Experience Everything Compliance Network Has to Offer
Copyright 2023 J. J. Keller & Associate, Inc. For re-use options please contact copyright@jjkeller.com or call 800-558-5011.
Copyright 2023 J. J. Keller & Associate, Inc. For re-use options please contact copyright@jjkeller.com or call 800-558-5011.
...
The Family Medical Leave Act (FMLA), 29 CFR, Chapter V, Part 825, was first enacted in August 1993. The law was expanded in January 2008 to include provisions regarding military servicemembers. In light of that change, along with court decisions and stakeholder input, new final rules were published, effective January 16, 2009. On October 28, 2009, another revision to the FMLA was signed to clarify and expand the leave provisions which relate to employees with family members serving in the military. On December 21, 2009, the law was changed to allow airline crewmembers alternative eligibility criteria.
The stated purpose of the FMLA is to help employees balance work and family life by allowing reasonable leave for specified reasons. Congress intended the law to weigh the legitimate needs of employers to be productive with the needs of workers to handle family medical concerns. The FMLA also provides for communication between employer and employee. Employers must provide information to employees about their eligibility for FMLA leave and the designation of leave. Similarly, employees must provide sufficient information to employers, making it easier for employers to determine FMLA eligibility and application.
The FMLA in a nutshell
Employers of 50 or more employees for at least 20 weeks of the year are covered by the law. It is not necessary for all 50 employees to work at a single location, but this can affect whether a particular employee is eligible for leave. Other covered employers include all public agencies such as schools, police departments, and fire departments.
Eligible employees
Most eligible employees are those who:
- Have been employed by the employer for at least 12 months (not necessarily consecutively),
- Have worked at least 1,250 hours in the 12-month period prior to beginning the leave, and
- Are employed at a location where 50 or more employees work at that location or within 75 miles of that location.
Employers have to look back only as far as seven years to determine if an employee has worked for the company previously to determine the 12 months eligibility criterion.
The employee is counted as employed if he or she was on the payroll for any part of a week, including periods of sick leave or vacation or when other benefits have been provided, such as disability or workers’ compensation. However, paid time off (sick leave, vacation, holiday pay, etc.) does not have to be counted to determine if the 1,250 hours worked criteria has been met.
Airline crewmembers, must meet the following eligibility criteria:
- Worked or been paid for at least 60% of the applicable total monthly guaranty for the previous 12-month period, and
- Worked or been paid for at least 504 hours (not including personal commute time or time spent on vacation or medical/sick leave) during the previous 12-month period.
The “applicable monthly guarantee” is the minimum number of hours for which an employer has agreed to schedule an employee for any given month, and the number of hours for which an employer has agreed to pay an employee on reserve status for any given month as established in an applicable collective bargaining agreement or by employer policy.
Employers must maintain on file with the Department of Labor information specifying the applicable monthly guarantee for each category of employee to which the guarantee applies.
Reasons for leave
Employers covered by the law must allow eligible employees unpaid, job-protected leave in a 12-month period for any of the reasons listed below. Also, any group health benefits must be maintained during the leave.
- The birth and care of an employee’s newborn child (12 weeks),
- The adoption of a child by the employee or placement of a foster child with the employee (12 weeks),
*Note: The above leave must be taken within 12 months of the birth or placement of the child. - The care of an immediate family member (parent, spouse, or child) with a serious health condition (12 weeks),
- The inability of the employee to work because of a serious health condition (12 weeks),
- A qualifying exigency caused by a family member’s military duty (12 weeks), or
- The care of a family member seriously injured or made ill in the line of active military duty, or the aggravation of a pre-existing condition as a result of active duty, including such conditions which arise up to five years after the individual leaves the military service (26 weeks).
There is a special provision for spouses employed by the same employer. They may be limited to a combined 12 weeks of leave in the following situations:
- The birth and care of a child or placement of an adopted or fostered child.
- Care of an employee’s parent who has a serious health condition.
- Qualifying exigencies.
Spouses employed by the same employer may also be limited to a combined total of 26 weeks of leave to care for a servicemember.
Notices and communication
Covered employers must post a notice of FMLA rights; this must be done even if the employer has no eligible employees (such as locations with fewer than 50 employees). If an employer has an employee handbook, the same information contained in the poster (also known as the General Notice), must be included in the handbook. If the employer has no employee handbook, a copy of the General Notice must be provided to employees upon hire and to any employees who request information about FMLA. Electronic posting is allowed.
Upon learning of the need for leave, employers must determine whether the leave qualifies for FMLA and designate the leave as such. Employers must provide employees with information on their eligibility as well as their rights and responsibilities. This must be provided to employees within five days of learning of the need for leave.
