White Paper published by The HR Specialist, copyright 2009
The Family and Medical Leave Act (FMLA), which became law in 1993, provides qualified employees with up to 12 weeks of unpaid leave per year for the birth or adoption of a child, for caring for a spouse or an immediate family member with a serious health condition or for convalescence after an employee's own serious health condition.
Some states have their own family leave laws. In such cases, you must abide by the regulation that provides the most generous benefit to the employee.
Which companies must comply?
Any company with 50 or more employees working within a 75-mile radius of the "work site" must comply. The 75-mile radius provision could exempt some larger companies that operate from a small headquarters but do business in many other locations outside the 75-mile limit.
Employee eligibility for FMLA
To be eligible for leave under the FMLA, an employee must have worked for the same employer for a 12-month period. The worker also must have logged at least 1,250 hours of service (slightly more than 24 hours per week) with that employer. On-call time counts toward the 1,250 hours. Employees exempt from the Fair Labor Standards Act are assumed to have met the 1,250-hour test.
How much leave time?
Eligible employees can take up to 12 weeks of unpaid, job-protected leave during a 12-month period. You must set a 12-month period for all employees based on one of the following:
- a calendar year;
- a "leave year" such as your fiscal year;
- a year mandated by state law;
- a year starting on the anniversary of the employee's hiring date;
- or a 12-month period measured forward or backward from the first date that the FMLA leave is used.
The last scenario prevents an employee from taking 24 weeks of leave at once-that is, 12 weeks at the end of one year followed by 12 weeks at the beginning of the next year.
Who is considered ‘family'?
Employees, both men and women, may take leave for the birth or adoption of a child or to provide foster care. Foster care is a state-sanctioned arrangement; taking care of someone else's child does not normally qualify. Employees also can request FMLA leave to provide needed care to a sick child, spouse or parent.
Care provided to siblings, aunts, uncles, cousins, grandparents, in-laws or domestic partners is not covered by the FMLA. Once children become 18, they don't qualify unless a mental or physical disability makes them incapable of self-care.
What is a ‘serious' health condition?
Eligible employees are entitled to FMLA leave to care for their own "serious condition" or the serious condition of a child, spouse or parent. Under the new regulations that took effect in January 2009, a “serious health condition” that qualifies for FMLA leave means an illness, injury impairment or physical or mental condition that involves at least one of the following:
Hospital care: Inpatient (overnight) care in a hospital, hospice or residential care facility, including any period of incapacity or treatment connected to inpatient care.
Absence plus treatment: A period of incapacity of more than three consecutive calendar days (including any subsequent treatment or period of incapacity relating to the same condition) that also involves one of the following:
- Two or more visits to a health care provider. The first visit must occur within seven days of the first day of the incapacity, and both visits must take place within 30 days.
- A regimen of continuing treatment, with the first visit taking place within seven days of the onset of the incapacity.
Pregnancy: Any period of incapacity due to pregnancy, or for prenatal care.
Chronic conditions requiring treatments: A chronic condition that extends over a period of time and requires periodic treatments. “Periodic visits” are defined as at least two visits to a health care provider per year. During that period, the incapacity may be episodic rather than continuous. Examples include asthma, epilepsy or diabetes.
Permanent/long-term conditions requiring supervision: A permanent or long-term incapacity due to a condition that may not respond to treatment. The employee or family member must be under the continuing supervision of (but need not be receiving active treatment by) a health care provider. Examples: Alzheimer’s or the terminal stages of a disease.
Multiple treatments (nonchronic conditions): Any period of absence to recover from or receive multiple treatments for restorative surgery after an accident or injury, or for a condition that would probably result in a period of incapacity of more than three consecutive calendar days in the absence of medical treatment, such as cancer (chemotherapy, etc.), severe arthritis (physical therapy) and kidney disease (dialysis).
Note: You do have the right to demand medical certification from a health care provider before acting on an employee's FMLA leave request. The law entitles you to ask for a second or third opinion, if necessary, before granting FMLA leave.
The FMLA establishes a class of workers known as "key" employees to whom you can deny reinstatement from FMLA leave if doing so would cause your business "substantial and grievous economic injury." You cannot deny FMLA leave to a key employee, only reinstatement. Key employees are salaried workers whose earnings are in the firm's top 10 percent.
The law says employees should schedule their leave "so as not to unduly disrupt the employer's operations." Be sure, however, that any postponement does not endanger the health of the employee or the family member. A parent can take leave to care for a newborn or newly adopted child any time in the first 12 months after the birth or adoption. The leave must be concluded before the 12-month period is up.
Taking intermittent FMLA leave
Employees can take intermittent FMLA leave for medical treatment or for other medical reasons. Employees can, for example, take two hours of leave twice a week for doctor appointments or several days at a time spread over six months for chemotherapy. The law says you must track intermittent leave in the lowest normal measure of time that you already have for pay purposes.
Paid vs. unpaid leave
FMLA leave is unpaid unless you voluntarily decide to continue paying the worker. You may insist that the employee first use all her paid time (such as annual leave and sick leave) and count that toward her total FMLA time. If you do not insist that a worker first must use her paid leave as part of FMLA, she is entitled to such leave on top of the 12 weeks of unpaid leave.
You must continue to provide health benefits to an employee on FMLA leave. The same services your group plan provides on-the-job employees must be made available to those on FMLA leave. If you change coverage or adopt a new plan that offers new services while the employee is on leave, the new benefits must be made available to that worker.
Eligible employees who want to take FMLA leave must give you 30-days advance notice when the need is foreseeable, such as when a pregnant worker anticipates time off for childbirth. When it's not foreseeable, they need to inform you "as soon as practicable" under the circumstances.
To give proper notice, employees must explain that family and medical leave is needed. They don't need to mention the the term "FMLA" as long as they provide enough information for you to decide that the leave qualifies under the FMLA. In short, the burden is on you to notice that leave may qualify.
When a worker returns
An eligible employee who takes FMLA leave is entitled to be restored to the same position he held when the leave started or to an equivalent position with equivalent benefits, pay and other terms and conditions of employment. The new position must involve the same or substantially similar duties and responsibilities and must entail equivalent skill, effort, responsibility and authority. Your best bet is to hold the worker's job during FMLA leave.
You must count leave time as work time for pensions and your other retirement programs. You can refuse to reinstate a returning employee under only a few rigidly circumscribed conditions. If you can show, for example, that the employee would have been laid off during the time he was on leave had he been working, he need not be reinstated. This could occur if you closed a department where the employee worked.
Recordkeeping at a minimum
You don't need to complete any special forms or revise your computerized payroll or personnel records to comply. But your FMLA records must show basic payroll and identification data. Also, note the hours an employee takes when going on intermittent leave. Make sure you have this information in writing. Keep copies of the FMLA notices you provided to an employee in his personnel file. If the Labor Department has "reasonable cause" to suspect an FMLA violation or is investigating a complaint, it can demand to see records any time it chooses.