Your employees may need to use family and medical leave for several legitimate reasons. But when is taking additional leave appropriate for an employee? What are your employees’ rights and responsibilities under the Family and Medical Leave Act? And what are your responsibilities and rights as an employer? This post will explore these questions and address any concerns you may have about the FMLA.
What Is The FMLA?
The Family and Medical Leave Act was enacted in 1993 to allow eligible employees to take unpaid leave for certain medical and family medical reasons. It strives to help employees balance their work and family responsibilities. The FMLA promotes equal employment opportunities for both women and men while also recognizing the interests of employers.
When eligible under the FMLA, employees can take up to 12 weeks of unpaid leave for specific family and health reasons. They can also take FMLA leave on an intermittent or reduced schedule basis under certain circumstances. However, these employees must make an effort to schedule planned medical leave to not disrupt company operations.
According to the Bureau of Labor Statistics, as of March 2018, 17 percent of civilian employees had access to paid family leave and 89 percent had access to unpaid family leave. Employees can use leave to care for children or elderly family members.
Who is Eligible?
The FMLA only applies to certain employees. They must have worked for a covered employer for at least 12 months and a minimum of 1,250 hours. In addition, their job must take place at a site where at least 50 employees work, or within 75 miles from this location.
The 12 months of employment don’t have to be consecutive. However, if a break lasted seven years or more, the time worked before doesn’t count unless the break was due to service under the USERRA (Uniformed Services Employment and Reemployment Rights Act). If there is a written agreement from the employer stating reemployment, such as in a collective bargaining agreement, the time worked before may count as well.
Employee Rights and Responsibilities
During a period of family and medical leave, employees are eligible for group health insurance coverage. According to the U.S. Department of Labor, employees can take 12 weeks of leave within 12-months when:
- Their child is born, or to care for the newborn within a year of its birth.
- They adopt a child, or when one is placed with them under the foster care system. They can take time off to care for this child within the first year.
- They must care for their child, spouse or parent that is experiencing a severe medical issue.
- They have a serious medical issue that makes it impossible for them to work.
Under Section 7(r)of the FMLA, employers must also provide reasonable break times for employed, nursing mothers to express breast milk for their child. This is required for one full year after the baby’s birth.
When an employee or covered family member has a serious medical condition, the employer may require a certificate from a healthcare provider that supports the leave request. They may also ask for periodic recertification of the serious health condition. The employer may also ask for a second or third medical opinion at the employer’s expense.
In some cases, the employer may require, or the employee may choose, to substitute paid leave for all or some of the FMLA leave. This is determined by the terms and conditions of the employer’s standard leave policy.
Under certain circumstances, employees may take FMLA leave on a reduced schedule. They can take FMLA leave in separate blocks of time and even reduce the amount of time they work each day or week.
When the FMLA leave is required for a planned medical treatment, it’s up to the employee to schedule the treatment in a way that doesn’t interrupt the employer’s operations. When an employee takes FMLA leave for birth, adoption or foster care, any reduced or intermittent leave requires the approval of the employer.
The employer must return the employee to their original position when returning from FMLA leave. If not, they must place them in a job that is equivalent in pay, benefits and terms of employment.
In addition, the National Defense Authorization Act provides coverage to employees with spouses, children or parents who are currently serving or have been called for active duty. This leave is called military caregiver leave. It is different from the 12-month leave used for other FMLA reasons. This leave can be used:
- To care for the child of a deployed military member.
- To attend specific military briefings or ceremonies.
- To make legal or financial arrangements due to the absence of the military member.
If the military member is seriously ill or injured while on active duty, they can get an extension of up to 26 weeks of unpaid leave each year.
Employer Rights and Responsibilities
For private employers, only those who employed 50 or more employees for at least 20 workweeks during either the current or previous year must follow FMLA rules. Public agencies and both public and private elementary and secondary schools must comply with the FMLA regardless of the number of individuals employed. Any public agency must follow FMLA rules, including state, federal and local government agencies.