This “rights and responsibilities notice” is also to include such information as the following:
- That leave may be designated and counted against the employee’s leave allotment
- Certification requirements in support of the need for leave
- The amount of leave counted against the FMLA, if known (if it’s not known, the employer must provide the amount of time counted against the FMLA entitlement upon the employee’s request, but no more often than once every 30 days)
- The right to substitute accrued paid leave
- The right to benefits continuation during leave
- Requirements for group healthcare premium payments
- The employee’s status as a “key” employee
The employer may require employees to provide a certification in support of the need for leave. Such a requirement is to be included in the rights and responsibilities information. The FMLA has four different certification forms for different situations:
- Certification of employee’s serious health condition
- Certification of a family member’s serious health condition
- Certification of qualifying exigency for military family leave
- Certification of serious injury or illness of covered servicemember
Employees must provide certification within 15 days if requested by the employer.
Certifications for medical situations can include diagnosis, medication, and symptoms. Certifications should be used to establish that the employee cannot perform essential functions of the job, that a family member needs care, or that a qualifying exigency exists.
Employers can require employees to provide complete and sufficient certification, meaning nothing is missing, vague, or misleading in the certification. Employers must let employees know if a certification needs fixing. Employees must fix any certification problems within seven days, or risk denial of their leave.
Employers may require a second opinion from another health care provider, as long as that health care provider is not one under contract with the employer. If the second opinion differs from the first, the employer can authorize a third opinion. All expenses for the second and third opinions are the employer’s responsibility. Obtaining the opinions is the employee’s responsibility.
If leave is foreseeable, the employee must give notice as soon as practicable, preferably at least 30 days in advance. If leave is unforeseeable, the employee must give notice as soon as possible. Employees are to provide sufficient information to allow the employer to determine whether the FMLA applies.
When an employee seeks leave for the first time for an FMLA-qualifying event, the employee need not expressly assert FMLA rights or even mention the FMLA. When an employee seeks leave for which the employer has previously provided, the employee must specifically reference either the qualifying reason of the need for FMLA leave. Simply “calling in sick” with no other information is not sufficient FMLA notice. Employees are expected to follow the employer’s usual call-in procedures for reporting an absence.
Employers may need to obtain more information, and employees are to answer employer questions relating to FMLA qualification.
After receiving sufficient information, the employer is to provide the employee with information on whether the leave will or will not be designated as FMLA and counted against the employee’s 12- or 26-week entitlement. This “designation notice” is to be provided within five days of obtaining sufficient information. If the employer will require a fitness-for-duty certification at the end of leave, this requirement must be included in the designation notice.
Retroactive designation is allowed if it does not cause harm to the employee.
The new incarnation of the FMLA stresses the importance of communication between the employer and employee. It offers employers new and revised forms as tools for communicating with employees and health care providers. While you must use the poster as written, you may create your own certification forms. You may not, however, require the employee to provide more information than required under the FMLA regulations. You may want to use the prepared forms as guides.
Serious health condition
Serious health conditions under the law involve certain illnesses, injuries, impairments, or physical or mental conditions. These include the following:
- Any inpatient care in a medical facility;
- Any incapacity requiring an absence of three or more calendar days from work or school that also involves treatment by a health care provider;
- Any incapacity relating to pregnancy or prenatal care;
- Any incapacity due to a chronic serious health condition, such as asthma or epilepsy;
- Any incapacity due to a permanent or long-term condition that may not be treatable, such as Alzheimer’s or terminal diseases; or
- Absences for the purpose of receiving multiple treatments, or recovery from such treatments, for any condition that would probably result in three or more day’s absence if left untreated, such as chemotherapy or dialysis.
Serious health conditions that require an absence of three or more calendar days must include at least two visits to their health care provider within 30 days of any incapacity. The first visit must be within seven days of the incapacity.
Chronic conditions must include a visit to the health care provider at least twice per year.
Qualifying exigencies
Qualifying exigencies include situations that need immediate attention because of a family member’s “covered active duty.” Qualifying exigencies include the following:
- Short-term deployment notice (limited to seven days from notification)
- Military events and related activities
- Childcare and school activities
- Financial and legal arrangements (limited to 90 days if after the termination of active duty)
- Rest and recuperation (limited to five days for each instance)
- Post-deployment activities (limited to 90 days after termination of duty)
- Additional activities agreed upon by the employer and employee.
Previously, leave for a qualifying exigency was not allowed for active members of the regular Armed Forces - only for members in the Reserves or Guard. As of October 28, 2009, leave to handle qualifying exigencies is available to family members of the Regular Armed Services. Also, the term “covered active duty” includes deployment to a foreign country, instead of being restricted to those engaged in a “contingency operation.”
