Chris Cooley (00:02.988)
I want to thank you for joining us today on My HR Buzz, the podcast. I think we’ve got a great, great topic for you. We’re going to talk about leave, which is one of our most common questions that we get. And so we thought it would be a great topic. And for that, we’ve got Emily Frederick, who’s a senior human resources consultant with My HR Concierge and also our lead guru. And so I appreciate you jumping on it today.

Emily (00:27.171)
Yeah, thanks for having me back. This will be a fun conversation.

Chris Cooley (00:30.572)
Yeah. And so, you know, really, as we think about leave, I think the first thing that kind of pops in our head is there’s a lot of different levels, State, federal and municipal even at this point. But maybe we start at the federal level. We talk a little bit about FMLA and how that affects employers and employees. so tell us a little bit about FMLA and what it is at a high level.

Emily (00:56.43)
Sure. So the Family Medical Leave Act was passed in 1993 as a way for there to be something on the federal level for all employers to abide by that it grants employees really the ability to have some work -life balance. So employees are able to, if they’re, if they are qualified and if their company offers FMLA because their company is a covered employer, then they are able to take up to 12 weeks of unpaid time off.

to expand their families, care for a loved one with an illness or care for their own serious medical condition. And there’s certain eligibility criteria they have to meet and even certain eligibility criteria that companies have to meet before they can even offer it.

Chris Cooley (01:44.29)
So from a, well, let’s look at good thing. So from an employee perspective, who is eligible for FMLA?

Emily (01:52.142)
Well, if they work for a covered employer, first of all, then and and the covered to be a covered employer, a company has to offer has to have at least 50 employees that live within a 75 mile radius. And then those employees in order to be eligible for FMLA, they need to have worked for the company for at least 12 months, worked a certain number of hours within that 12 months, which is 1250 hours. And they have to have a qualifying health condition.

Chris Cooley (02:22.68)
Now, does that 12 months have to be concurrent?

Emily (02:25.838)
It does not actually if an employee works for a set amount of time and then leaves for a little while then comes back that time can all count.

Chris Cooley (02:27.851)
Okay.

Chris Cooley (02:37.464)
Okay, which I get is big because a lot of the industries that we work in, which we see a lot of rehiring and those things. So I guess these companies really need to kind of take into account all stance within that 12 months or within that within that period. So if I’m right, they go back is the is that 12 months, it doesn’t have to be concurrent. They do have to work. But but in that 12 months can go back by almost seven years.

Emily (02:51.671)
Yeah, it does.

Emily (03:07.042)
That’s right. a month here and a month there over the past seven years an employee can be eligible.

Chris Cooley (03:12.802)
That’s, yeah, that’s, you know, just the record keeping for that is tough, especially as I mentioned in a lot of these, like we work a lot of grocery and those kinds of industries and you have people coming and going all the time.

Emily (03:24.884)
Absolutely. Yeah, the record keeping is actually one of the strictest parts of the FMLA. I mean, there are very specific rules on, know, payroll, payroll information has to have been kept and any request for leave has to have been documented, etc, etc.

Chris Cooley (03:41.08)
And I guess is it any employee that works 1250 hours? So therefore we’re taking out the full -time and part -time designation out. It’s just any employee.

Emily (03:53.902)
Yeah, that’s right. So if the company is eligible, anyone who has worked and then here’s where the timeframes really come into play because the employee has to have worked that 1250 hours within the last 12 months. So, you know, the total 12 months is the first piece of the eligibility. And then as long as they’ve worked 1250 hours within the last 12 months, as of the date of the leave request, then eligible.

Chris Cooley (04:16.728)
Okay, okay, okay, now that makes sense. And so, all right, so that’s kind of from the employee perspective, what they’re, who’s eligible. And if we back up a little bit, we talked about employers that were qualified employers. So they have to have the 50 employees within the 75 mile radius. So if you have a, you could have a hundred employees,

But if you have one in New Orleans, you have 10 in New Orleans and 30 in Dallas and they’re spread out. If they’re outside of that 75 mile radius, they don’t have to provide FMLA.

