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 Family & Medical Leave Act

For companies with 50 or more employees, the Family & Medical Leave Act (FMLA) entitles eligible employees the right to take unpaid, job-protected leave for specified family and medical reasons; during said leave group health insurance coverage must continue under the same terms and conditions that would apply if the employee had not taken leave.

Created in 1993, FMLA permits employees up to 12 weeks of excused absence from their jobs every year. It was enacted to aid employees in balancing work and personal obligations in times of crisis.

What are eligible employees entitled to?

Eligible employees are entitled to the following:

12 workweeks of leave in a single 12-month period for:

  • The birth of a child and to care for the newborn child;
  • The placement with the employee of a child through adoption or foster care and to care for the newly placed child;
  • To care for the employee’s spouse, child, or parent who has a serious health condition;
  • A serious health condition that makes the employee unable to perform the essential functions of his or her job;
  • 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 26 workweeks of leave in a single 12-month period:

  • to care for a covered service member with a serious injury or illness who is the spouse, son, daughter, parent, or next of kin to the employee (military caregiver leave).

 

FMLA is beneficial for employees experiencing pregnancy, prenatal complications, or the adoption/fostering of a child, chronic conditions (diabetes, epilepsy, etc.), long-term conditions (Alzheimer’s disease, cancer, etc.), hospitalization, or a condition that requires ongoing treatment (chemotherapy, dialysis, etc.).

Who is eligible?

While FMLA has many restrictions, two are of particular importance: employees must have worked at their company for more than 12 months, and must have worked at least 1,250 hours during the previous year.

Smaller employers are not required to provide FMLA leave to their employees. If a company employs fewer than 50 people within 75 miles of the employee’s worksite, the employee does not qualify for FMLA leave. This regulation was enacted to accommodate employers—small companies would find it more difficult to send a replacement far away if a needed employee were to take leave.

Is FMLA leave paid or unpaid?

The leave that FMLA regulations guarantee is unpaid. It is up to the employer to provide benefits and pay while an employee takes medical leave.

Are there different types of leave?

Yes. There are three kinds of FMLA leave:

  1. Continuous FMLA leave: An employee is absent for more than three consecutive business days and has been treated by a doctor.
  2. Intermittent FMLA leave: An employee is taking time off in separate blocks due to a serious health condition that qualifies for FMLA. Intermittent leave can be in hourly, daily, or weekly increments. Intermittent FMLA is often taken when an employee needs ongoing treatment for their condition.
  3. Reduced schedule FMLA leave: An employee needs to reduce the amount of hours they work per day or per week, often to care for a family member or to reduce stress.

 

Per FMLA guidelines, when they return from leave, employees must return to their former position, assuming they are able to perform the essential functions of that position. Returning employees who are no longer able to perform their previous job (newly disabled) must be provided with an alternative position with the same benefits, salary or hourly wage, and work hours.

Are employers required to share FMLA policies with employees?

Yes. While employers are not required to provide an employee handbook to employees, when one is so provided the contents must include paid time off and FMLA guidelines.

When an employee requests FMLA leave, the employer must provide a separate, written notice of the policy. Further, the employer’s failure to provide said notice entitles the employee to 12 weeks of FMLA leave plus any eligible paid time off accrued.

FMLA law states that the employer must provide the necessary FMLA paperwork to its employees if they express the need for leave. While FMLA guidelines outline the forms legally required to take FMLA leave, most employers add their own documents detailing any additional paperwork requirements or notification policies.

What does an employee have to do to take FMLA leave?

Employees must complete two forms when they request family medical leave:

  1. The FMLA Medical Certification Form: The employee’s healthcare provider must complete a certification form in order to ensure the validity of the employee’s, or the employee’s immediate family member’s, serious health condition. The employee must return the certification within 15 calendar days of receiving the form.
  2. The FMLA Notification Form: An employer must provide this form to the employee within two days of a leave request.

 

New FMLA forms are required for each new condition and FMLA leave.

All FMLA forms and information about an employee’s FMLA leave and condition must be kept confidential and separate from other employee files. It is an FMLA violation for an employer to share information about an employee’s FMLA leave with other employees.

Can employees use accrued vacation, sick and/or personal days on FMLA leave?

It depends. Per FMLA guidelines employers may require employees to deplete paid leave before taking unpaid leave. Many employers make this a requirement because it minimizes employee times away from the job. When not so required, accrued vacation or personal days may be used at any time during the FMLA leave.

Employer sick day policy varies, and employees may or may not be allowed to apply sick days to their leave. Some employers permit sick days use for employee illnesses only, meaning their employees may not use paid sick days to care for someone else while on FMLA leave.

Can employees on worker’s compensation or short-term disability take FMLA leave?

No. While FMLA allows for the substitution of paid leave, the Act’s provisions do not apply if a worker is receiving either workers’ compensation or short-term disability (even though the workers compensation or short-term disability may pay less than the worker’s regular pay). Under FMLA guidelines, however, employers should count this paid leave against the employee’s 12-week entitlement.

Are FMLA rules easy for employers to understand?

Not usually. FMLA is an ongoing challenge for HR professionals. Because its rules are so complex, companies are vulnerable to FMLA abuse, exploitation, misinterpretation, and incomprehension. It takes only one confused or misinformed employee to cost a business tens of thousands of dollars in FMLA lawsuits.

Where can employees go for assistance with an FMLA complaint?

Thanks to an unprecedented collaboration between the U.S. Department of Labor’s Wage & Hour Division and the American Bar Association Standing Committee on Lawyer Referral & Information Service (ABA LRIS), the Wage & Hour Division will now connect workers to a local referral service that will, in turn, provide the workers with access to attorneys who may be able to help. Besides providing workers a better opportunity to see redress for Fair Labor Standards Act (FLSA) and FMLA violations, this collaboration will help level the playing field for employers who want to do the right thing. As of December 13, 2010, complainants are given a toll-free number to contact the newly created ABA-Approved Attorney Referral System.

Sources:
U.S. Department of Labor, Wage & Hour Division website
FMLA website: Fmlaonline.com
Rapid Learning Institute website: HR Info Center

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