Last Updated on September 11, 2024

The Family and Medical Leave Act of 1993 (FMLA) is designed to help employees balance their work and family responsibilities by allowing them to take reasonable unpaid leave for certain family and medical reasons. This federal law requires covered employers to provide employees with job-protected and unpaid leave (generally 12 weeks) for qualified medical and family reasons.

Failure to adhere to the act may have serious financial consequences for employers including potential lawsuits and fines.

Some states have unpaid leave laws that piggyback off the FMLA. These laws change regularly; individual state labor authorities can provide up-to-date information. Employers must comply with state regulations if they offer more generous protection to employees.

Listen to the MyHRBuzz Podcast Episode “The Employer’s Playbook for Mastering FMLA“:

Covered Employers

Private sector employers with 50 or more employees, that live within a 75-mile radius,

for 20 or more workweeks during the current or preceding calendar year must comply with FMLA.

According to MyHRConcierge Sr HR Consultant, Emily Frederick SHRM-CP, companies with workers across the country can be covered if the company has “a central work location…and they would have to have at least 50 employees within 75 miles of that main office. If they have (additional remote employees) elsewhere around the country (that report to that central work location)… those employees around the country are still eligible for FMLA.”

Employee Eligibility

To be eligible for FMLA leave, an employee must meet the following requirements:

• Employed or at least 12 months by the employer (does not have to be continuous)
• Worked at least 1,250 hours in the 12 months before the leave begins
• Work in a facility that has at least 50 employees with 75 miles

Leave Entitlement

Eligible employees may take up to 12 work weeks of leave in a 12-month period for one or more of the following reasons:

• The birth of a son or daughter or placement of a son or daughter with the employee for adoption or foster care;
• To care for a spouse, son, daughter, or parent who has a serious health condition;
• For a serious health condition (including mental health) that makes the employee unable to perform the essential functions of his or her job; or
• For any qualifying exigency arising out of the fact that a spouse, son, daughter, or parent is a military member on covered active duty or call to covered active duty status.
• Frederick states that it is important to note that “for federal FMLA, the definition of a child stops at about age 23.” So, “an adult child is typically not covered.”

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.

Under certain conditions, employees may choose, or employers may require employees, to substitute (run concurrently) accrued paid leave, such as sick or vacation leave, to cover some or all of the FMLA leave period. An employee’s ability to substitute accrued paid leave is determined by the terms and conditions of the employer’s normal leave policy.

Key Employee May Not Qualify for FMLA

Key employees may not qualify for protection under FMLA. A key employee is one who is among the highest 10% paid employees in the company and whose job restoration may cause substantial and grievous economic injury to the employer. If permanent replacement of an employee is unavoidable, the cost of then reinstating the employee can be considered in evaluating whether substantial and grievous economic injury will occur from restoration.

Common Exceptions

These common situations are not covered by the FMLA:

• Minor or short-term illnesses that may cause the employee to miss work, such as the common cold and bouts of influenza that do not require hospitalization.
• Routine medical care such as physical checkups, lab work, and eye exams.
• Care for non-immediate family members.

Notification – Employees

The employee must provide as much advance notice as possible of the upcoming leave. For planned medical procedures, such as childbirth and non-emergency surgery, this typically means at least 30 days. For unplanned events, such as a serious accident affecting an immediate family member or medical diagnosis requiring urgent surgery, employees must notify employers as soon as they learn about the issue. Notice can be given orally or in writing. If possible, employees also need to make themselves available to answer follow-up questions from the employer, such as the expected duration of time off.

Certification Requirements

At their discretion, employers can require FMLA-qualified employees to certify the reason for their absence – for instance, by providing a written doctor’s letter.

Employees may be required to give notice of changed circumstances as soon as possible after the circumstances surrounding FMLA-qualified leave change. For instance, if the employee or immediate family member makes a faster-than-expected recovery, or if complications delay recovery and require additional leave. However, this is not a default requirement – employees only need to do so if their employer asks.

Notification – Employers

Covered employers must:

1. Post a notice explaining rights and responsibilities under the FMLA (a copy of the poster can be obtained from the DOL Wage and Hour Division website: https://www.dol.gov/whd/regs/compliance/posters/fmla.htm)
2. Include information about the FMLA in their employee handbooks or provide information to new employees upon hire;
3. 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
4. Notify employees whether leave is designated as FMLA leave and the amount of leave that will be deducted from the employee’s FMLA entitlement.

