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FMLA guidelines for employers

By Higginbotham on March 25 , 2021

FMLA

The Family and Medical Leave Act, or FMLA, gives eligible employees the legally protected right to take time off from work for certain family and medical reasons. This is a federal law that covered employers in the United States must comply with.

Covered Employers Under the FMLA

Not all employers are considered covered employers under the rules of the FMLA.

The FMLA only applies to employers that fit one of the following descriptions:

  • A private sector employer with at least 50 employees in at least 20 workweeks in the current or previous calendar year. When counting employees, joint employers and successors in interest to a covered employer should be included.
  • An elementary school, secondary school or public agency, regardless of the number of employees. Covered public agencies include local, state and federal government agencies. Covered elementary and secondary schools include both private and public schools.

Eligible Employees Under the FMLA

Not all employees are eligible for job-protected leave under the FMLA. To be eligible, the employee must work for an employer that is covered by the FMLA, per the requirements outlined in the previous section. Additionally, the employee must meet the following criteria:

  • The employee has worked for the covered employer for a minimum of 12 months.
  • The employee has worked a minimum of 1,250 hours of service for the covered employer in the 12 months immediately preceding the leave. (Airline flight crew employees have special hours of service eligibility requirements.)
  • The employee works at a location where the covered employer has a minimum of 50 employees within 75 miles.

When Employees Can Take 12 Workweeks of Family and Medical Leave

Under the FMLA, eligible employees who work for covered employers may take up to 12 workweeks of leave in one 12-month period for qualifying reasons.

The following events count as qualifying reasons under the FMLA:

  • The birth of a son or daughter.
  • The adoption or foster care placement of a son or daughter.
  • Care for a spouse, son, daughter or parent with a serious health condition.
  • A serious health condition that prevents the employee from being able to perform essential job functions.
  • A qualifying exigency related to a spouse, son, daughter or parent being a military member of covered active duty or being called to covered active duty status.

FMLA leave does not necessarily need to be taken in a single 12-week block. In some cases, eligible employees may exercise their right to take FMLA leave on an intermittent schedule with multiple, shorter blocks of leave. They may also exercise their right to FMLA leave by reducing the amount of time they work during a day or week.

When Employees Can Take 26 Workweeks of Leave

In some cases, employees may qualify for up to 26 workweeks of FMLA leave in a 12-month period. This is possible when the eligible employee needs time off to care for a son, daughter, spouse, parent or other next of kin who is a covered servicemember with a serious injury or illness.

A next of kin could be a brother, sister, grandparent, aunt, uncle, first cousin or other blood relative who has been granted legal custody of the servicemember or designed by the servicemember as the servicemember’s next of kin for FMLA purposes in writing.

When calculating the 12-month period for FMLA military caregiver leave, the period starts on the first day the employee takes leave for the reason and ends 12 months later.

Job Protection, Pay and Benefit Requirements During FMLA Leave

When an employee qualifies for FMLA leave, the leave is job-protected. This means that employees cannot be fired or otherwise penalized simply for taking FMLA leave. When the employee returns to work, the employee should return to the same job or an equivalent job with equivalent pay.

FMLA leave does not need to be paid. However, employees may be able to use paid leave offered by the employer during FMLA leave. For example, if an employer offers paid sick leave or paid vacation time, the employee might use that.

During FMLA leave, employees must continue to have access to their regular group health benefits under the same terms and conditions as before. However, if employees normally make premium payments through payroll deductions and they are not receiving pay during FMLA leave, they may be required to make payments to cover their regular portion of the premium. Coverage may be cancelled if premiums are not paid.

Providing Notice of FMLA Rights

The employer must inform employees of their rights under the FMLA. This should be done by including information about the FMLA in the employee handbook and by posting a notice where employees can see it. Additionally, when an employee requests leave, the employer must let the employee know if it qualifies as FMLA-protected leave and provide additional information on the employee’s rights under the FMLA.

Requesting FMLA Leave

Employees do not have to state that they want to take “FMLA” leave to invoke their rights under the FMLA. If an employee requests leave, the employer should determine whether the request falls under the regulations of the FMLA.

However, employees should follow the employer’s normal procedure for requesting leave. When possible, the request should be made at least 30 days before leave is needed, although emergency situations may make advance notice impossible.

Penalties for Non-Compliance with the FMLA

Employers that do not comply with FMLA regulations may face penalties and lawsuits. These lawsuits can get very expensive. For example, SHRM reports that a Massachusetts jury awarded an employee $1.3 million after it was determined that the employee was terminated in violation of the FMLA and ADA.

To avoid expensive penalties and lawsuits, employers should review the law carefully before making any employment decisions when FMLA leave is involved.

Other Laws and Regulations Employers Should Know

The FMLA is not the only law that employers must follow regarding family and medical leave. Employers should also consider other federal regulations, such as the ADA, as well as any relevant regulations in their state. New laws, either temporary or permanent in nature, may create additional requirements. For example, the Families First Coronavirus Response Act created requirements for paid leave during the COVID-19 pandemic.

Need help with FMLA compliance? Higginbotham’s HR Services team is here for you. Learn more about our comprehensive HR support.

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