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The Family and Medical Leave Act: Your Questions Answered

Human Resources
Article
06/25/2019

The Family and Medical Leave Act (FMLA), enacted in 1993, is a federal law that provides eligible employees of covered employers to take up to 12 weeks of unpaid leave a year and requires that group health benefits be maintained throughout the leave. Under FMLA, employees are entitled to return to their same position or to an equivalent position at the conclusion of the FMLA leave. The FMLA also provides unpaid leave to eligible employees for specified reasons related to certain military deployments of their family members. Under the FMLA, they may take up to 26 weeks of FMLA leave in a year to care for a covered service member with a serious illness or injury.

What Businesses/Employers are Covered by the Family and Medical Leave Act?

The FMLA only applies to employers that meet certain criteria. A covered employer is a:

  • Private-sector employer, with 50 or more employees in 20 or more workweeks in the current or preceding calendar year, including a joint employer or successor in interest to a covered employer;
  • Public agency, including a local, state, for Federal government agency, regardless of the number of employees it employees; or
  • Public or private elementary or secondary school, regardless of the number of employees it employs.

What are the Notice Requirements for Employers Under the FMLA?

Covered employers must:

  • Post a notice explaining rights and responsibilities under the FMLA. Covered employers may be subject to a civil money penalty for willful failure to post. Employers may use the Department’s FMLA Poster, which is free and publicly available on the Department’s website, to satisfy this requirement.
  • Include information about the FMLA in their employee handbooks. If no handbook or written leave materials exist, the employer must distribute this general notice to each new employee upon hire.
  • When an employee requests FMLA leave or the employer acquires knowledge that leave may be for a FMLA-qualifying reason, provide the employee with notice concerning his or her eligibility for FMLA leave and his or her rights and responsibilities under the FMLA; and
  • Notify employees whether leave is designated as FMLA leave and the amount of leave that will be deducted from the employee’s FMLA entitlement.

Additional information about the Employer’s Notification Requirements under the FMLA are available in the Department of Labor’s Fact Sheet #28D.

What is the FMLA Leave Entitlement?

An eligible employee may be entitled to 12 weeks of FMLA leave in a 12-month period for one or more of the following reasons:

  • The birth of a child, and to bond with a newborn child;
  • The placement with the employee of a child for adoption or foster care and to bond with that child;
  • To care for a spouse, child, or parent (but not a parent “in-law”) who a serious health condition;
  • For a serious health condition that makes the employee unable to perform essential job functions; or
  • For any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty” or called to active duty status.

An eligible employee may also take up to 26 workweeks of leave during a “single 12-month period” to care for a covered service member with a serious injury or illness, when the employee is the spouse, son, daughter, parent, or next of kin of the service member.

Under some circumstances, employees may take FMLA leave on an intermittent or reduced schedule basis. That means an employee may take leave in separate blocks of time or by reducing the time he or she works each day or week for a single qualifying reason. When leave is needed for planned medical treatment, the employee must make a reasonable effort to schedule treatment so as not to unduly disrupt the employer’s operations. If FMLA leave is for the birth, adoption, or foster placement of a child, use of intermittent or reduced schedule leave requires the employer’s approval.

Is Paternity Leave a Qualifying Reason for Leave Under the FMLA?

Mothers and fathers have the same right to take FMLA leave to bond with a newborn child. A mother may also take FMLA leave for prenatal care, incapacity related to pregnancy, and for her own serious health condition following the birth of a child. A father can use FMLA leave to care for his spouse who is incapacitated due to pregnancy or child birth.

Leave to bond with a newborn child or for a newly placed adopted or foster child must conclude within 12 months after the birth or placement of the child. The use of intermittent FMLA leave for these reasons is subject to the employer’s approval. If the newborn or newly placed child has a serious health condition, the employee also has the right to take FMLA leave to care for the child intermittently, if medically necessary and such leave is not subject to the 12-month limitation.

Which Employees are Eligible for FMLA Leave?

