7 Guidelines to Following FMLA

The Federal and Medical Leave Act of 1993 was enacted to allow employees reasonable amounts of unpaid leave for medical reasons to balance work and home life. The FMLA requires employers to provide employees with job-protected unpaid leave under qualifying circumstances. But determining who the law applies to and how it is enforced can be difficult. Employers may not be aware of which specific issues are covered by the FMLA or if an employee qualifies. It’s critically important for any employer to understand the FMLA’s role regarding their business to ensure full complicance. The FMLA regulations themselves should be consulted to clarify specific scenarios but in most cases if an employer follows these guidelines they will be found to have fulfilled their obligation to the law.

1) The Federal and Medical Leave Act applies only to covered employers. The HR department should first learn if the business is a covered employer under the act. FMLA laws apply to businesses with 50 or more employees within a 75-mile radius of an employee’s location. Obviously, then, the FMLA doesn’t apply to small businesses but it should be noted that the language of the law states that all public agencies are considered covered employers regardless of number of employees. For example, a school with a staff of only 20 is still considered a covered employer.

2) Once it has been determined that the FMLA applies to a particular business the next step is to provide notice and designation. The law requires a covered employer to post a copy of the Department of Labor’s “General Notice” in a prominent place. The General Notice, also known as WH publication 1420, informs employees of their rights under the FMLA. Employers must also provide a copy of the General Notice in an employee handbook, policy manual or “other written guidance to employees concerning employee benefits or leave rights.” It’s generally advisable to have all employees formally acknowledge receipt of the General Notice.

3) There has been some confusion over what constitutes a request for leave under the FMLA by an employee. The law does not require employees to expressly assert their rights under the FMLA for the act to apply to leave taken; the onus is on an employer to determine if a leave of absence qualifies for FMLA protection. According to a subsection of the FMLA: “In all cases, the employer should inquire further of the employee if it is necessary to have more information about whether FMLA leave is being sought by the employee, and obtain the necessary details of the leave to be taken.” Following an employee’s request for leave or the discovery by an employer that the employee’s leave is for a potentially FMLA-qualifying reason, the employer has five business days to inform the employee whether they are eligible for FMLA leave. Upon notification of their eligibility the employer must inform the employee of their obligations pertaining to the leave; the notification may include a request for medical certification.

4) As the name would indicate, the Federal Medical Leave Act provides for leave under qualifying medical reasons. However an employee does not have to be directly afflicted to qualify, as the FMLA covers employees with family members who may be ill. There are various subsections to the law with specifics regarding definitions of various terms, but Subpart A of the FMLA determines that the following reasons qualify for leave:

-The birth of a son or daughter, and care for the child following birth.

-Adoption of a son or daughter or placement of a child through foster care.

-To care for an employee’s spouse, child, or parent with a serious health condition.

-A serious health condition that prevents the employee from working.

-Because of a qualifying exigency arising when an employee’s spouse, child, or parent is a covered military member serving in a contingency operation.

-To care for a qualifying service member if the employee is the son, spouse, parent, or next of kin.

It should be noted the FMLA does not distinguish gender. Fathers may still qualify for FMLA leave because of the birth of a child.

5) Once an employee has taken FMLA leave the employer has certain obligations to the employee. Specifically, under the law, the employee has the right to take 12 weeks of unpaid leave every 12 months to care for a family member or recover from a medical condition. The FMLA provides job protection, meaning the employer is required to reinstate a worker returning from leave to the same position or one equivalent, with the same pay and benefits.

6) Other employment laws besides the Federal Medical Leave Act may apply to an employee’s leave of absence, such as the Americans with Disability Act or worker’s comp, if the medical reasons for leave occur in the workplace. When denying a request for FMLA leave employers should be wary of whether an employee qualifies for protection under another employment law.

7) Employers are required to keep for no less than three years records which include basic pay roll and employee identification data. Records should also include dates of requests for leave, the dates during which leave was taken, whether or not it was designated FMLA leave, and copies of all employee notices of leave as well as copies of notices provided to employees.