The federal Family and Medical Leave Act (FMLA) of 1993, and as amended, provides that an employee may be eligible for a period of job-protected unpaid leave if he or she meets the criteria set forth in the FMLA regulations (29 CFR Part 825 – https://www.ecfr.gov/cgi-bin/text-idx?SID=039f1af15a43df094376ea8502f56a93&mc=true&tpl=/ecfrbrowse/Title29/29cfr825_main_02.tpl). According to the DOL, evidence suggests that adopting flexible practices in the workplace potentially boosts productivity and improves employee morale which ultimately benefits the economy. Thus, the main purpose of the FMLA has been for employees to be able to balance their work and family life while promoting economic security of families and preserving family integrity.
The FMLA only applies to “covered employers” that meet certain criteria. In accordance with the federal regulations, 29 CFR Part 825, a “covered employer” is a:
- Private sector employer, with 50 or more employees in 20 or more workweeks in the current or preceding calendar year, including joint employer or successor in interest to a covered employer;
- Public agency, including a local, state, or federal government agency, regardless of the number of employees it employs; or
- Public or private elementary or secondary school, regardless of the number of employees it employs.
Once an employer determines if they are a “covered employer”, they need to make sure that they have displayed the FMLA poster in their work environments where employees are able to read it and that they have provided employees with a General Notice. Most employee handbook policies have information with regards to eligibility and entitlement requirements, but in the absence of an employee handbook policy, employers must provide employees with a General Notice. The General Notice requirement may be met by either duplicating the General Notice language found on the DOL’s FMLA poster or by using another format as long as the information provided includes, at a minimum, all the information contained in the poster. The General Notice may be distributed electronically provided all the requirements are met. Employers may find additional information about the General Notice requirements at https://www.ecfr.gov/cgi-bin/retrieveECFR?gp=&SID=1f7fee608cea2db6a12515b8a8275e61&mc=true&n=pt29.3.825&r=PART&ty=HTML#se29.3.825_1300 .
To qualify for FMLA leave an employee:
- must be an employee of the “covered employer”,
- must have worked for the “covered employer” for at least 12-months,
- must have worked at least 1,250 hours (paid time off does not count towards the 1,250 hours) during the past 12-month period before the leave is to begin, and
- must work at a location where the “covered employer” employs at least 50 employees within a 75-mile radius from the “covered employers” headquarters.
Please note that the 12-months of employment with the “covered employer” does not have to be consecutive. According to the DOL, any time previously worked for the same employer (including seasonal work) could, in most cases, be used to meet the 12-month requirement.
An employee may be eligible for up to 12-weeks of unpaid leave in a 12-month period for one or more of the following reasons:
- The birth of a child and to care for such child or placement for adoption or foster care of a child;
- To care for an immediate family member (spouse, child under 18-years old or 18 and over that is incapable of self-care, or parent) with a serious health condition; or
- Because of a serious health condition which renders an employee unable to perform the essential functions of his or her job.
An employee may be eligible for up to 26 workweeks of unpaid leave during a single 12-month period to care for a covered servicemember with a serious injury or illness as described below:
- “Active Duty Leave,” defined as leave due to any qualifying exigency arising out of the fact that an employee’s spouse, son (of any age), daughter (of any age) or parent is a “covered military member”. “Covered military member’” means a member of the Armed Forces or a member of the Reserves (including the National Guard or Reserves) who is on “covered active duty”, or has been notified of an impending call or order to covered active duty. For members of the Armed Forces, “covered active duty” means duty during deployment of the member with the Armed Forces to a foreign country. For members of the Reserves, “covered active duty” means duty during deployment of the member with the Armed Forces to a foreign country under a call or order to active duty in a contingency operation.
Employers should remember that employees may also take intermittent or reduced schedule leave. This means that an employee who qualifies for FMLA may take leave in separate blocks of time or by reducing the time he or she works each day or week for a single qualifying reason. When an employee needs FMLA leave time to attend planned medical treatments, he or she must make a reasonable effort to schedule the treatments as to not disrupt the employer’s business operations. When FMLA leave is taken for the birth of a child or to care for such child or placement for adoption or foster care of the child, the use of intermittent leave is at the discretion and approval of the employer. Whether an employee requests the full FMLA unpaid leave time or intermittent leave both the employee and the employer have a shared responsibility with regards to communications. Making sure that the appropriate paperwork has been completed and that both understand the guidelines associated with the leave is key.
Once an employee either requests the use of the FMLA, or the employer learns of the employee’s need for the leave, it is up to the employer to determine if the employee meets the eligibility requirements and then to provide the employee with the Form WH-381 – Eligibility and Rights & Responsibilities Notice. The DOL updated the Notice of Eligibility & Rights and Responsibilities under the FMLA form during the summer of 2020. So, employers need to make sure that they are currently using the correct form, or that their customized forms have been updated to include the new information. Refer to https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/WH-381.pdf for a copy of the updated form.
When the employer provides the Form WH-381 – Eligibility and Rights & Responsibilities Notice, they should also let the employee know that a certification will be required. Two of the DOL’s certification forms were also updated during the summer of 2020 and they include the following:
- Form WH-380-E – Certification of Health Care Provider for Employee’s Serious Health Condition under the FMLA – https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/WH-380-E.pdf
- Form WH-380-F – Certification of Health Care Provider for Family Member’s Serious Health Condition Under the FMLA – https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/WH-380-F.pdf
There are three forms for the certification of military family leave, and they include the following:
- Form WH-384 – Certification for Military Family Leave for Qualifying Exigency under the FMLA – https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/WH-384.pdf
- Form WH-385 – Certification for Serious Injury or Illness of a Current Servicemember for Military Caregiver Leave under the FMLA – https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/WH-385.pdf
- Form WH-385-V – Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave under the FMLA – https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/wh-385-V.pdf
Once the employer determines if the leave request is for an FMLA qualifying reason they must either grant or deny the leave and provide Form WH-382 – Designation Notice under the FMLA – https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/WH-382.pdf – to the employee. Form WH-382 – Designation Notice under the FMLA is also a new form for 2020.
Employers should note that during the term of the leave, that they are required to maintain the employee’s health benefits. However, the employer may make arrangements with the employee to pay the employee’s contribution towards the health benefits during the leave. Then once the employee returns to work the employer must restore the employee to the same or equivalent position at the end of leave as to what the employee had prior to the leave with equivalent pay, benefits, and other terms and conditions of employment.
While the DOL has revised many of the FMLA forms this summer, as stated earlier, employers are not required to utilize the federal forms. However, if they do customize their own forms, employers should make sure that at a minimum they include the information as stated in the federal forms. An employer that requests a medical certification may request only information that relates to the serious health condition for which the current need for leave exists, and no information may be required beyond that specified in the FMLA regulations. In addition, for employers and employees who have already completed the old forms for a leave prior to the implementation of the new forms, it is not required that either complete the new forms. While employees are responsible for communicating with employers, employers are also responsible for communicating with employees and to also make sure that they are maintaining the appropriate records throughout the duration of the leave.
This article is provided as a general overview of the FMLA and to provide employers with a notification of the new forms that are available. For more detailed information, employers may want to obtain and read the Employer’s Guide to the FMLA at – https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/employerguide.pdf, or you may contact us at www.newfocushr.com.
Written by: Kristen Deutsch, M.B.A., CCP