Published on March 3, 2014
GUIDE TO FMLA
WHAT IS FMLA? The Family and Medical Leave Act (FMLA) provides up to 12 weeks of unpaid leave per year for family and medical reasons to eligible employees at employers with 50 or more employees. Under FMLA, employees are entitled to return to their same or an equivalent job at the end of their FMLA leave and retain their group health insurance coverage. FMLA also provides certain military family leave entitlements for eligible employees. ELIGIBILITY In order to be eligible to take leave under FMLA, an employee must: WORK FOR AN EMPLOYER COVERED UNDER FMLA HAVE WORKED 1,250 HOURS DURING THE 12 MONTHS PRIOR TO THE START OF LEAVE WORK AT A LOCATION WHERE THE EMPLOYER HAS 50 OR MORE EMPLOYEES WITHIN A 75-MILE RADIUS HAVE WORKED FOR THE EMPLOYER FOR 12 MONTHS, WHICH DO NOT HAVE TO BE CONSECUTIVE With regard to consecutive employment, generally, only employment in the last seven (7) years is counted unless there is a break in service due to an employee’s military obligations or by a collective bargaining/other written agreement.
According to the Department of Labor (DOL), FMLA must be granted to eligible employees in a full block of time or intermittently for the following qualifying reasons: QUALIFYING FACTORS & SERIOUS HEALTH CONDITIONS The birth of a child and to care for the newborn child within one year of birth. The placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement. To care for the employee’s spouse, child, or parent who has a serious health condition. A serious health condition that makes the employee unable to perform the essential functions of his or her job; serious health conditions can include: • • • • • • inpatient care absence plus treatment pregnancy and prenatal care chronic conditions requiring treatment permanent/long term conditions requiring supervision conditions that require multiple treatments (non-chronic) For qualifying exigencies arising out of the fact that the employee’s spouse, son, daughter, or parent is on covered active duty or call to covered active duty status as a member of the National Guard, Reserves, or Regular Armed Forces. Employees may take FMLA leave for reasons related to certain military deployments of their family members. Additionally, they may take up to 26 weeks of FMLA leave in a single 12-month period to care for a covered service member with a serious injury or illness if the eligible employee is the service member’s spouse, son, daughter, parent, or next of kin.
NOTICE REQUIREMENTS There are several notice requirements under FMLA that both employers and employees must follow to stay compliant with the law. EMPLOYERS EMPLOYEES • Must provide an eligibility notice (“Notice of Eligibility and Rights & Responsibilities”) to notify the employee of their eligibility to take FMLA leave within 5 business days and must include a) if the employee is eligible for FMLA or b) if not eligible for FMLA, why they are not eligible. • Are required to provide 30-day advanced notice of their need to take FMLA leave (if the need is foreseeable and notice is practicable). • Must provide a designation notice (“Designation Notice”) to notify the employee, in writing, regarding whether leave will be designated and counted as FMLA leave within 5 business days. • Are required to provide notice as soon as practicable – either same or next business day – when leave is not foreseeable due to lack of knowledge, change in circumstance, or medical emergency. • Must comply with the employer’s usual notice and procedural requirements when they request FMLA leave. • Must provide sufficient information for the employer to determine whether FMLA may apply to their request. • Must comply with the employer’s call-in procedures unless unusual circumstances prevent them from doing so, in which case they need to call in as soon as practicable.
CERTIFICATION PROCESS Employers may require that FMLA leave is supported with certification issued by a health care provider, but they need to provide employees with at least 15 calendar days to obtain the medical certification. The following certification forms may be used: • Certification of Health Care Provider for Employee's Serious Health Condition • Certification of Health Care Provider for Family Member's Serious Health Condition • Certification of Qualifying Exigency for Military Family Leave • Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave If the certification is incomplete or contains insufficient information, employers need to advise employees, state in writing what information is needed to complete the certification, and provide employees with at least seven (7) calendar days to complete the certification “unless seven days is not practicable under particular circumstances despite the employee’s diligent good faith efforts,” according to the DOL. Appropriate representatives at employers (not including supervisors) can contact a health care provider to authenticate or clarify the certification RECERTIFICATION Employers may require recertification for the leave based on the following requirements: Recertification may occur no more often than every 30 days in connection with the absence unless the condition lasts for more than 30 days. For conditions that are certified with a minimum duration of more than 30 days, employers must wait to recertify them until a specified period has passed. There are three exceptions. Employers may request recertification every six months in connection pertaining to information within the certification and not any additional information beyond the form, if needed. However, if a complete and sufficient certification has been supplied by an employee, they may not request additional information. Additionally, employers, at their own expense and including reasonable travel expenses, can require second or third medical opinions pertaining to the leave if they have reason to doubt the certification’s validity. There are a few requirements pertaining to second and third opinions, specifically: • Employers may choose the health care provider to provide a second opinion. • Health care providers which employers use on a regular basis should not be used for certifications. • If the second opinion differs from the first certification, employers can require a third certification. • The third certification is final and is required to be used by the employer. with an absence by an employee. Employers can also request a new certification for each year in which the medical condition lasts longer than one year. Additionally, employers may also allow recertification in less than 30 days if… • the employee requests an extension of leave • the circumstances in the previous certification changed significantly • the employer receives information that casts doubt on an employee’s stated reason for absence or continued validity of the certification