FMLA coverage begins when the associate is notified their leave qualifies for FMLA.

Certification

When an employee requests FMLA leave, 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. The request must be made by the employer within 5 days of employee’s request for leave and the employee has at least 15 days to provide info. If certification is not provided or is delayed, FMLA leave could be denied. Appropriate forms can be found on the DOL Wage and Hour Division website: https://www.dol.gov/agencies/whd/fmla/forms. Information required on the form will include Individuals involved, reason for leave, date condition began, duration of leave, and need for intermittent or reduced schedule leave.

However, not all instances of leave will require certification. For example, Frederick says that an employer cannot require a physician certification for new parent leave for a dad, because there is no physician certification for that. She also mentioned that “if the need for leave is physical, a company can always require a physician certification, but they don’t have to.”

Return to Work

Upon return from FMLA leave, an employee must be restored to his or her original job or to an equivalent job with equivalent pay, benefits, perks, privileges, status and other terms and conditions of employment. An employee’s use of FMLA leave cannot be counted against the employee under a “no-fault” attendance policy.

Employer can request fitness for duty certification. A job description outlining specific job functions should be given to the health care provider when fitness for duty certification is required. Without certification the associate may lose their job or reinstatement may be delayed. If the associate returns to work before they are fully recovered, they will be at greater risk of injury which then becomes a workers’ comp claim. Fitness for duty certification is not required for intermit or reduced schedules. If there is a reasonable safety concern, an employer can request recertification every 30 days. Depending on the associate’s condition, they may need ADA accommodations when they return to work.

Frederick states that it is suggested that companies request a return to work notice.

Employee Redress and Employer Penalties Under FMLA

If the Wage and Hour Division of the US Department of Labor determines that an FMLA violation has occurred, the affected employee may be entitled to the following:

• Lost Wages and Benefits. This category includes any lost wages, bonuses, benefits, and other compensation – plus interest – directly attributable to the FMLA violation, such as earnings employees would have received up to the leave period’s start date had they not been proactively terminated.
• Compensation for Actual Costs Incurred During Leave. This applies if employees didn’t lose wages, benefits, or other compensation as a result of the violation – for example, if the employer denied their qualifying leave request but didn’t fire them. It includes any expenses related to the reason for leave, such as the cost of medical care and supplies, up to an amount equal to 12 weeks’ wages plus interest.
• Equitable Relief. If the violation resulted in adverse employment action, such as termination or demotion, the employee is entitled to full reinstatement to a position with equal or greater responsibility.
• Attorney Fees. Fees incurred by the claimant for legal action against the employer, such as attorney’s fees and expert witness fees, must be paid in full by the employer. This isn’t necessary in all cases, as an employer may agree to settle and pay claims without going to court.

Health plan coverage and FMLA

Employers are required to continue group health insurance coverage for an employee on FMLA leave under the same terms and conditions as if the employee had not taken leave. Employees must be notified of any changes to coverage.

Employees are required to pay their share of premium when on leave. Payment plans can be the same as payroll deduction frequency or any other payment schedule agreed upon by the employer and employee. The employee can suspend coverage while on leave but coverage must be reinstated upon their return.

Employer notified employee of terms and consequences of late payments. Health insurance coverage ends if payment is more than 30 days late. The employer, however, must give the associate 15 days notice prior to terminating health coverage.

Partner with MyHRConcierge for Expert FMLA and HR Support

Navigating the complexities of FMLA and other HR-related responsibilities can be challenging for employers. This is where MyHRConcierge steps in as your trusted partner. Our team of experienced HR professionals provides personalized guidance and support to ensure your business remains compliant with FMLA regulations and other employment laws.

In addition to FMLA support, we also assist with a wide array of HR tasks, including policy development, employee relations, and benefits administration. By partnering with MyHRConcierge, you can confidently manage your HR obligations, allowing you to focus on growing your business and nurturing a positive workplace environment. Contact MyHRConcierge today at 855-538-6947 ext 108, ccooley@myhrconcierge.com or schedule a consultation convenient for you below: