What Every Employer Needs to Know About FMLA

by | Nov 19, 2021 | Employment Law

Family Medical Leave Act (FMLA) Basics: What Every Employer Needs to Know

For many employers, questions concerning what to do when an employee requests time off for a medical condition or to care for a family member, are a source of anxiety. There are a lot of misconceptions about what the Family Medical Leave Act (FMLA) does and does not require, and this can make matters worse. This does not need to be the case. While situations should be analyzed on a case-by-case basis, this article addresses some basic facts you should know about this law.

Not every employer is covered.

A private-sector employer is covered by the FMLA if it employs 50 or more employees in 20 or more workweeks in the current or previous calendar year. For this analysis, an employee is considered to be employed each working day of the calendar week if they worked any portion of that week. Also, the workweeks do not need to be consecutive. If your business falls below this threshold, the FMLA most likely does not apply to you. Conversely, once an employer meets the requirement for FMLA coverage, the employer is a “covered employer” and will remain covered as long as it employs 50 or more employees in 20 or more workweeks in either the current calendar year or in the previous calendar year.

The FMLA does not apply to every employee.

Even if you are a “covered employer,” you need to determine if the Employee is entitled to the benefits of the FMLA. The eligibility requirements are the same for all employees, regardless of reason for the leave request. There are four basic criteria:

  • the employee works for a covered employer;
  • has worked for at least 12 months as of the date the FMLA leave is to start;
  • has at least 1,250 hours of service for the employer during the 12-month period immediately before the date the FMLA is to start; and
  • works at a location where the employer employs at least 50 people within 75 miles of that worksite (as of the date of the notice of the need for the leave).

Their needs to be a qualifying reason for the leave.

Just because an employer is covered, and an employee is eligible, there still needs to be a qualifying reason for the leave. In general, employees can take FMLA leave for the following qualifying reasons:

  • A serious health condition that makes the employee unable to perform the functions of his or job;
  • To care for the employee’s spouse, child, or parent who has a serious health condition;
  • To bond with a new child;
  • The placement with the employee of a child for adoption or foster care and to bond with the newly placed child;
  • Any qualifying exigency arising from the employee’s spouse, child, parent is a member of the military on covered active duty or call to covered active-duty status.

Employers can ask for medical certification

Under the FMLA, Employers have the right to request medical certification from the health care provider treating the employee or family member, in order to verify the need for the leave.

Employees can take up to 12 weeks per year for most types of leave.

While there is an exception for employees who need time off to care for a family member who suffers an injury or illness while on military duty, (26-weeks in a 12-month period), most covered leaves are limited to 12 weeks. However, employees don’t have to use all of their leave at once. Intermittent leave, even just a few days or hours at a time, is often available under the act.

FMLA is unpaid.

FMLA does not require employers to offer paid leave while an employee is on FMLA. That said, under some circumstances employees may use paid accrued leave (vacation or sick days) to get paid while they are on FMLA.

Employees must meet notice requirements.

If an employee’s need for FMLA leave is foreseeable, the employee must give 30-days’ notice. If not, the employee is still required to give as much notice as is practicable.

You must reinstate the employee to the same or equivalent position.

When an employee returns from FMLA leave, he or she must be restored to the same job that the employee held when the leave began or to an “equivalent job.” The employee is not guaranteed the actual job he or she held prior to the leave. An “equivalent job” means a job that is similar to the original job in terms of pay, benefits, and other employment terms and conditions.

Hopefully this primer provides some useful information in navigating FMLA request. As always, please contact us with specific inquiries.

You must have an active subscription and login to view this content.