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Guide to the Family and Medical Leave Act (FMLA): What employers need to know

Updated: July 28, 2022

By: Lillian Mirakhor

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Since being signed into law nearly 30 years ago, the Family and Medical Leave Act (FMLA) has been used by Americans more than 200 million times. But even though millions of people have benefited from this important law, you may not be familiar with all of the finer details around what it requires and how it could apply to your workers.

 

If the term FMLA is new to you, here’s a quick primer: The law provides up to 12 weeks of unpaid leave and job protection to employees who need to take time away from work to care for themselves or a family member during a serious illness, injury, or after the birth of a child.

 

According to the Bureau of Labor Statistics, 23% of all civilian workers had access to paid family leave in 2021 and 89% had access to unpaid family leave. Of the 20 million people who take FMLA leave each year, 21% use the time for the birth or adoption of a child and 73% are caring for their own injury or illness or that of a loved one.

So, let’s dive into what employers need to know about the FMLA, how employees qualify for the time off provided under the law, and what circumstances are covered by FMLA.

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What is FMLA leave and how does it work?

Before the FMLA became law, there were few federal protections to cover personal leave needs for workers. Instead, such coverage was dependent on individual state laws and company policies.

 

Now however, private employers with at least 50 workers are governed by the FMLA (we’ll get into more details about this below) and are required to provide eligible employees with up to 12 weeks of unpaid, job-protected leave.

 

But, not everyone who works for a covered employer is eligible for FMLA benefits.

When is an employee eligible for FMLA?

To take leave under the FMLA, an employee must first meet all of the following qualifications:

  • Worked for the employer for at least 12 months
  • Accumulated at least 1,250 work hours for the employer in the 12-month period preceding the leave
  • Work at a location where the employer employs at least 50 employees within a 75-mile radius
  • Work for an employer that is covered by FMLA law

Did you know?
After being introduced in Congress every year between 1984 to 1992, The Family and Medical Leave Act (FMLA) was signed into law by President Bill Clinton in 1993.

What is FMLA used for?

The Department of Labor’s Wage and Hour Division, which oversees the FMLA, outlines the various scenarios in which an employee is eligible to take leave. They include:

  • Birth of a child or to care for a newborn child within one year of birth
  • Placement or adoption of a foster child or to care for that child within one year of placement
  • Caring for an employee’s spouse, parent, or child with a serious medical condition
  • Diagnosis of a serious health condition that prevents the employee from performing essential job duties
  • Any qualifying situation related to the fact that a spouse, child, or parent is a military member on covered active duty or called to covered active duty status

 

An employee is also entitled to 26 work weeks of military caregiver leave within a 12-month period to care for a covered servicemember who is a spouse, child, parent, or next of kin, with a serious injury or illness.

 

When it’s medically necessary, employees may take FMLA leave intermittently — meaning in separate blocks of time for a single qualifying reason or on a reduced leave schedule — reducing the employee’s usual weekly or daily work schedule.

 

Employees who need to use FMLA leave are required to provide their employer with a 30-day advance notice — if it’s foreseeable and providing that notice is feasible.

 

For example, if the employee schedules a medical procedure in the next three months and knows they’ll need time away from the workplace — that is considered foreseeable and they should share notice 30 days ahead of time. Otherwise, it should be communicated to an employer as soon as possible in cases of emergency or unforeseen circumstances.

 

Occupation Protection

In addition to taking up to 12 weeks of leave, workers also have job protection under the FMLA. This protection means that when returning from leave — whether the time away was used consecutively or as intermittent leave — the employer must return the employee to the same job, or one that is equivalent.

 

If you can’t return the employee to the same job, a nearly identical job must meet the following criteria:

  • Offer the same shift or general work schedule, and be at a “geographically proximate worksite” (for example, one that does not involve a significant increase in commuting time or distance)
  • Consist of the same or substantially similar duties, responsibilities, and job status
  • Include the same general level of skill, effort, responsibility, and authority
  • Offer identical pay, including equivalent premium pay, overtime and bonus opportunities, profit-sharing, or other payments, and any unconditional pay increases that occurred during FMLA leave, and
  • Offer identical benefits (such as life insurance, health insurance, disability insurance, sick leave, vacation, educational benefits, pensions, etc.)

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What is a covered employer under FMLA?

