The Family Medical Leave Act (FMLA) is a federal law that grants an employee the right to take up to 12-weeks of unpaid leave for qualifying conditions without the leave counting against him or her, to put it simply. However, this definition is loaded with information. The FMLA is known by many as a complicated law that is difficult to understand and even more difficult to administer. While it may be difficult to understand and administer, it is an important law that allows employees to balance their work responsibilities with their personal and family demands.
To start, there are a few eligibility requirements that both the employer and employee must meet. On the employer side, to be eligible to offer FMLA, the employer must have at least 50-employees on payroll for more than 20-weeks during the current, or previous year. Also, the employee must work at a location that has 50 or more employees within a 75-mile radius. The exception to this 50-employee rule is if the organization in question is a public entity e.g., local, state, or government agency, or a public, or private elementary or secondary school. These public entities are all required to offer FMLA, regardless of the number of employees on their payroll. On the employee side, the employee must have worked at least 12-months, which does not have to be consecutive, and worked at least 1250-hours during the 12-month period immediately preceding the leave. (That is about 156-days at eight-hour days.) It is important to note that the one-year count and the 1250-hour count includes time that the employee may have spent as a temporary employee. If the employee satisfies of these requirements, they are on their way to being eligible for leave under the FMLA.
An employee may be eligible for leave under the FMLA for three qualifying conditions. The first of the three qualifying conditions is called bonding leave, which allows the employee to take time to “bond” with a newborn child, an adopted child, or a foster child. The second of the three is military leave which allows an eligible employee who is the spouse, son, daughter, parent, or next of kin of a current servicemember with a serious injury or illness incurred in the line of duty on active duty to take leave. The last qualifying condition is for a serious health condition. The serious health condition may either be the employee dealing with their own serious health condition, or a family member’s serious health condition. It is important to remember that is not the employee’s responsibility to request the leave, however, it is the employer’s responsibility to know when to offer the leave.
In the case of a request for any of the three qualifying conditions, an employee’s word alone may not be enough to automatically grant an FMLA leave. The FMLA allows employers to ask for a medical certification form (there are five different medical certification forms depending upon the reason for the leave) from the health care provider stating the employee’s reason for requesting the FMLA leave. It is the employee’s responsibility to take the form to their medical provider for completion. At the same time that the employer provides the employee with the appropriate medical certification form, they are also required to give he or she the notice of rights and responsibilities form completed in its entirety.
Once it is determined that an employee is eligible for FMLA leave, he or she has 15-days to provide proof of the need, or to have the medical certification form completed, in most circumstances. Employers may also contact the health care provider and request further clarification or validation of the specific condition in question upon receipt of the form. Once the employer makes the determination that the leave is approved or not, they are required to provide the employee with the designation notice completed in its entirety.
When the employee meets one of the three qualifying conditions, and the employer has received the medical certification form, then he or she may be eligible for leave under the FMLA. Depending on the employee’s circumstance, or what the health care provider recommends, he or she could be away from work intermittently, or away for the duration of the time allowed (12-weeks) under the guidelines of the FMLA. The amount of time that he or she is away from work depends upon how long it takes the employee, or the employee’s family member, to recover, or for the employee to bond with their new child. Regardless of the amount of time that the employee takes, as long as it is within the amount of time the FMLA allows (12-weeks), the leave cannot count against them in any way, shape, or form. Employers may not discipline an employee for being excessively “absent” due to an FMLA leave. If the employee has met all of the eligibility requirements to take leave under the FMLA, an employer should allow him or her to take it. If not, it could open the employer up to a potential retaliation or discrimination claim. However, this also does not mean that the employer grants the employee the leave and forgets about him or her. The employer should remain in contact with the employee at important intervals during the leave time. It is no secret that FMLA abuse is real and it should be something employers are prepared to deal with quickly.
There are certain ways that employers may put a stop to FMLA abuse if they believe it is taking place. For example, if the employee’s medical certification form explains that they will need intermittent leave two-days a month and the employee requests off five-times, the employer has every right to request clarification of the medical certification, as mentioned earlier. As long as the employer is consistent across the board in requesting clarification, this information may be extremely helpful when dealing with FMLA abuse. Extreme measures may be taken as well in the case of suspected FMLA abuse, such as hiring a private investigator to understand what an employee’s “FMLA life” looks like. For instance, if the employee has a certification for chronic migraines and the doctor requires the employee to sit in a dark room until the migraine goes away and the private investigator drives by the employee’s house and they are outside mowing the lawn on a sunny day, they are certainly abusing their FMLA leave.
Employers who have fewer than 50-employees should continually be monitoring the number of active employees on their payroll, so that when the number nears 50, they are able to take action. The first thing that the employer needs to do is to consult with their Human Resources Department and/or an outside consultant e.g., a seasoned employment law attorney, or a human resources consulting firm, and have them write a FMLA policy for their employee handbook. This ensures that there is an open line of communications from the get-go with the employees and it helps them to understand the basis of what they are entitled to under the guidelines of the FMLA.
Along with a well written policy, employers should make sure that they are prepared with the correct forms and information to give to the employee who is eligible for the leave. The forms include:
- Designation Notice
- Notice of Eligibility Rights & Responsibilities
- Certification of Health Care Provider for Employee’s Serious Health Condition
- Certification of Health Care Provider for Family Member’s Serious Health Condition
- Certification of Qualifying Exigency for Military Family Leave
- Certification for Serious Injury or Illness of a Covered Servicemember — for Military Family Leave
- Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave
All of the necessary forms for the FMLA may be downloaded at the Department of Labor (DOL) – Wage and Hour divisions website at http://www.dol.gov/whd/fmla/forms.htm .
Unlike worker’s compensation, or the Americans with Disabilities Act and its Amendments Act (ADAAA), there is no such thing as “light duty” under the FMLA. FMLA is like a basic light switch; it is either completely on, or it is completely off. When an employee comes back from an unpaid FMLA leave at the end of the 12-weeks, they are entitled to their old job they held before they took the leave. While there is no guarantee that the employee will receive their original job back, according to the DOL, “The employee must be restored to the employee’s original job, or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment.” It is also important to note that the FMLA runs concurrently with all other leaves, e.g. ADAAA, workers’ compensation, etc.
The FMLA, as complicated as it may seem, does not have to be difficult. While there are hundreds of pages of regulations, employers should not be stuck reading through every last bit of the regulations in an attempt to better understand them. Actively monitoring FMLA policies, and training supervisors on proper FMLA etiquette is key in properly managing the FMLA leave. The FMLA exists for good reasons and employers should not let the vast amount of regulations discourage them in their FMLA endeavors. It is recommended that employers create a binder with the appropriate forms and information so that when an employee requests leave, all of the essential paperwork is ready to be distributed. In addition, the DOL’s Wage and Hour division has The Employer’s Guide to the Family and Medical Leave Act available as a download at http://www.dol.gov/whd/fmla/employerguide.htm. It is strongly recommended that all employers who have over 50-employees on their payroll have a copy on hand to refer to when needed.
For additional information on the FMLA, please contact us at www.NewFocusHR.com.
Written by: Patrick McKenna, SHRM-CP
New Focus HR, LLC