Guest post: What Employers Need to Understand About FMLA Leave

When a worker asks for time off the job, employers must deal with complex legal issues to respond correctly. While I want to briefly outline the Family and Medical Leave Act of 1993, or FMLA, let me make clear from the start any employer dealing with this issue needs to have an experienced advisor review its policies and practices, and help train the managers who will handle leave decisions and communicate them to workers. An expert can also advise you on any additional requirements imposed by state or local laws.

The Family and Medical Leave Act recently marked its 20th anniversary, having been signed at the very start of President Clinton’s first term. The law was intended to assure workers they wouldn’t lose their jobs if, for serious medical or family reasons, they had to take time off work. As often happens with government regulations, from that fairly simple premise, some fairly complex regulations were written by the U.S. Department of Labor, whose Wage and Hour Division enforces the FMLA.

So what is family and medical leave?

Basically, family and medical leave provides up to 12 weeks in a 12-month period of unpaid leave (some in Washington want to make that paid leave) for a worker to take care of his or her own serious health condition preventing performance of essential job functions, or to care for a serious health condition of a close relative (parent, spouse or child), or to deal with the birth of a child, or the adoption or foster-care placement of a child during the first year.

Note FMLA’s provisions on parental leave — taking time off after childbirth, adoption and foster-care placements — are unisex; not just new mothers, but new fathers, can take parental leave. Workers on FMLA leave get their employer-provided health insurance continued, as long as they make any required contributions, and generally must be reinstated to their former, or a comparable, job on returning (a limited exception applies to designated higher-paid “key employees” if a protracted vacancy would seriously harm the employer).

Congress a few years ago expanded the FMLA to provide new, longer “exigency” and “caretaker” forms of leave (up to 26 weeks in a 12-month period) to deal with emergencies or serious health conditions resulting when a parent, spouse or child is called to active military service. It also put in special rules for qualifying time for members of airline flight crews, and made some other changes. Those rules were just took effect in March, and are reflected in the revised FMLA posters employers should now be displaying.

And who can take FMLA leave?

To be eligible, you have to work for an employer covered by the FMLA law; for private employers, that means at least 50 employees working within 75 miles for at least 20 workweeks during the current or previous year. Most public-sector employers — all levels of government, and elementary and secondary schools — are covered by FMLA, regardless of how few workers they have.

A worker seeking FMLA leave must have worked at least 12 months for the covered employer – not necessarily 12 consecutive months — and must also have put in at least 1,250 hours during the 12 months before taking leave, or about 24 hours per week.

What should an employer do when it gets a FMLA leave request?

Even before getting a leave request, a covered employer must display rules on FMLA in labor law posters at its workplaces, and provide new employees with a notice of their FMLA rights. When an employee requests leave, an employer must inform the requesting worker within five days whether it has enough information for a decision on whether the worker qualifies for FMLA leave. The Labor Department has a form (WH-381) that employers can opt to use for that purpose.

Employers should note they are responsible for making that determination, whether or not the worker mentions FMLA. While FMLA rules say employees should give at least 30 days’ notice in requesting FMLA leave, that will not always be possible.

If the worker has not provided enough information for the employer to be able to determine whether the worker is eligible for FMLA leave, the employer can require the employer to produce the needed information within 15 days (DOL has certification forms), and can deny the request if the information is not produced or is inadequate.

Even if the worker does not qualify for FMLA leave — for example, by not having worked long enough to become eligible — the employer may have other types of leave — such as vacation, paid leave or disability leave — and the employer can indicate WH-381 form which of these are available. In fact, figuring the interaction of various types of leave, and sometimes the impact of additional state leave laws, is one of the most intricate issues raised by the FMLA.

When the employer has the information needed to determine whether the worker is or is not eligible for FMLA leave, there is (you guessed it!) — a DOL form, WH-382, for that, too. Either way, employees must get an explanation of their rights and responsibilities (such as keeping the employer informed of situation changes and plans to return to work, if they get the leave, or the rights to appeal or sue, if they are denied leave).

About the author:

My name is Lily and I work at Easy Business Posters to help employers stay in compliance with the state and federal labor law poster requirements. I also want to help employees better understand their employment rights by writing and publishing poster related articles online. Anyone interested in labor law posters and employment law can contact me through Twitter.