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Updated: December 4, 2022
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.
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.
To take leave under the FMLA, an employee must first meet all of the following qualifications:
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.
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:
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.
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:
A growing number of states and cities have passed Paid Family or Medical Leave (PFML) laws. Unlike FMLA, the time taken for PFML is compensated, and states can determine the length of leave available for employees to take, under what circumstances an employee is eligible, and the benefit amounts. Depending on the state, these programs are funded by employers, employees, or both who contribute to a paid leave fund.
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Businesses that are governed by the FMLA include:
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:
An increasing number of states are passing laws to ensure that workers receive pay if they take time off to care for a sick family member or a newborn child. Learn more about these paid family leave states for 2023, as well as where else legislation has been proposed, with a map and table to help you find the information you need.
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.
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:
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.”
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.