The Family and Medical Leave Act (FMLA) is a federal law that provides unpaid, job-protected leave from work for family and medical reasons. FMLA does not apply to all employers, but many businesses are covered. In addition, more than a dozen states have passed their own family and medical leave laws that provide additional or extended coverage, including several that have paid leave programs, so it is important to be aware of state-level laws. On the surface, FMLA appears straightforward, but there are many details that can make administration complicated!
What employers are covered?
There are three qualifications for covered employers:
- Private-sector employers with 50 or more employees for a 20-week period of the current or previous year (this includes part-time and seasonal employees);
- Public agencies, including any federal, state, and local government employers, no matter the number of employees;
- Local educational agencies, such as school boards and public and private elementary and secondary schools, no matter the number of employees.
Notices
Covered employers must provide employees with a series of notices about their rights under FMLA, as well as their responsibilities when requesting and using leave. These include:
- A general notice that must be posted conspicuously, (the FMLA poster is available on the Department of Labor website) and should also be distributed to employees, such as part of the employee handbook or in paperwork provided to new hires.
- An eligibility notice, to be provided within 5 business days to employees who request FMLA leave. This notice indicates if the employee is eligible for leave under FMLA.
- A rights and responsibilities notice, which provides an overview of information about FMLA leave, including advising if certification requirements from a health care provider are necessary.
- A designation notice, which notifies the employee if their leave time will be designated as FMLA and counted against their 12-week entitlement or not. This notice needs to be provided within 5 business days of receiving sufficient information from the employee’s health care provider to determine if the leave falls under a qualifying reason.
What are qualifying reasons under FMLA and who is covered?
Employees can take leave under FMLA for the following:
- The birth, adoption, or foster placement of a child with the employee.
- A serious mental or physical health condition that makes the employee unable to work.
- To care for the employee’s spouse, child, or parent with a serious mental or physical health condition.
- Certain qualifying reasons related to the foreign deployment of the employee’s spouse, child, or parent who is a military service member.
Employees can take leave in a continuous block of time, or they may need to take leave intermittently or on a reduced schedule, depending on the situation and both of these are covered under the FMLA regulations.
Not all employees who work for covered employers are covered under FMLA; they must meet certain criteria, such as a length of service (12 months), hours of service (1250 hours), and have 50 employees within 75 miles of their work location. Remember, even if an employee does not meet the employee coverage criteria, a covered employer MUST notify the employee that they are not covered.
How do I know when to start the FMLA Process?
This may be the trickiest part of FMLA administration- knowing when to start the process. Employees tend to talk to their direct manager or supervisor when they need leave or are requesting time off. If an employee mentions something that includes a hospital stay, extended leave to care for a family member, or there is some kind of emergency that involved an ER visit, that is usually a good indicator that the FMLA eligibility notice and rights and responsibilities notice should be prepared and sent out, and should include the any necessary medical certification requests if needed to determine eligibility. An employee does not need to specifically ask for or use the term “FMLA Leave” to be covered under or request leave under FMLA. Under the regulations, employers should provide the notices within the 5-day time frame when an employee requests leave in advance, or an employer is made aware that “an employee leave may be an FMLA-qualifying reason”.
Front-line managers and supervisors generally do not process leave administration, so be sure to report the leave request or issue to upper management or Human Resources as soon as it is known so the process can be started in a timely way. It is important to know the signs when an employee may be covered under FMLA to ensure that the company complies with federal and state regulations and to make the right team members aware of any leave requests.
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