Emily (04:58.382)
That’s right. So the company has a central work location, maybe a main office, and they would have to have at least 50 employees within 75 miles of that main office. Now, if they have an additional 25 or 30 employees elsewhere around the country, as long as they have that 50 within that 75 mile radius, those employees around the country are still eligible for FMLA. But the company has to have

to be compelled to offer FMLA, they would have to have those 50 employees within the 75 miles of the main office or the reporting for the employees.

Chris Cooley (05:38.624)
Okay. So that’s kind of how they, I guess they factor in remote workers. So if a remote worker reports to that main office, even though they’re in California and the main offices in New York, they would still get the FMLA.

Emily (05:55.694)
Yep. Yeah, as long as again, 50 employees within that 75 miles of that main office employees anywhere else are still eligible.

Chris Cooley (06:05.656)
So let me ask you this question. So I’ve got a main office that’s got 50 employees within the 75 miles. And then I’ve got satellite offices. So I’ve got a satellite office that has 30 employees that’s 200 miles away. Did they fall within that? Or because they’re an office, not a quote remote worker.

But an office that’s outside of that 75 mile radius, did those employees, are they eligible for FMLA?

Emily (06:43.586)
know if they are reporting to that satellite office, that’s where they get their work instructions, that is their work location and they actually do not qualify for the FMLA.

Chris Cooley (06:53.94)
Okay, so you have to have like a doctorate and leave to figure all this out. Is that what we’re Okay, well good. do we know any… So we have that main office, right? And we’ve talked about the satellites. One of the things I was talking to a group the other day and they are…

Emily (06:59.756)
Basically, yes, an immaculate flowchart.

Chris Cooley (07:22.808)
They’re a consulting firm, a real estate consulting firm, and they have, they were under 50, but let’s say that they had 50 employees. They had no office. So everybody was worked out of their home, all 50 employees. We talked about how remote if they are going back to a main,

location, they kind of if they report to that main location, that’s where they get their eligibility. What do we do? Or is there any guidance on how we address this with these with these companies that are now just fully remote? I mean, they don’t even have office space.

Emily (08:05.966)
So first of all, you would consider each employee is getting their work instructions from one place that is not their home, right? So the government says your residence is not a work location. You’re getting your guidance from somewhere else. However, if it’s like you mentioned, and the person they’re getting their guidance from, say the president of the company actually communicates with all 50 employees,

and he lives in one place and there are not at least 50 employees that live within 75 miles of his location, then we don’t know really. So the Department of Labor has not issued guidance on what to do for fully remote companies. It’s such a new concept. And we all know the government’s a little bit behind on big things that come in. It’s tricky. And a company would really just have to make some determinations on their

Chris Cooley (08:54.221)
Yeah.

Emily (09:02.764)
there and that can be a

Chris Cooley (09:06.816)
Okay. mean, they’ve only had four years. So I guess it’s probably, you know, I understand. So, okay. So I guess in those situations, it really is more of a, it’s a gray area and it’s just kind of a company is going to to figure out which side of that gray they’re going to fall on, whether they’re going to offer it just to be safe or how they do that. Okay. So, so what is,

Emily (09:14.498)
That’s right. That’s right.

Emily (09:31.32)
That’s right.

Chris Cooley (09:36.802)
So we’ve got employee, they’re eligible. What’s an eligible situation? So what kind of constitutes where they can go? don’t know.

Emily (09:46.494)
Sure. Well, it’s the types of situations it covers is expanding the family. So birth or adoption are covered. Any serious health condition is covered and caregiving for an immediate family member is covered. The definition of family member is typically a parent, a spouse, a child are the most immediate definitions. And for federal FMLA, the definition of a child

stops at about age 23. So it can’t typically can’t be any child, know, an adult child is typically not covered.