Businesses that are governed by the FMLA include:

  • Any private-sector employer with 50 or more employees
  • Any public agency, including local, state, or federal government agencies, regardless of the number of employees
  • Any public or private elementary or secondary school, regardless of the number of employees

How do you manage FMLA as an employer?

So, how can you make sure that as an employer you’re abiding with the FMLA requirements? Here are some good rules of thumb to help simplify FMLA compliance:

  • Consistency: Be consistent in applying  all FMLA rules throughout your business.
  • Training: Human resources supervisors or managers should be provided with training about FMLA and it’s also important to ensure that they continue to stay up to date with its requirements.
  • Communication: Running any business successfully requires effective communication, including with regard to FMLA rules and requirements. Make sure everyone is on the same page; you, your workers, and your leadership team should know how communications and workflow will be handled when someone is taking FMLA-related leave.

Do employees have to provide medical certification for FMLA leave?

Employers can require certification from a health care professional documenting the health condition of the employee or their immediate family member. Keep in mind, however, that under the law, employers must allow the employee at least 15 calendar days to provide such certification. Additionally, it’s important to remember that an employee is not required to give you their medical records.

 

When employees return to work after an FMLA absence to handle their own injury or serious medical condition, an employer can also request a certification that the employee is able to safely resume work. But here too, there are rules around what you can ask about an employee’s health or disability.

 

If you do decide to require certification, be sure that your company’s policy is ADA compliant and applied uniformly to all “similarly situated employees who take leave for such conditions,” as required by the Department of Labor.

FMLA recordkeeping requirements for employers

There is also a recordkeeping component of the FMLA that it is important to understand and comply with. Covered employers must make, keep, and preserve FMLA records for at least three years — and make them available if the DOL requests access to them.

 

These records should include:

  • Basic payroll and identifying employee data such as:
    • Name, address, and occupation
    • Rate or basis of pay and terms of compensation
    • Daily and weekly hours worked each pay period
    • Additions to and deductions from wages
    • Total compensation paid
  • Dates FMLA leave is taken – which must be designated in the records as FMLA leave
  • Hours of FMLA leave used (if leave is taken in increments of less than a day)
  • Copies of any FMLA notices provided by an employee to the employer
  • Copies of any notices provided by the employer to its employees concerning the FMLA (includes any written requests for leave from the employee, as well as any required notice provided to the employee concerning FMLA leave)
  • Any documents, including electronic records, describing employee benefits or employer policies and practices regarding the taking of paid or unpaid leave
  • Premium payments for employee benefits
  • Records of any dispute between the employer and an employee regarding the designation of leave as FMLA leave (could include emails or other written statements regarding a disagreement on the designation of the employee’s FMLA leave request)

Employers who must follow FMLA guidelines are also required to maintain all records and documents relating to FMLA medical certifications and recertifications of employees — or their family members — in a secure and confidential manner.

 

This means you’ll need to store records in a way that meets the confidentiality requirements of the Americans with Disabilities Act (ADA) and, if applicable, the Genetic Information Nondiscrimination Act. According to the Job Accommodation Network (JAN), you can keep paper or digital files to stay compliant with the ADA, but be sure you follow any laws where you do business:

“Employers may keep and maintain employee information as hard copy and/or electronic records. If electronic records are kept, employers must comply with applicable federal, state, and local laws governing the electronic storage of employment records.

 

Information technology, human resources, and cyber security professionals should work collaboratively to implement adequate controls to limit access to and ensure the integrity, accuracy, and availability of electronic records.”

FMLA is just one piece of the puzzle

It’s important to note that employers are also able to create their own paid parental or medical leave policies to augment FMLA or PFML.

 

As you create these types of policies, take time to speak with your employees and identify the types of benefits they would appreciate most. It’s also a good idea to regularly review your company policies regarding leave and PTO to make sure they are still valuable. If you need help creating those policies for your business, here’s a great resource. And remember — always document these and other workplace policies in your employee handbook.

 

This article is for informational purposes only and should not be relied on for tax, legal, or accounting advice. You should consult your own tax, legal, and accounting advisors for formal consultation.

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Lillian Mirakhor is a Senior Marketing Associate at OnPay. Since graduating from the University of Georgia, she’s worked with small businesses in the tech and SaaS industries helping them boost their marketing efforts.