The Family and Medical Leave Act (FMLA) Explained: What Is It, Requirements & Other Questions Answered
- Recursos humanos
Lectura de 6 minutos
Last Updated: 03/03/2023
Table of Contents
What Is the FMLA & How Does It Work?
The Family and Medical Leave Act (FMLA), enacted in 1993, is a federal law that provides eligible employees of covered employers with up to 12 weeks of protected, unpaid leave in a 12 month period, and requires that group health benefits be maintained the same as if the employee were not on leave.
Under FMLA requirements, eligible employees are entitled to return to their same position or to an equivalent position at the conclusion of the covered leave. The act 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.
The Department of Labor has published The Employer's Guide to The Family and Medical Leave Act which 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 Paychex HR Services.
Does an Employer Have To Offer FMLA Leave? What About Small Businesses?
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, or federal government agency, regardless of the number of employees it employs; or
- Public or private elementary or secondary school, regardless of the number of employees it employs.
Businesses cannot deny a request for FMLA leave for eligible workers, nor can they dissuade employees from making use of that leave. Also, according to the U.S. Department of Labor's Wage and Hour Division, it is unlawful to use "an employee's request for or use of FMLA leave as a negative factor in employment actions, such as hiring, promotions, or disciplinary actions”.
Do covered employers face any consequences if they do not offer FMLA leave? If an employee complaint arises, the Wage and Hour Division may conduct an investigation, which could lead to legal action to compel compliance with the FMLA. Employees can also bring private civil actions against employers for violating the FMLA. Obviously, legal actions along these lines can prove detrimental to a company's public image, and might discourage job candidates from applying for open positions with that company.
What Reasons Qualify for FMLA?
Reasons qualifying an employee for leave under the FMLA include:
- Birth of a child: up to 12 weeks of continuous leave for qualifying employees.
- Adoption or placement of foster child: up to 12 weeks of continuous leave for qualifying employees.
- Serious employee health condition: up to 12 weeks of leave for employees too sick or injured to conduct their job responsibilities.
- Caring for a spouse, child or parent with a serious health condition: Up to 12 weeks leave for situations where a family member cannot take care of themselves.
- Military deployment: Up to 12 weeks for child care duties when a military spouse is deployed overseas.
What Are the Notice Requirements for Employers Under the FMLA?
To meet requirements, 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 the information provided in the FMLA poster in their employee handbooks. If no handbook or written leave materials exist, the employer must distribute the general notice provided on the Dept. of Labor website 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 their eligibility for FMLA leave and their 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.
Where Should the FMLA Poster Be Posted?
Under the FMLA, covered employers must post the FMLA poster in a visible, conspicuous location at the workplace, so both employees and job candidates can see it. Just as importantly, notes the U.S. Department of Labor, the poster "must be displayed at all locations even if there are no eligible employees."
Where a significant portion of the employer's workforce is not proficient in English, the employer must provide the notice in the language in which the employees are literate. Employers also must follow applicable requirements for notices under Federal and State law for sensory-impaired individuals.
Willful failure to post the required FMLA notice may result in a civil money penalty by the U.S. Department of Labor, Wage and Hour Division, not to exceed $110 (as of the publishing date of this article) for each separate offense. Employers should be aware that other notice provisions, besides the FMLA poster, also exist under the Act.
For covered employers, failing to provide employees with the required FMLA notifications could have detrimental effects on operations, perhaps in the form of compliance violations, costly fines, and even lawsuits.
How Long Can FMLA Leave Last?
Under the FMLA, an eligible employee may be entitled to up to 12 weeks of 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 has a serious health condition.
- For a serious health condition that makes the employee unable to perform essential job functions.
- 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 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.
Does Paternity Leave Meet FMLA Qualifications?
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 their own serious health condition following the birth of a child. A father can use FMLA leave to care for their spouse’s serious health condition, such as incapacitation due to pregnancy or childbirth.
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 or employer approval.
Which Employees Qualify and 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) as of the date the FMLA leave is to start;
- Has worked for at least 1,250 hours for the employer during the 12-month period immediately preceding the leave; 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.
Please note that eligibility requirements may vary based on the industry that the employee is in.
How Long Does FMLA Leave Last? 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:
- The calendar year: 12-month period that runs from January 1 through December 31;
- 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;
- 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;
- 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 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 an Employer Deny FMLA?
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 their 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.