Chris Cooley (10:26.198)
Really? Okay, I didn’t realize that. So I didn’t realize they put H limits because it seems like your kid’s always your kid, right?

Emily (10:28.269)
Mm -hmm.

Emily (10:33.262)
I know. Yes, I agree. But yeah, it’s a little bit tricky when they get older. And now there are special circumstances, of course. So if a child is truly dependent on a parent, so if it’s a special needs child, those are still covered.

Chris Cooley (10:38.877)
huh.

Chris Cooley (10:48.0)
Okay. So, and so how, so in these situations, and it sounds like it’s really immediate family, grandparents, it sounds like even in -laws may not be covered. For federal, for federal.

Emily (11:05.486)
That’s right, for federal, sometimes those are covered under state laws, which are a little bit different, that, course, is just how they all intertwine and it all gets tricky. But for federal, it’s parents, children, spouses.

Chris Cooley (11:13.388)
Okay.

Chris Cooley (11:22.272)
Okay, and so how long do they get?

Emily (11:24.622)
They get 12 weeks in a specific 12 -month period. So a company would have to decide what that 12 -month period is. There are a few different options. It could be a calendar year. It could be a rolling 12 -month period. But they get 12 weeks, up to 12 weeks of determined by the nature of the illness or determined by the nature of the need for the leave.

usually maybe with a doctor’s certification saying how much time they need off of work, but they get up to 12 weeks.

Chris Cooley (11:58.584)
Now, do they have to take the 12 all at one time? Or say, for instance, maybe they have like cancer where they’re going and getting chemo and it’s not a need that’s concurrent.

Emily (12:10.542)
That’s right. So intermittent FMLA leave is entirely possible. And at that point, it just has to get broken down into 480 hours. And so an employee technically gets 480 hours of leave that they can use within 12 months.

Chris Cooley (12:20.172)
Okay.

Chris Cooley (12:26.904)
Now, are there increments you have to take that 480 hours? So for instance, they have to take a day at a time or an hour at a time, or is that more company policy?

Emily (12:36.462)
Yeah, that’s pretty much driven by company policy. And a lot of companies will require at least a half day, but they can allow it to be done incrementally by the hour. say an employee has a standing therapy appointment every Tuesday from 12 to one, then that one hour per week can be counted.

Chris Cooley (12:39.404)
Okay.

Chris Cooley (13:00.768)
Okay, okay, that’s good. Especially, like I said, I mean, there are instances, but I also get the record -keeping side too, right? Having to start tracking that. And so I guess from an employer perspective, and we’ll talk a little bit about the employer responsibilities later, but, and you mentioned it earlier, the record -keeping on this is so important. And I know, you know, one thing for a lot of these employers, my assumption is they’re tracking it probably through payroll.

But a lot of times if somebody’s out and they’re hourly, they’re just not putting hours in.

Emily (13:37.794)
That’s right. so if someone’s out, whoever is the person in charge of tracking the leave will need to know if that person was off of work for the thing that they have approved FMLA leave for or not. Employers can require doctor’s notes every single time someone is absent from work, even if it is on a recurring intermittent basis, they can require a doctor’s note so that the leave is accurately tracked.

Chris Cooley (14:04.416)
Okay. Yeah, because I could see where that could get. Yeah, because that’s a point I hadn’t thought about specifically if it’s intermittent. It could be that they’re off, but maybe they just had PTO that day. Maybe they had something that they were going to and it’s not FMLA. So there’s a lot of coordination within this as well.

Emily (14:23.742)
yeah. Yes. you know, it’s not always typically or I guess in smaller companies, it might just be a payroll person that’s keeping up with it. But a lot of times there is someone who manages to leave a benefits person could be involved and then they’ll have to coordinate the times off along with the approved absences.

Chris Cooley (14:42.53)
Okay, so that makes sense. So now we kind of know what it is, we know why they get it, we know how long they get. What are the responsibilities? how does that employee, what protections do they get as part of this? And what are their responsibilities to make sure that they get it?