Servicemember care
Eligible employees may take up to 26 weeks of leave to care for a family member who was seriously injured or made ill in the line of active military duty. Such leave is also available if the injury or illness resulted from the aggravation of an existing or pre-existing condition as a result of active duty. Finally, servicemember care is also available for family members of veterans when treatment, recuperation, or therapy for a serious injury or illness begin within five years after the member left military service. For example, the family members of a veteran who suffers from Post Traumatic Stress Disorder may be eligible to take such leave.
The 26 weeks is a separate leave year than other types of leave; it does not matter what the employer has identified as the leave year for the other reasons for leave. It runs on a “measured forward” basis and begins at the time the employee first takes leave and runs for 12 months from that date.
Leave taken during the 12-month period for servicemember care is limited to a combined total of 26 weeks. Therefore, during that separate 12-month period, if an employee takes two weeks off to care for a child, the employee would have 24 weeks remaining to care for a servicemember. Where the servicemember care leave year does not overlap with the leave year for other reasons, the total is not combined.
Intermittent leave
Leave may be taken for larger blocks of time, but FMLA also allows for leave to be taken on an intermittent basis. Employers may grant intermittent leave for the care of a newborn or newly placed child, but they are not required to do so.
Paid leave
FMLA generally provides for unpaid time off. Employees may request or employers may require that employees substitute accrued paid leave time during an absence qualifying as FMLA. In such situations, FMLA and accrued time off would run concurrently. Employers must adhere to existing paid-leave policies that cover all employees.
Return to work
“Job protection” means the employee must be restored to his original job, or to an equivalent position with equal pay and roughly equal responsibilities upon the end of leave. There is an exception for “key employees.” Key employees are highly-paid, salaried employees whose reinstatement would cause “substantial and grievous economic injury” to the employer’s operations. In this case, the employer must provide notice to the employee of his or her key employee status and the reason for denying job restoration. Reasonable efforts must be made to allow the employee to return to work after such notification.
Employees may be required to provide a fitness-for-duty certification if this requirement was made known to the employees in the designation notice. Employees are responsible for obtaining and paying for any fitness-for-duty certifications.
Recordkeeping
It’s important to track employee hours, benefits, and, of course, FMLA leave time carefully. Make sure all medical information is kept confidential and maintained separately from the general personnel files. FMLA-related records must be retained for at least three years.
What employers need to do
- Understand the requirements of the FMLA
- Work with employees who need intermittent leave or a reduced schedule.
- Provide appropriate notices and other communications to employees
- Keep accurate records
- Train supervisors and managers in their roles under FMLA
Miscellaneous FMLA facts as of January 16, 2009
- If a bonus or other payment is based on achieving a specified goal such as working a certain number of hours, and the employee missed the goal due to FMLA leave, the bonus may be denied.
- Light duty work cannot be counted against an employee’s FMLA entitlement.
- FMLA waiver provisions allow employees to settle past FMLA suits without court or DOL approval.
- FMLA leave to care for a pregnant woman is allowed for a spouse, but not to a boyfriend or fiancé who is the father of the child.
- Holidays are not counted toward an employee’s FMLA leave time for intermittent leave, unless the employee had been expected to work the holiday.
- The smallest FMLA increment that can be taken is no greater than the shortest period of time used to account for other forms of leave, but not greater than one hour.
- Required overtime that is missed because of a qualifying FMLA reason may be counted against the employee’s FMLA entitlement.
Miscellaneous FMLA facts as of October 28, 2009
- For purposes of qualifying exigency leave, the term “active duty” was replaced with the term “covered active duty,” which includes duty with regular Armed Forces deployed to a foreign country, instead of being restricted to those engaged in a “contingency operation.” This has the effect of allowing qualifying exigency leave for someone active in the regular military.
- For purposes of servicemember care, the definition of “covered servicemember” has been expanded to include veterans who are undergoing medical treatment, recuperation, or therapy for an illness or injury that manifested itself before or after the servicemember became a veteran. The veteran would need to obtain care within five years of military service.
- The definition of “serious injury or illness” for purposes of servicemember care leave is expanded to include an injury that existed before military service and was aggravated by military service. Previously, the aggravation of existing injuries/illnesses was not included for servicemember care leave.
Conclusion
The FMLA remains a challenge for employers and HR professionals. The new rules should make it easier to obtain the information you need to make the right decisions concerning FMLA leave. Take advantage of the new FMLA notices to keep yourself and your employees informed and your records up to date. As always, Prospera is here to help you stay ahead of the changes and to comply with the law.
READ MORESHOW LESS
['Family and Medical Leave Act (FMLA)']
['Family and Medical Leave Act (FMLA)']
Load More
J. J. Keller is the trusted source for DOT / Transportation, OSHA / Workplace Safety, Human Resources, Construction Safety and Hazmat / Hazardous Materials regulation compliance products and services. J. J. Keller helps you increase safety awareness, reduce risk, follow best practices, improve safety training, and stay current with changing regulations.