The federal Family and Medical Leave Act (FMLA) provides eligible employees with up to 12 weeks of unpaid leave in a 12 month period where their job is guaranteed upon their return. The law also requires that any group health insurance benefits the employee participates in are continued for the duration of the FMLA leave as if the employee was still working full time.
FMLA only applies to companies with 50 or more employees during each of 20 or more calendar workweeks in the previous or current calendar year. This may include members of controlled groups and joint employers if the total employee count is 50 or more. In addition, all public agencies (including local, state and federal government agencies) as well as public and private elementary or secondary schools are covered employers regardless of the number of employees.
In order to be eligible for protection under the FMLA, an employee must have:
- Worked at least 12 months with their employer at a location with 50 or more employees within a 75 mile radius; and
- Worked at least 1,250 hours int eh 12 months immediately preceding the leave.
Note: The 12 months of employment with the employer do not have to be consecutive so long as the break in employment does not exceed 7 years. So if an employee worked for you for 6 months in 2015, left the company and was hired again in 2017 and worked at least 6 months they may be eligible for leave if all other requirements are met.
FMLA Qualifying Events
Eligible employees can take up to 12 weeks of leave in a 12 month period for:
- Birth of a child to the employee;
- Placement of a child for adoption or foster care with the employee;
- Caring for an immediate family member (spouse, child, or parent) with a serious health condition;
- The employee’s own serious health condition that prevents them from working or prevents them from performing one or more essential function of their position; or
- Any qualifying exigency arising out of the fact that a spouse, child or parent is a military member on active duty or call to covered active duty status.
The Department of Labor provides some clarification for some of the terms used above when determining whether an event qualifies an employee for FMLA protection.
- Spouse: a husband or wife as defined or recognized in the state where the individual was married. This includes same-sex marriage and common law marriage.
- Child: a biological, adopted or foster child, a stepchild, a legal ward, or a child of a person standing “in loco parentis,” who is either under age 18, or age 18 or older and “incapable of self-care because of a mental or physical disability” at the time the FMLA leave begins.
- Parent: a biological, adoptive, step or foster father or mother, or any individual who stood “in loco parentis” to the employee when the employee was a child. This does not include parents “in law”
- “In loco parentis”: includes those with day-to-day responsibilities to care for or financially support a child. There does not need to be a biological or legal relationship between the adult and the child.
Determination of 12 Month Period
Employers generally have four options to choose from when determining how the 12 month period will be calculated. The employer must use the option it chooses consistently and uniformly for all employees taking FMLA leave. The options are as follows:
- Calendar year – The 12 month period is always January 1st through December 31st.
- Any fixed 12 month period – for example, the company’s fiscal year or a 12 month period beginning with the employee’s hire date.
- 12 month period measuring forward – the first date of the 12 month period period is the first day of the FMLA leave. For example, if an employee begins FMLA leave on March 3, 2017 his or her 12 month period would be March 3, 2017 through March 2, 2018.
- “Rolling” 12 month period measuring backward – The employer counts back 12 months from the first date of FMLA leave to determine how much FMLA leave the employee is entitled to. For example, if an employee begins FMLA leave on March 3, 2017 the employer would review the period from March 4, 2016 through March 3, 2017 to see if any FMLA leave time had been used. If no time had been used, the employee would be eligible for a maximum of 12 weeks. If the employee had already used 3 weeks of FMLA leave between March 4, 2016 and March 3, 2017 they would only be eligible for a maximum of 9 weeks now (12 weeks less the 3 weeks already used). Once 12 months has passed since the original 3 weeks were taken, the employee would be eligible for another 3 weeks of FMLA leave. This continues on a “rolling” 12 month basis.
If an employer decides to change the method used for determining the 12 month period, all employees must be given at least 60 days notice.
If an employer fails to decide on which option to use, they must use the option that is most favorable to the employee.
Leave Entitlements for Family Members of Military Service Members
Eligible employees may take up to 26 weeks of leave during a 12 month period to care for a covered service member with a serious injury or illness, when the service member is the spouse, child or parent of the eligible employee. The 12 month period for military caregiver leave is different from the 12-month period used for the other FMLA leave determinations. For military caregiver leave, the 12 month period begins on the first day the employee takes leave for this reason and ends 12 months later, regardless of the way the employer calculates the 12 month period for other types of FMLA leave.
An employee eligible for military caregiver leave is allowed a combined total of 26 weeks of leave for any FMLA-qualifying reasons. A maximum of 12 of the 26 weeks may be used for any FMLA-qualifying reason other than military caregiver leave (such as a serious illness of the employee or an immediate family member).