Emily (15:03.384)
Well, you it really starts with the employer. So if an employer offers FMLA or if they are a covered employer, then there is a poster that can be printed out from requested from the Department of Labor. And that has to be displayed to every employee to let employees know that FMLA is available if you’re eligible for it. Employers can display that physically on a a poster.

or they can actually just put it on their company internet. It can be displayed electronically. That’s not a problem. And then if any employees are eligible for FMLA, if you have people who have had employed for longer than 12 months, it needs to be in a company handbook. There needs to be a paper policy that is given to employees. And I say paper, but that could also be electronic. And then

If an employee needs leave, at least they’ve been provided with the fact that the company is a covered employer and that FMLA is available to them. And so typically what happens is an employee says, need to take X amount of time off for a medical condition. And then it is up to the employer to let the employee know that they are or are not eligible for FMLA leave and explain to them their rights and responsibilities.

which comes on a piece of paper from the Department of Labor, and they have five days to do that. the five days from the time the employer is made aware of the need for leave, those rights and responsibilities have to be in the hands of the employee. And then that explains everything to the employee, whether they are eligible or not, and then what it means that they are eligible.

Chris Cooley (16:35.608)
Mm

Chris Cooley (16:39.768)
Okay.

Chris Cooley (16:47.648)
Okay, now, okay, so, so they have they have the paperwork and to your point, these are forms that you can find on the DLL website. So they, they basically, it’s hard not to get it right. With that, because it’s there. Now there are questions that that company has to answer. One of which, which is a common question is, you know, what do I do with benefits? Which will be on that because I know I was talking to a group one time. And

Emily (16:59.683)
Yes.

Chris Cooley (17:15.672)
It seems like that’s always a question is what do I do with benefits while employees are on FMLA? What they did is they just paid the whole premium for the employee for their full 12 weeks because they didn’t think they could charge the employee premiums. The employees share during that time. So how does that work? How do the benefits work within that period?

Emily (17:38.766)
Yeah, so every company is going to have to set their own policy and decide. The employee has to be allowed to keep their benefits for the 12 weeks of the leave. So FMLA provides job protection and benefit protection. And what that means is if the employee is willing and able to make their standard premium payments, so their employee portion of the payment.

then they have to be allowed to make those payments during the leave and keep their benefit. An employee can choose to not keep their benefits during the leave. They can say, I’m not going to be able to pay for this and I don’t want to have to owe money for it when I come back, so please turn my benefits off. Though if the need for leave is medical, who would want to be without their insurance while they’re dealing with a medical condition? The company can.

Chris Cooley (18:27.223)
Yeah.

Emily (18:34.09)
certainly choose to pay the entire premium for the employee, but they can also certainly set a policy that the employee must make their standard employee only premium payments while they’re on leave. And then the company can actually terminate the benefits if the employee does not make their benefit payments while they’re on leave. It would need to be written in a company policy that if we don’t receive payments after a set grace period, then benefits will be terminated. But

Because the benefits are protected, as soon as the employee comes back to work, they have to be reinstated immediately to those same benefits with no waiting period.

Chris Cooley (19:12.376)
Okay, all right. No, and I think that that makes sense. So essentially, that employee can do whatever they want with those benefits in those 12 weeks. Yeah, but I guess it’s important that the employer has that information on how they want that to those benefits. And then also the consistency of that between employees so that they’re not

Emily (19:22.358)
Yeah, it certainly is the employees choice for sure.

Chris Cooley (19:39.128)
Do they have the ability because depending on that, to your point, that person situation, it could be that they’re out for medical, so they want to keep those benefits. But I mean, can they vary that? So because some people, it may be that they don’t have any income during that 12 weeks and they’re like, I need my benefits, so I’ll just pay you when I get back. How does that work?