Only eligible employees are entitled to take FMLA leave. An “eligible employee” under the FMLA is an individual who:

  • Works for a covered employer;
  • Has worked for at least 12 months (not necessarily consecutive);
  • Has worked for at least 1,250 hours for the employer during the 12-month period immediately preceding the leave; and
  • Work at a location where the employer has at least 50 employees within 75 miles.

How do Employers Determine the Applicable 12-Month Period?

Generally, an employer may select one of four methods to establish the 12-month period to be applied to its employees. The method the employer selects must be uniformly applied to all employees taking FMLA leave. Below are the different methods to establish the 12-month period.

  1. The Calendar Year – 12-month period that runs from January 1 through December 31;
  2. Any Fixed 12-Months – 12-month period such as a fiscal year (for example, October 1 through September 30), a year starting on an employee’s anniversary date (for example, September 22 through September 21), or a 12-month period required by state law;
  3. The 12-Month Period Measured Forward – 12-month period measured forward from the first date an employee takes FMLA leave. The next 12-month period would begin the first time FMLA leave is taken after completion of the prior 12-month period;
  4. A “Rolling” 12-Month Period Measured Backward – 12-month period measured backward from the date an employee uses any FMLA leave. Under the ‘‘rolling’’ 12-month period, each time an employee takes FMLA leave, the remaining leave entitlement would be the balance of the 12 weeks which has not been used during the immediately preceding 12 months.

Additional information about calculating the 12-month period can be found on the U.S. Department of Labor Wage and Hour Division’s Fact Sheet #28H.

How Does an Employee Qualify to Take FMLA Leave?

An employee must meet the eligibility requirements in order to take FMLA. An eligible employee is one who:

  • Works for a covered employer,
  • Has worked for the employer for at least 12 months as of the date the FMLA leave is to start,
  • Has at least 1,250 hours of service for the employer during the 12-month period immediately before the date the FMLA is to start (a different hours of service requirement applies to airline flight crew employees), and
  • At the time leave is requested, works at a location where the employer employs at least 50 employees within 75 miles of that worksite as of the date when the employee gives notice of the need for leave

What Length of Leave-Time is Permitted?

An eligible employee may be entitled to 12 weeks of FMLA leave for a serious health condition (their own or a qualified family member’s). Further, an employee may be entitled to 26 workweeks of leave during a single 12-month period to care for a covered service member with a serious injury or illness if the eligible employee is the service member’s spouse, son, daughter, parent, or next of kin (Military Caregiver Leave).

How Much Notice Must an Employee Give Prior to Taking Leave?

Employees must comply with their employer’s usual and customary requirements for requesting leave and provide enough information for their employer to reasonably determine whether the FMLA may apply to the leave request. Employees generally must request leave 30 days in advance when the need for leave is foreseeable. When the need for leave is foreseeable less than 30 days in advance or is unforeseeable, employees must provide notice as soon as possible and practicable under the circumstances.

Can FMLA Leave be denied?

FMLA leave may be denied if the employee qualifications or the reason for leave do not meet the eligibility requirements set under FMLA. When an employee requests FMLA leave due to his or her own serious health condition or a covered family member’s serious health condition, the employer may require certification in support of the leave from a health care provider. An employer may also require second or third medical opinions (at the employer’s expense) and periodic recertification of a serious health condition. Employers should be mindful that it is unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise any right provided by the FMLA. It is also unlawful for an employer to discharge or discriminate against any individual for opposing any practice, or because of involvement in any proceeding, related to the FMLA.

Is an Employer Required to Provide Benefits to an Employee on FMLA Leave?

An employer must maintain group health benefits for an employee during the FMLA leave as if the employee continued to work. The employee may be required to pay his or her share of the premium during the FMLA leave. The employer must provide the employee with advance written notice of the terms and conditions under which these payments must be made.

Is an Employee Paid for the Time Taken for Family and Medical Leave?

There is not an entitlement to paid leave under the FMLA. However, under certain conditions, the employee may choose to use — or be required by his or her employer to use — accrued paid leave such as sick or vacation leave to cover some or all of the FMLA period.