Employees cannot be fired for taking their eligible time under the FMLA, and employers must continue group health insurance coverage for an employee on FMLA leave. FMLA doesn’t guarantee paid leave for eligible employees, but the employee may use accrued paid leave. An employer can also make the employee use their paid leave as part of the FMLA leave. But, the employer must provide the employee with proper notification.
The Family and Medical Leave Act provides four options for employers to calculate the 12-month period. They can choose:
- From the start of a calendar year, January 1st through December 31st
- The anniversary of the employee’s starting date or fiscal year
- A 12-month period that starts when the employee takes their first FMLA leave
- A 12-month period calculated from previous FMLA leave. For example, if an employee requests leave on December 1st, but has taken ten weeks of leave starting March 1st of the same year, then they are only allowed to take two more weeks of leave. This time resets after March 1st of the next year.
The Do’s and Don’ts of FMLA
Employers may sometimes fail to adhere to the FMLA’s many requirements. Here are seven important tips from the “Employment Law Handbook” to help you stay compliant.
- The employer must post a notice that details the rights and responsibilities under the Family and Medical Leave Act. They may be subject to a civil money penalty of up to $110 for willful failure to post. They must:
- Detail information about the FMLA in their employee handbooks or provide information to new employees upon hire.
- Provide notice concerning employees’ eligibility for FMLA leave and their rights and responsibilities when they request FMLA leave. They must also notify an employee when the employer acquires knowledge that leave may be for an FMLA-qualifying reason.
- Tell employees whether their leave is FMLA leave and the amount of leave that will be deducted from their FMLA entitlement.
- Employers must be aware of state law when designing their FMLA policies. Consider what employees should do to receive FMLA coverage that complies with both federal and state law.
- Employers covered by the FMLA must apply their policy consistently throughout their organization.
- Training your supervisors in FMLA laws is the best way to prevent FMLA infractions. They must be trained to recognize when FMLA laws apply and when employees are eligible. Managers must not favor one employee over another when it comes to eligibility under the FMLA. They must ensure that confidentiality provisions in the FMLA are met. Managers should notify the human resources department when FMLA is involved. Finally, they must never interfere with an employee’s FMLA claim.
- Keep required FMLA records, including basic payroll and employees’ identifying data such as their name, address, rate of pay, hours worked, additions or deductions to wages, and their total compensation. Keep records regarding the dates of FMLA leave and hours used and any notices you provide an employee regarding the FMLA.
- Never retaliate against an employee for taking FMLA leave. According to HR Daily Advisor, this could include:
- Not giving a promotion to an employee who would be promoted.
- Any unwarranted discipline or termination.
- Denying an employee who is on FMLA leave the benefits that are given to those who aren’t on FMLA leave.
- Using an employee’s FMLA leave in a negative employment decision.
- Remember that FMLA-eligible employees may be given reduced work schedules. The FMLA covers serious medical conditions for both the employee and members of the employee’s family.
What to Do After an Employee’s FMLA Expires
There are times when, as the employer, you will need to provide reasonable accommodations even after an employee’s FMLA leave expires. An employee may not be capable of returning to full duty after a serious illness or injury. In this circumstance, under the Americans With Disability Act you may be required to extend the employee’s leave if their serious health condition also qualifies as a disability. If you don’t make allowances for this, you could be in violation of the ADA.
If the ADA applies, take restrictions into consideration and determine if you can accommodate the employee so they can return to work with restrictions.
An employee with a disability is entitled to more than twelve weeks of unpaid leave if it doesn’t result in undue hardship on your business. There is no set period of time for additional leave under the ADA, but what is reasonable may depend on the job, the size of your business and other conditions. If an employee needs extended leave under the ADA, you may request medical documentation.
As an employer, you aren’t required to provide an open-ended period of leave.
Not all employees who qualify for an FMLA leave of absence will be eligible for an ADA extension of leave.
The Family and Medical Leave Act strives to balance the demands of the workplace with the needs of families. It’s important for employers and their managers to understand employees’ and their own rights and responsibilities where the FMLA is concerned. If you would like to learn more, KnowledgeCity offers a course that will help you learn who is eligible for the benefits under the FMLA, what rights and responsibilities employees and employers both have, where service members fall into all of this, and where employers make their biggest mistakes.