Emily (20:02.7)
Yeah, yeah, that is that’s also an option that a company can have. So one of the one of the ways we allow a company to choose when, say, when I’m writing a handbook, one of the ways we allow a company to write that policy is to say that the method of payment for the benefits will be determined at at the time of the leave. And so because just like what you’re saying, every employee has a different situation.

So if the company says across the board, every employee will get to determine how they’re going to pay for their benefits at the time of the leave, then that’s totally fine. Many companies do have a policy where an employee doesn’t have to make the payments while they’re on leave because in most cases they’re not being paid. So, and it’s not as though benefit premiums are necessarily cheap. So they’ll allow a company to pay when they come back to work to set up a payment plan.

Chris Cooley (20:45.08)
Right.

Emily (20:57.162)
Again, it can vary from employee to employee. As long as everyone is given the same opportunity by the company and there’s not any room for discrimination, then that’s definitely a fine policy.

Chris Cooley (21:03.627)
Mm

Chris Cooley (21:09.848)
Okay, good, good. Now, so they’ve left and we’ll talk again, we’ll talk about some employer responsibilities, but they’ve left and now they come back. So a lot of times in these companies, even though they’re 50 employees, a lot of these companies are smaller or they have very key employees. there may be somebody that leaves that, you know what, I just can’t have somebody, I cannot not have somebody in that position.

And so I have to backfill. And so when they come back, what’s the company’s responsibility? Because they have to have, you know, they get, they have job protections. What’s the company’s responsibility to that employee as far as the job they come back to?

Emily (21:57.422)
There are two different situations. So in general, an employee must return to the same or equivalent position with the same pay and the same range of job duties. Now, there is a situation a company can have a policy that key employees are not afforded that particular protection.

In order for someone to be a key employee, they have to be among the higher salaried employees in a company. And they have to have a position that typically they are the only person in that position. An employee, an employer has to notify an employee that they are a key employee at the time that they request the leave. And they have to be notified that they may not be coming back to the same position. But when they do come back, they would still need to be making

around the same pay and have around the same duties, but it may not be exact because they were a key employee.

Chris Cooley (23:01.462)
Okay. So, for, for non key employees, it sounds like what they would have to do is they would just have to give them a job that obviously pay has to be the same. duties could vary a little bit, but it needs to be in the same rank.

Emily (23:21.836)
Yes, the same level of responsibility.

Chris Cooley (23:23.616)
Yeah, yeah. Okay, okay. No, that’s good. And so also, if we back up a little bit to the employer part, we talked about the notice of rights and responsibility. We have to get that within five days of learning. Walk us through those next steps. What’s left? do we get doctor certification? Do we get, you know, and then as they come back, do we

get returned to work documentation, how does that work and flow?

Emily (23:57.454)
Sure. So it sort of depends on what the need for the leave is. A company in general can always require a physician certification for every need for leave that has to do with themselves or a family member having a physical illness or injury. A need, a physician certification can never be required for leave to bond with a new baby.

So if it’s a new parent leave for a dad, the company cannot require a physician certification for that because there is no physician certification. Now, if the need for leave is physical, a company can always require a physician certification, but they don’t have to. So a company knows good and well that their employee is about to have a baby and is going to need.

Chris Cooley (24:36.737)
Right.

Emily (24:55.15)
the entire 12 weeks off to recover from that childbirth, they don’t have to get a medical certification for that. We do always suggest that companies require a return to work notice, a release to work from a physician that includes any restrictions or no restrictions that an employee may have. And I would always request a return to work notice, even if someone was off work for having a baby, then I would say,

You don’t have to have a medical certification. We know what the need for leave is and about how long you’re going to be off work, but we will require your physician’s release for you to come to work. And then it also, there’s a lot of protections there for the company if they do always require a physician certification, because the physician certification is going to tell the company how long the employee needs to be off work, when the physical ailment commenced, when the recovery period is.

expected to be over so that they can really do their planning for coverage for the employee and things like

Chris Cooley (25:59.192)
Okay, so what happens at the end of the 12 weeks? they get their return to work information and it says, you know what, they really don’t need to come back to work for another two weeks.