Is FMLA Leave Affected by Individual State Laws?

Several states and local jurisdictions have established laws regarding time off for family and medical reasons, including paid family and medical leave. Employees are entitled to all the benefits under federal, state, and local law for which they are eligible. Where the FMLA may conflict with an applicable state or local law the employee would be entitled to the most beneficial provisions of each law.

Is Intermittent Leave Permitted?

Under some circumstances, employees may take FMLA leave on an intermittent or reduced schedule basis. That means an employee may take leave in separate blocks of time or by reducing the time he or she works each day or week for a single qualifying reason. When leave is needed for planned medical treatment, the employee must make a reasonable effort to schedule treatment so as not to unduly disrupt the employer’s operations. If FMLA leave is for the birth, adoption, or foster placement of a child, use of intermittent or reduced schedule leave requires the employer’s approval.

Are Employers Required to Restore the Employee to the Same Job?

When an employee returns from FMLA leave, the employee must be restored to the employee’s original job or an equivalent job with equivalent pay, benefits, and other terms and conditions of employment (provided the employee is not a “key employee” as defined under the law and denial of job restoration would prevent substantial and grievous economic injury to the employer). However, if the employee would have been laid off without regard to taking leave (or if the employer has eliminated the position), the affected employee may not be entitled to his or her previous job. Employers are encouraged to discuss job restoration issues with legal counsel.

Does the FMLA Cover In-Laws?

While the FMLA enables eligible employees to take unpaid time off to care for children, spouses or parents with a serious health condition, the Act does not include a similar provision for the care of an in-law. An exception, may apply where the individual previously stood “in loco parentis” for the employee when he or she was under-age. This term is defined “as having had the responsibility of providing day-to-day care to the employee” and providing financial support during his or her childhood.

Can FMLA Leave Be Used for Prescribed Sessions with a Therapist?

FMLA leave may be taken to care for your own serious health condition, or to care for your spouse, child, or parent with a serious health condition. A serious health condition may be a condition that prevents you from working for more than three days straight and requires continued medical treatment. For the most common serious health conditions, visit The Employee’s Guide to the Family and Medical Leave Act from the Department of Labor.

How Does the FMLA Address Same-Sex Marriage?

In 2015, the U.S. Department of Labor formally announced that employees in legal, same-sex marriages have the same rights and privileges as those in opposite-sex marriages to job-protected leave provisions under the FMLA. Employers must be vigilant in ensuring leave policies recognize legal same-sex and opposite-sex marriages. For example, if you don’t require an employee in an opposite-sex marriage to provide a marriage certificate for documentation of their marriage, you should not request documentation of the marriage for an employee in a same sex-marriage. (It’s also important to note a civil union or registered domestic partnership is not considered a legal marriage.)

Does FMLA Leave Need to be Taken in Minimum Blocks of Time?

Employees may use FMLA leave in the smallest increment of time the employer allows for the use of other forms of leave, as long as the smallest increment is no more than one hour. If an employer uses different increments for different types of leave (for example, accounting for sick leave in 15-minute increments and vacation leave in one-day increments), the employer must allow FMLA leave to be used in the smallest increment used for any type of leave. The employer may always allow FMLA leave in shorter increments than used for other forms of leave; however, no work may be performed during any period of time counted as FMLA leave. Additional information is available on the Department of Labor Fact Sheet #28I

Do Holidays Count as FMLA Time?

If a recognized company holiday should fall during a week in which an employee is taking a full week of leave, the entire week counts as FMLA leave. But if the holiday takes place in a week where the employee takes less than the full week of approved leave, the holiday is not considered part of the leave, unless the employee was scheduled and expected to work and used FMLA leave for that day.

The Department of Labor has published The Employer's Guide to The Family and Medical Leave Act that provides additional information about the FMLA and serves as a resource to employers. To ensure compliance and avoid potential litigation, businesses should become thoroughly familiar with all the requirements and conditions of the Family and Medical Leave Act. For information on HR management services, visit https://www.paychex.com/human-resources.

 

A previous version of this article was originally published on February 3, 2015.

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