What Happens if an Employee Is Not Eligible for Leave Under the FMLA?
Not all employees are eligible for FMLA leave, including those who haven't been employed for a specific amount of time, or if they are employed by a company that is not a "covered employer." Other disqualifying factors can include (a) small businesses with less than 50 employees who aren't required by law to provide FMLA leave; and (b) a health condition that fails to meet requirements for FMLA leave.
In such cases, an employee who takes leave despite being ineligible for FMLA leave, could find their employment unprotected unless they are covered under another applicable law.
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.
Do You Get Paid During FMLA leave? 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. Additionally, a state or local paid leave program may run concurrently with leave taken under the FMLA, providing the employee with pay through that program.
What Is the Difference Between FMLA and PFL (Paid Family Leave)?
As we have noted, FMLA is a federal law outlining specific rights for eligible employees of covered employers, obligating those employers to provide unpaid, job-protected leave for qualifying reasons.
Paid Family Leave may be a state, local or optional insurance policy that differs from one jurisdiction to the next, separate from federal regulations, and where benefits may be more generous than those provided by FMLA. Depending on the circumstances, if a business offers paid leave they may qualify for the Paid FMLA Tax Credit for Employers.
Is FMLA Leave Affected by Individual State Laws?
Several states and local jurisdictions have established laws or created optional insurance programs 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.
Also, employees who are exempt from minimum wage and overtime requirements do not forego the FLSA exception by receiving unpaid FMLA leave. According to the Dept. of Labor’s “Employer’s Guide to the Family and Medical Leave Act”, employers “may make deductions from the employee’s salary for any hours taken as intermittent or reduced FMLA leave within a workweek without affecting the exempt status of the employee.”
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 job restoration would cause 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.
Can You Be Fired While on FMLA?
The answer to this question depends on several variables and differing scenarios. For example, while an employee's job can be terminated while they are on FMLA leave, they cannot be let go for asking for or taking FMLA leave.
On the other hand, termination is possible for any of the following:
- The employee neglected to apply for leave under the FMLA.
- The employee's job performance is deemed "poor" prior to their taking FMLA leave.
- Any misconduct or fraudulent behavior the employee commits.
Employers must have a legitimate and non-discriminatory reason for ending an individual's employment, regardless of whether they have applied for FMLA leave. In all cases, it's important that employers always maintain comprehensive documentation of the situation and consult legal counsel.
Does the FMLA Cover In-Laws?
The FMLA does not include a provision for the care of an in-law. However, an exception may apply where the individual previously stood "in loco parentis" for the employee when they were underage. This term is defined as "having had the responsibility of providing day-to-day care to the employee" and providing financial support during 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 amended the definition of ‘spouse’ in the FMLA regulations so that employees in legal, same-sex marriages have the same rights and privileges as those in opposite-sex marriages 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.
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.
Can You Tell Employees Someone Is on FMLA Leave?
Employers are not required to notify coworkers when an employee takes FMLA leave. The reasons behind time off under the FMLA are considered personal to the employee and employer involved, and discretion is recommended. Also note the reasons behind an employee's absence due to sick leave, family leave, and disability are protected against disclosure, according to law.
An exception might be when the employee taking leave has given permission, in writing, to disclose information to co-workers.
What Actions Should Employers Avoid While an Employee Is on FMLA Leave?
Certain actions are permitted while an employee is on FMLA, but others are not:
Federal law prohibits an employee's termination solely because they have taken FMLA leave. However, an employer may terminate an employee due to other causes, even while that individual is on FMLA leave. If any fraudulent information was submitted when requesting leave, that can be grounds for termination. In addition:
- Employers cannot rescind or otherwise deny an employee's group health insurance coverage while they are on FMLA leave.
- An employee on FMLA leave cannot be asked (with rare exceptions) to conduct any job-related tasks.
- Employers are not permitted to cancel or delay an employee's reinstatement upon completion of FMLA leave.
- Employers are also not allowed to change any significant aspect of the employee's position, such as pay, job responsibilities, and or place of work.
Should any of these violations occur, employees may opt to contact an employment lawyer.
Need Help Staying Compliant With FMLA Rules?
As has been noted in this article, employers covered by the FMLA must remain compliant with its rules and regulations. They should also be aware of related issues.
For example, 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.
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. Learn more about how Paychex HR Services can help provide the most effective HR management services for your business.