What happens at that point?

Emily (26:16.888)
That is the beautiful place where other laws and other regulations come into play. And at that point, we’re actually no longer dealing with FMLA. The impact, so the job is no longer protected, the benefits are no longer protected, but the company may have a duty under the Americans with Disabilities Act to allow that employee to take the additional time off because their physician’s requiring it.

Chris Cooley (26:24.241)
Hahaha

Chris Cooley (26:33.802)
huh.

Emily (26:45.774)
They are making an accommodation based on a physical requirement. And I would highly recommend a company if it is not going to create an undue burden for them, an undue hardship, that they allow that additional two weeks of leave. And then how they allow it depends. Maybe they are only, the company is only able to accommodate that leave for that specific position the employee was in for exactly 12 weeks.

They don’t have to keep that position open any longer after the 12 weeks. An employee can still be on leave and Mike could return to work in a different position, but their position was no longer protected. gets, the minutia can get really, really huge there.

Chris Cooley (27:31.512)
Yeah, it’s almost like a big spider web. They just all intertwine in some way, some fashion. And I know, you know, one thing too. when does the 12 weeks clock start?

Emily (27:35.412)
That’s right.

Emily (27:47.278)
Technically, the 12 weeks clock start starts the day the employee has been issued their eligibility notice and, or no, I’m sorry, it depends. So the 12 weeks can start on the day the leave begins. If the employee was given all of their notices properly and they gave advance notice for their need for leave, the 12 weeks starts on the first day of their leave. If an employee has actually been off work already for three weeks,

nobody gave them rights and responsibilities, the company was unaware, then their 12 weeks doesn’t start until they’ve been given the notice of eligibility and the rights and responsibilities. So the employee has to be notified in order for the 12 weeks to begin.

Chris Cooley (28:30.88)
Yeah, we had that happen one time where we were talking to a group and a guy went out on, I think it was a heart condition, right? So went out and had heart surgery and didn’t go well. know, Joe was going to be out for a couple of weeks. We don’t need to do all the FMLA stuff. And so he was out, he may have been out six or eight weeks and the company’s coming back going, look, we…

You know, we can’t have him out that long. We need to let the guy go. And it’s like, well, one, he’s got FMLA, right? He has some job protections, but two, when did you give them their, his rights and responsibilities? said, I don’t know what that is. And they weren’t a client at the time. But so we were like, so it was, well, you need to give him that. And not only can you not let him go, not only has he already gotten six weeks worth of off,

Emily (29:13.727)
thank goodness.

Chris Cooley (29:28.92)
Now he gets another 12. So he’s getting 18 weeks off because you didn’t provide that rights and responsibilities. And so that’s always so important is to let them know because that clock doesn’t start. And a lot of people don’t realize that.

Emily (29:45.026)
That’s right. That’s right. They just assume that, no, no, no, we said they were out on FMLA. So it’s FMLA. No, it’s not. Unless you provided that rights and responsibility sheet, it’s not FMLA yet. So, yeah.

Chris Cooley (29:55.928)
But yeah, you know, you talking about that ADA, had a we had a window on the stories forever. We had a deal one time where where a guy was out. He had he had he had a condition. I forget what it was. And again, this was a group. They weren’t a client. We were just talking to him and he went out and. Went out on his 12 week.

and he went out with a surgery. was a physical ailment. forget what it was. was like a again, it was like a heart condition or something. And got to the end of the 12 weeks and they’re like, if you can’t come back, you’re out. So they fired the guy. And look, and this was a guy been there forever. They all knew Joe. He’s an awesome guy. No worries. Well, the problem was that he

He was an older gentleman, didn’t have another job, he was incapacitated, he couldn’t work, and they did not consider the spider web, the ADA and all those things, and he came back and sued them and got a nice chunk of change because they didn’t afford him those other rights.

