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| FMLA Solutions |
FMLA Compliance & Case Law
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ABOUT THE FAMILY AND MEDICAL LEAVE ACT OF 1993
The Family and Medical Leave Act (FMLA) of 1993 applies to all employers with 50 or more employees who have 20 or more work weeks in the current or preceding calendar year.
What does this really mean? Most importantly, the twenty workweeks are measured based on the entire calendar year and do not have to be consecutive. Included in this test are any full-time or part-time employees (including those not eligible for FMLA) whose name appears on the payroll; each must counted as employed for each working day of the week even if the employee did not receive any compensation for the week. An employee does not need to work on each working day of the week to be counted. If the workforce of a covered employer drops below 50 employees, the employer continues to be subject to the FMLA regulations until it fails to meet the requirements of the 50 employee coverage test for both the preceding and current calendar years.
Record keeping requirements rests with the employer. They must maintain FMLA leave records for 3 years. However, FMLA does not require employers to submit records to the Department of Labor, unless specifically requested. The employer must maintain medical records and documents for employees and their family members in separate files and treat them confidentially.
Eligible employees are provided up to 12 weeks of unpaid, job-protected leave in a 12-month period for specified family and medical reasons. Employees can take a leave for:
- The birth of their child, whether they are the mother or father.
- The placement of a child with the employee for adoption or foster care.
- To care for a spouse, child, or parent who has a serious health condition.
- To care for the employee’s own serious health condition.
To be eligible an employee must have been employed 12 months, must have worked 1,250 hours before the leave, and must be at a site where there are fifty or more employees within a 75 mile radius of that site.
To calculate the 12-month period, you can use a calendar year or fiscal year, or it can be based on each employee s anniversary date of hire. The best way to administer FMLA is to use the rolling twelve-month calendar method: simply look back at the twelve-month period preceding the leave. Whichever method you choose, it must be applied consistently to all employees.
Employers should require employees to provide medical certification that a serious health condition exists. Employers must notify their employees about the medical certification requirement with a letter stating the consequences of noncompliance.
After the request for FMLA is received, the employer must notify the employee within two business days of whether the leave counts against the twelve-weeks and whether the employer intends for any accrued paid time to run concurrently with the FMLA leave. If the employer fails to properly notify the employee, the absence will not count against the employee s twelve-weeks. This applies whether or not the employer intends for any accrued paid time to run concurrently with the FMLA leave. After proper notification, the employee must be given at least fifteen days to provide the employer with the medical certification. Initiating the process, by way of giving the employee written notice, starts the clock running; you should provider this written notice for each medically related request. Workers compensation and short-term disability, for example, are almost always FMLA-qualifying and the employee should be notified as such.
Employees seeking to use FMLA leave are required to provide a thirty-day advance notice of the need to take a FMLA leave when the need is foreseeable and such notice is practicable. If the need for leave is foreseeable, such as childbirth or scheduled surgery, the employee must schedule treatment in the least disruptive manner to the employer. If the leave is unforeseeable, the employee must notify the employer as soon as practicable, usually within two business days.
Employees are not required to use the term FMLA or family leave when making a leave request. Once your supervisors or managers know the reason for the leave, it is up to the employer to determine whether the leave is a qualifying event or not.
When returning from an FMLA leave, the employee must be restored to the employee’s original job, or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment. In addition, the employee s use of FMLA leave cannot result in loss of any employment benefits that the employee earned or was entitled to use before taking an FMLA leave, nor be counted against the employee under a no fault attendance policy.
As a specific example of the above, employees keep health coverage during the leave if they continue to pay their share of premiums. Employees who let their health coverage lapse during leave must be reinstated when they come back to work. If the employee does not return to work at the end of the leave, the employer is entitled to recover all cost incurred in providing these benefits as long as the employees are aware of this consequence at the beginning of their leave.
Requirements under the FMLA require every employer subject to the act to conspicuously and continually post and keep posted on its premises, in a place where employees are employed, a notice explaining the act's provisions and providing information concerning the procedures for filing complaints of violations of the act with the Department of Labor. |
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