected leave as long as they have worked at least 1,250 hours within the most recent 12 months.
Defining the 12-Month Period: Eligible employees may use up to 12 workweeks of FMLA leave in a defined 12-month period. But what is the 12-month period? Employers may choose to define this period as:
- The calendar year,
- Any fixed 12-month period, such as a year starting on the employee’s anniversary date, a fiscal year, or a 12-month period required by state law,
- A 12-month period measured forward from the first day an employee takes FMLA leave, or
- A “rolling” 12-month period measured backward from the date an employee takes FMLA leave.
Whichever method an employer uses to define the 12-month period, this same method must be used for all employees. The only exception is if there is a required method based on state law, in which case the employer may use a different method for the state with specific requirements.
Remote Employees: An employee must work at a worksite that has at least 50 employees within a 75-mile radius to be eligible for FMLA leave. However, with the prevalence of remote work, how should this be taken into account? If an employee works remotely, their work location would be considered the worksite to which they report or from which their assignments are made, not their personal residence. For example, let’s say you have 20 employees who work at your headquarters in Clearwater, FL, and another 40 employees who work remotely across the country. All of these employees would be covered by FMLA since you have 60 employees who receive their assignments from the Clearwater, FL headquarters.
Intermittent Leave: While employees are entitled to up to 12 weeks of leave under FMLA, they don’t need to use it all at one time. Leave can be used in blocks of time, whether it’s a week, a day, or a few hours. For example, if an employee needs to take off four hours once a week to take their spouse to a medical procedure, only four hours would count against their available 12 weeks. In situations where employees may need to use hours instead of weeks, employers can convert workweeks to an hourly equivalent for ease of tracking. Conversion of an employee’s FMLA entitlement to an hourly equivalent must be based on the employee’s total normally scheduled hours. For example, if an employee is regularly scheduled to work 50 hours per week, they are entitled to 600 hours of FMLA leave in a 12-month period.
FMLA Leave Involving Spouses: Depending on the reason for leave, an employee may have less than 12 weeks available. If you have spouses working at your company, they may be expected to share the 12 weeks between them under certain circumstances. If spouses take off time for the birth of a child, placement of a child in relation to adoption or foster care, or to care for a parent with a serious health condition, the spouses would split the 12 weeks. They do not have to split the time equally, but if one spouse uses eight weeks to bond with a new baby, for example, the other spouse would only have up to four weeks to also bond with the baby. Each spouse would still have access to their full FMLA leave entitlement if taking the time for their own serious health condition, to care for a spouse or child with a serious health condition, or due to a qualifying exigency.
Documentation for Bonding with a New Child: When employees use FMLA for reasons such as their own serious health condition or caring for a family member, employers can request supporting documentation from a healthcare provider. However, employers may not request certification to bond with a newborn child or a child placed for adoption or foster care. Employers may ask for reasonable documentation of a family relationship, such as a written statement or a copy of an official document, such as a birth certificate, for review and return to the employee.
In Loco Parentis: What if an employee says he needs to be out to care for his nephew with a serious health condition? Before you deny his request due to the familial relationship, you should confirm whether the employee stands in loco parentis, which translates to “in the role of the parent”. Standing in the role of the parent includes having day-to-day responsibilities to care for or financially support a child, and would entitle them to FMLA leave as if they were the parent. Even if a child has one or both biological parents in the home, another person, whether biologically related or not, may occupy the role of a parent and be eligible for FMLA. The role also works in the other direction as well. For example, if your employee was raised by their grandmother and needs to take leave to care for her due to a serious health condition, FMLA would consider the grandmother to have occupied the role of a parent, and the employee would be entitled to leave.
Health Benefits: FMLA protects an employee’s group health benefits while on leave. This means that the employee must be permitted to continue their benefits during leave on the same terms as if they had continued to work. The employee is still obligated to pay their portion of the premiums, and the method and timing of these payments can be determined by the employer through company policy or agreed upon between the employer and employee. This could mean paying premiums to coincide with the regular pay periods, once a month, or even after the employee’s return. But what happens if the employee fails to make these payments as agreed upon? If a premium payment is more than 30 days late (unless a company policy exists that gives a longer grace period), coverage can be dropped. The employer must first provide written notice at least 15 days prior to coverage cancellation and must include in the notice the date coverage will stop unless payment is made. If coverage is dropped due to nonpayment while the employee is on leave, coverage must be reinstated as if the employee had not lapsed on payment upon their return.
Retroactive FMLA Designation: An employee comes to you and says they need to go on leave for eight weeks to care for their mother with a serious health condition. Then you forget to notify the employee that the leave will be designated as leave under FMLA until after she returns. Can you retroactively designate this as FMLA leave? The DOL says yes, you can, as long as it does not cause harm or injury to the employee. But what does this mean? Continuing in the example, let’s say you designate the leave under FMLA after the fact, leaving this employee with four weeks of leave for the year. Then she says she needs to be out due to having a baby, which typically requires at least six weeks of leave for recovery. If the employee knew that the time off for her mother would have counted against her FMLA entitlement in advance, she would have made arrangements to split the time caring for her mother with a sibling to allow enough time for recovery from childbirth. In this situation, the retroactive designation from the first leave is causing harm to the employee, given that she needs this time for other reasons and now does not have it, possibly making the retroactive designation unlawful. Employers should strive to designate FMLA leave in a timely manner to avoid these issues, and, in situations where an employer fails to designate leave, it is best to meet with the employee and mutually agree to the retroactive designation.
FMLA Interaction with Workers’ Compensation: When an employee needs to be out of work due to a workplace injury, they may be eligible for FMLA leave. Generally, an employee’s position is not protected while on leave under Workers' Compensation, as this benefit provides coverage for medical expenses and lost wages to employees injured on the job. Because of this, you should check if an injured employee is eligible for FMLA leave and provide documentation if applicable.
State Laws: Even though an employer may have fewer than 50 employees within a 75-mile radius of the workplace, some states have their own versions of FMLA that may apply. For example, California, New Jersey, and Oregon all have lower employee-count requirements before employers are covered by job-protected leave laws. Additionally, state laws may include qualifying reasons for leave above and beyond the federal FMLA. For example, Minnesota’s Pregnancy and Parenting Act requires all employers, regardless of size, to provide job-protected leave not only for childbirth and adoption but also prenatal care and incapacity due to pregnancy, childbirth, or related health conditions.
Navigating FMLA and other leave laws can be complicated based on various factors, and careful consideration should be given when there is a possible need for employee leave. Clients of FrankCrum can reach out to their HR Consultant to assist with discussing leave laws and best practices.