Emily (31:10.606)
Because at that point, the company has to engage in the interactive process with an employee and see if they can make an accommodation and an extended period of leave is an accommodation under the ADA. if allowing that leave does not cause a huge undue burden on a company, and undue burden is really difficult to prove, if you are a profiting

company. It’s hard to say, no, no, no, we can’t allow him to stay off to stay on leave because it’s affecting us in major, major ways. Then then you’re in violation of the ADA for not for not engaging, engaging in the interactive process.

Chris Cooley (31:41.197)
Mm

Chris Cooley (31:57.548)
Yeah, so it’s crazy. And again, I think it goes back to a lot of people and companies are just not fully aware of how all this works. And it’s so important that they do. And when these issues come up, they get guidance and consultation on how to handle them. there is a lot of risk at this too, if they’re not doing this correctly.

Emily (32:27.114)
Absolutely. So yeah, that’s why we like love to answer leave questions. It’s one of my favorites.

Chris Cooley (32:31.736)
So, they can’t, you know, so their job is protected, they, can, if they do something else during that period, they can be turned, correct? So if you find out they’re stealing or anything like that, so it doesn’t totally preclude them. They can’t become a bad actor and get their job.

Emily (32:53.316)
that’s right. Yeah, absolutely. So even if, say, an employee was having, say a company needed to downsize and needed to perform some layoffs, but they have this one person on FMLA, being on FMLA does not protect them from being part of the layoff. It’s something that they can’t terminate an employee as retaliation for being on leave or for having the medical condition that requires

requires the leave. But if there was, say, if an employee was already being disciplined, there had been multiple write -ups, and it was, of course, all very well documented, and a conclusion of an investigation happened and it turned out the employee needed to have been terminated, then they can still be terminated when they’re on leave. Being on leave does not protect them from a termination for a different reason.

Chris Cooley (33:34.123)
Yeah.

Chris Cooley (33:51.468)
Well, so, okay, so we’ve talked about FMLA. What we do know, and we talked a little bit about ADA, which we also know now states and even some municipalities have lead laws. And so maybe from a high level, as an employer, how do I address all these things? How do these things work together?

Emily (34:08.024)
Yes.

Emily (34:20.62)
My recommendation for any employer would be to start with their specific local jurisdiction. Especially if they live and work in a bigger city, check and see if there are any leave protections for the city you work in. And then go up to the state level. Check and see if your state has a family and medical leave, paid or unpaid, and then

you’ll put those protections into place next, and then you move up to the federal. So if you know your state doesn’t have any protections, go straight to federal. But I would definitely recommend always looking into that first.

Chris Cooley (34:59.832)
And I know that’s the one thing too, is it’s important that from a state perspective and in municipal, that they really understand, well specifically state, they really understand the nuance of those requirements. Because I know, and we talk about this all the time, I’ll be talking to clients that are multi -state that have handbooks. And they just say, well, I know California has,

they provide more leave or they have a leave protection, I’m just going to use the California one for everybody. And we know that there’s problems with that.

Emily (35:37.238)
Yeah, absolutely. mean, there are some states that offer a paid leave where an employee would need to apply into a system and get approval from the state that they live in for their leave. So, know, California wouldn’t come into play if that employee lives in Colorado. And then there are other states that have some states have higher employee count thresholds.

Other states have much lower employee count thresholds on when employees are eligible. In Colorado, you just have to have one employee and that one employee is eligible for 12 weeks of leave after a period of time.

Chris Cooley (36:20.672)
Yeah, and I think that’s a great point because a lot of them accrue differently. And I think there’s a lot of employers out there that will say that do that. They just take a state and pick it. And that’s what they’re going to do. But that’s really not going to be compliant. And God bless them, because I guess that’s our business case, right? You know, we help with that. So it puts food on the table.

Emily (36:39.35)
No.

Emily (36:44.692)
Absolutely.

Chris Cooley (36:50.976)
So, okay, so what, is there anything that we’ve missed that you can think of that you wanted to make sure that was important to point out?