Health Insurance & Other Benefits
If an employee is enrolled in group health coverage prior to their FMLA leave, their benefits must be continued for the duration of the leave under the same terms as if the employee had not taken the leave. The employee is still responsible for paying their portion of health insurance premiums. The employer should make arrangements with the employee to either provide regular payments to the employer while they are on leave or to pay the employer for missed premiums upon their return to work. If the employer requires regular payments throughout the leave, a regular payment schedule should be established. If an employee fails to make a payment as scheduled, the employer can stop the employee’s coverage if the payment has not been received at least 30 days following the scheduled due date. Prior to cancelling coverage, the employer must send a written notice to the employee notifying of the pending cancellation of coverage. Coverage can be terminated after 15 days from the date of the letter.
For benefits other than group health insurance, the employee’s rights depend on the employer’s policies for FMLA and any other leave of absence.
If an employee decides to not return to work following their FMLA leave for any reason other than the FMLA-qualifying medical condition, then the employer can require that the employee reimburse the employer for the employer’s share of group health insurance premiums in addition to the employee’s portion of premiums.
Substituting Paid Time Off for Unpaid Leave
Employers can (and should!) decide whether they will allow (or require) employees on FMLA leave to use any accrued but unused paid time off such as vacation or sick time in exchange for unpaid time off. It is recommended that employers create a policy that addresses this so that it is applied consistently for all employees using FMLA leave. If paid leave is substituted, group health insurance premiums must be taken the same as they would be had the employee worked. For example, if an employee generally pays $100 per week for their group health insurance premium, the employer would be required to deduct the $100 per week for any paid weeks during the FMLA leave.
Employee’s Responsibilities Under the FMLA
An employee eligible for FMLA leave should follow the employer’s usual requirements for requesting a leave of absence. In addition, the employee must provide the employer with enough information to determine whether the leave may be covered under the FMLA.
Generally, when the need for leave is known in advance, the employee should provide at least 30 days notice to their employer. If the need for leave is not known until 30 days or less before the start of the leave, the employee should provide at least 30 days notice to their employer. If the need for leave is not known until 30 days or less before the start of the leave, the employee must notify the employer as soon as possible.
Note: An employee is not required to specifically mention the FMLA when requesting the leave. It becomes the employer’s obligation to determine whether the leave is FMLA-eligible.
Employer’s Responsibilities Under the FMLA
- Display the federal FMLA poster in a place where all employees have access to view it. The poster can be found by clicking here.
- Either include information about the FMLA in the employee handbooks or provide information to all new hires at the time of hire regarding the FMLA.
- Within five business days of the request for FMLA leave or learning that a leave requested may be for an FMLA-qualifying reason, the employer must provide the employee with a notice of eligibility for FMLA leave and the employee’s rights and responsibilities under the FMLA. A sample form is available from the Department of Labor (Form WH-381 – click here) which can be used to provide notice of eligibility and employee’s rights and responsibilities.
- Once medical certification is received from the employee’s physician, the employer must notify the employee as to whether the leave is designated as FMLA and the amount of leave that will be taken from the employee’s FMLA entitlement. A sample notice provided by the Department of Labor (Form WH-382 – click here) can be used for this requirement.
When the Employee Returns to Work
Upon return from FMLA leave the employee must be reinstated to their same position or an equivalent position with similar pay, hours, location, benefits and other work conditions.
All benefits must be restored upon return from FMLA leave. The employee cannot be required to “re-qualify” for any benefits they had available to them prior to taking the leave.
When an Employee Doesn’t Return After FMLA Expires
Many companies previously had a policy to automatically terminate an employee unable to return to work at the end of the 12 week FMLA leave. THIS IS A BAD IDEA!! Although at the end of 12 weeks an employee is no longer protected by the FMLA, they may still be protected by the Americans with Disabilities Act (ADA). Employers should evaluate each situation on its own and participate in an “interactive process” as required under the ADA to determine whether a reasonable accommodation (including possible continued leave of absence) is appropriate. If unsure of how to proceed in this situation, an employer may want to seek legal counsel to ensure they are in compliance with the ADA.
Retaliation or Discouraging the Use of FMLA
The FMLA prohibits employers from interfering with an eligible employee’s right to take FMLA leave for a qualified reason. For example, employers should NOT:
- Refuse to authorize FMLA leave for eligible employees
- Discourage employees from taking FMLA leave
- Change an employee’s work hours to avoid eligibility for FMLA leave
- Count FMLA-protected absences against an employee under the company’s attendance policy
- Use the FMLA leave against the employee when making decisions about promotions, disciplinary actions or any other employment decisions.
In addition to the federal Family and Medical Leave Act, many states have their own policies. Be sure to familiarize yourself with the applicable state law(s) as well when establishing an FMLA policy for your organization.