The Family and Medical Leave Act (FMLA) gives eligible employees the right to take up to 12 weeks of time off for qualifying reasons. It sounds simple, at least in theory, but there’s a lot that needs to be considered to comply with this law while keeping employees happy and businesses running smoothly. Here are some basics on who is eligible, when to designate leave as FMLA leave, how the FMLA works with the temporary Families First Coronavirus Response Act (FFCRA) and what happens when a company isn’t subject to FMLA.
Who Is Eligible
Employees are eligible for FMLA if they have worked for a covered employer for at least 12 months before the start date of the FMLA leave, they have completed at least 1,250 hours of service during the 12-month period before the start date and they work at a location with at least 50 employees within 75 miles of the worksite.
Eligible employees are entitled to take up to 12 workweeks of leave in a 12-month period for qualifying reasons, including:
- The birth of a child and bonding with the newborn
- The placement of a child for foster care or adoption and bonding with the child
- Caring for a spouse, son, daughter or parent with a serious health condition
- Being unable to perform essential job functions because of a serious health condition
- Qualifying exigencies related to a spouse, son, daughter or parent being a military member on covered active duty
- Caring for a seriously ill or injured servicemember who is a spouse, son, daughter, parent or next of kin (employees may be eligible for up to 26 weeks of leave in this situation)
How FMLA and FFCRA Work Together
The FFCRA requires paid sick and family leave for certain qualifying reasons. The FFCRA is effective between April 2, 2020, and Dec. 31, 2020.
Normally, leave required under FMLA does not need to be paid. The FFCRA provides two types of paid leave:
- Emergency Paid Sick Leave of up to 80 hours for employees who can’t work due to coronavirus-related reasons, including being under quarantine, caring for someone under quarantine, experiencing COVID-19 symptoms while seeking treatment or caring for a child whose school or place of childcare is closed.
- Emergency Family and Medical Leave Expansion of up to 10 weeks of paid leave to employees who are caring for a child whose school or place of childcare is closed.
Private employers with fewer than 500 employees are subject to the FFCRA, and all employees are eligible for two weeks of leave. However, only employees who have worked for at least 30 days are eligible for the additional 10 weeks of paid leave.
According to the DOL’s FAQ on FFCRA, eligible workers will be entitled to emergency paid sick leave regardless of how much leave they have taken under FMLA. However, “if your employer was covered by the FMLA prior to April 1, 2020, your eligibility for expanded family and medical leave depends on how much leave you have already taken during the 12-month period that your employer uses for FMLA leave. You may take a total of 12 workweeks for FMLA or expanded family and medical leave reasons during a 12-month period.”
When a Company Isn’t Subject to FMLA
Not all employers are subject to FMLA.
Covered employers include private-sector employers that employ 50 or more employees in 20 or more workweeks in the current or previous calendar year. The workweeks do not need to be consecutive. Elementary and secondary schools, public school boards and public agencies are also subject to FMLA.
When determining whether they are subject to FMLA, employers must be careful. For example, if the employee number has dropped, the employer may still be subject to FMLA based on the previous year. Employers also need to follow rules for corporations and joint employers, which may mean that employees at multiple locations are counted together.
Employers that are not covered by FMLA may still be subject to other state and local laws that require family and medical leave, and possibly even paid leave, for eligible employees. Other laws, such as the FFCRA, may also be relevant to employers and employees who are not covered by the FMLA.
If employers are not covered under FMLA, the FFCRA or other family and medical leave laws, they should follow their company policies when deciding leave issues.
When to Designate
In many cases, employees may say that they need time off without mentioning FMLA. Additionally, although advance notice is ideal, this won’t always be feasible.
The employer should determine whether the request qualifies for FMLA based on the reason for the leave and the eligibility of the employee. If the requested leave qualifies for FMLA, the employer should begin the FMLA process and designate the leave as FMLA as soon as this determination is made.
Under FMLA, leave is job-protected, but it does not have to be paid. However, the employer’s policies may allow for paid leave to be used during this time. Regardless, the leave should be designated as FMLA as soon as it’s determined that it qualifies for FMLA.