Emily (37:00.346)
You know, there is one thing that’s always been really big to me is I think a lot of employers don’t know that an employee does not have to request FMLA leave. They don’t have to request FMLA leave specifically. They don’t even have to request leave in general to be offered the protections of FMLA. So if an employer is a covered employer and they think that there is a medical need for leave for one of their employees,

Chris Cooley (37:20.108)
Okay.

Emily (37:28.118)
It’s the employer’s responsibility to provide the rights and responsibilities to the employee. Even if the employee has never said, hey, I need to take time off. It’s the employer’s responsibility to know that the need for leave is there and send the information along.

Chris Cooley (37:44.586)
Okay, so I guess as long as there’s some, so I guess if somebody’s going out on PTO, I guess the catch is typically that supervisor is gonna say, what you doing?

Emily (37:55.404)
Yeah, absolutely. And yeah, if a supervisor knows that Joe is having back surgery next week, but Joe’s only requested PTO for five days and hasn’t specifically said, I need FMLA, but Joe knows it’s Joe’s responsibility to tell management, to tell the company that this employee is taking a medical leave and it could be covered by FMLA.

Chris Cooley (38:21.824)
And I guess the trick to it too is, when we get into FMLA, typically we’re talking about longer leaves. And it’s hard to take a longer leave without somebody knowing why.

Emily (38:33.204)
Absolutely. That’s right. Well, and here’s a tricky thing. FMLA coverage begins if an employee is only off work for three days. So if a company, covered employer, a large company has an employee who has called into work on the third day, if that employee is called out because they are sick on a third day, that triggers FMLA protection. And so it’s

Chris Cooley (38:37.525)
huh.

Chris Cooley (38:57.836)
Really? Okay.

Emily (39:01.326)
They can be off work for two days, but if they call in after the third day, so they can be off work for three days. If they call in after the third day, FMLA is triggered. And that leave is most likely completely job protected. There can be no retaliation. If an employee is only out for one day, but the night before they were admitted to the hospital and they wound up staying in the hospital for just 24 hours, that 24 hours,

Chris Cooley (39:23.771)
huh.

Emily (39:30.456)
can be FMLA job protected because they were admitted to the hospital.

Chris Cooley (39:35.124)
Okay. So let me ask you this. So is that three days out? Is that like a, if an employee no call, no show, they just, for whatever reason, they were out emergency surgery, was emergency with my child. If they just didn’t show, if they call in within that three day period, it’s FMLA? So you couldn’t, okay.

Emily (39:58.094)
That’s right. That’s right. If they call on the fourth day and say, I’m so sorry, I couldn’t get in touch with anyone. It was an emergency. I didn’t have my phone. But a company can require the physician certification. And if the physician certification comes back and the doctor has signed off, yes, this employee was in the hospital with their child who had emergency appendectomy, then those three days are totally job protected.

Chris Cooley (40:24.982)
Okay, I did not know that. Yeah.

Emily (40:27.342)
Yeah, that 72 -hour rule is one of the more interesting facts of FMLA.

Chris Cooley (40:35.608)
So what are there any other nuggets there that you want to drop before we?

Emily (40:40.866)
I think those might be my big ones. Yeah. Yeah. Yeah.

Chris Cooley (40:42.582)
Is that it? Okay. Well, good. Well, I really appreciate you joining us. I think it’s a great topic. I think it’s a lot of great information. I think that, again, this is one of our, I don’t want to say popular topics, but it’s definitely one that people call on the most. So I think it’ll be very, very helpful.

Emily (41:03.82)
Yeah, well, I’m glad I got to have it with you. I enjoyed it.

Chris Cooley (41:06.557)
Yeah, well, thank you and I want to I want to thank everybody that listens to the podcast We really appreciate you joining us and we’ll talk to you next time

Emily (41:15.502)
Thanks, bye.

Chris Cooley (41:20.448)
All right.

Emily (41:21.294)
All right, thanks.