JOB RESTORATION INTERMITTENT LEAVE Employees who use FMLA must be restored to their original job or a job with equivalent pay, benefits, and other terms of conditions of employment. Employees cannot incur a loss of any employment benefit as a result of using FMLA. In addition, employees’ absences cannot be counted against them. Employees are allowed to take intermittent FMLA leave via two options a) separate blocks of time for a single qualifying reason or b) on a reduced weekly or daily work schedule when medically necessary. Employers can have a uniformly applied policy or practice that requires all employees who take leave to submit a certification from the employee’s health care provider which states that they are able to resume work. An employer may also require a fitness-for-duty certification to evaluate whether the employee has the ability to perform the essential functions of the position. This certification may be required up to once every 30 days for an employee taking intermittent FMLA leave if there are reasonable safety concerns regarding their ability to perform the essential job functions. Employees may be delayed or denied job restoration if they do not provide certification. An employer may deny job restoration to a “key employee,” who according to the DOL, is a “salaried, FMLA-eligible employee who is among the highest paid 10 percent of all employees employed by the employer.” An employer must determine if restoring the employee to their job will result in “substantial and grievous economic injury” to the operations. There are several other rules pertaining to this requirement. Employers have the right to ask employees to make a reasonable effort to schedule their intermittent leave “so as to not disrupt the employer’s operations, subject to the approval of the employee’s health care provider.” They also have the right to transfer employees to a temporary alternative job with equivalent pay and benefits if the other job better accommodates intermittent leave. MILITARY LEAVE Finally, FMLA provides that an eligible employee is entitled to a combined total of 26 workweeks of military caregiver leave. The eligible employee is entitled to take another 26 workweeks of leave in a different single 12 months period to care for another service member. In addition to their military caregiver leave the eligible employee may take leave for any other FMLA qualifying reason in the same single 12 month period. A son or daughter is a covered service member’s biological child, adopted child, foster child, stepchild, or legal ward. Additionally, a son or daughter is covered under FMLA regardless of their age. A parent of a covered service member is a biological father/mother, adoptive father/ mother, step father/mother, or foster father/mother. This provision does not include parents “in law.”
CALCULATING & TRACKING LEAVE FMLA leave can be taken in numerous increments: whole weeks, single days, hours, and even less than an hour. Employers are required to allow employees to use FMLA leave in the smallest increment of time they allow for other forms of leave, as long as it is no more than one hour. Employers may allow FMLA leave in shorter increments than used for other forms of leave, but no work can be performed during a period of time counted as FMLA. In addition, if employers allow leave to be used in different increments during specific times of the day, they may use the same increment of leave at those specific times of the day. The DOL lays out specific instructions for calculating FMLA leave: “Only the amount of leave actually taken may be counted against an employee’s FMLA leave entitlement. Where an employee takes FMLA leave for less than a full workweek, the amount of FMLA leave used is determined as a proportion of the employee’s actual workweek. The amount of FMLA leave taken is divided by the number of hours the employee would have worked if the employee had not taken leave of any kind (including FMLA leave) to determine the proportion of the FMLA workweek used. For example, an employee who normally works 30 hours a week but works only 20 hours in a week because of FMLA leave would use one-third of a week of FMLA leave. An employer may convert the FMLA leave usage into hours so long as it fairly reflects the employee’s actual workweek.” Additionally, employers may require or request that employees use any accrued paid leave such as PTO, sick time, vacation time, or personal time for some or all of the FMLA leave. Finally, employers need to calculate and track FMLA leave. A 12-month period can be calculated in one of four ways: • Calendar year • Any fixed 12-month leave (fiscal year, year required by State law or a year starting on the employee’s anniversary date) • 12-month period measured forward from the date any employee’s first FMLA leave begins • A rolling 12-month period measured backward from the date an employee uses FMLA leave
YOUR RESPONSIBILITIES AS AN EMPLOYER As an employer, there are a few basic obligations and responsibilities that your organization must take to ensure that it is compliant with FMLA: • Have a complete FMLA policy in your handbook. • Post FMLA notice which describes FMLA’s provisions and make it is accessible to all employees. • Follow all notice and communication requirements. • Establish a certification and recertification process. • Inform employees in writing to whether or not their leave with be designated as FMLA protected and the amount of leave counted against the employee’s leave entitlement. • Provide instructions for making arrangements for any payments of health benefits that the employee must make during their leave. • Restore the employee to the same or equivalent position with benefits. • Provide notice of who is a “key” employee and what that could mean. • Be responsive to the questions that employees have regarding their FMLA leave. • Establish a procedure for tracking employee FMLA leave. • Maintain employer provided group health insurance for the employee. ADDITIONAL RESOURCES FMLA Services (Source: ERC Preferred Partner, CareWorks USA) FMLA Frequently Asked Questions (Source: DOL) Family and Medical Leave Act: Overview, Fact Sheets, Forms & Notices (Source: DOL) FMLA Advisor (Source: DOL) Family and Medical Leave Act Poster (Source: DOL) FMLA Employee Guide (Source: DOL) FMLA Employee Military Leave Guide (Source: DOL) Please note that by providing you with research information that may be contained in this article, ERC is not providing a qualified legal opinion. As such, research information that ERC provides to its members should not be relied upon or considered a substitute for legal advice. The information that we provide is for general employer use and not necessarily for individual application.
FMLA RESOURCES AVAILABLE TO ERC MEMBERS Salary and Benefits Data New ERC members receive free access to all current ERC compensation and benefits surveys, including our Policies and Benefits Survey with information on time off policies. HR Help Desk ERC members have unlimited access to ERC’s HR Help Desk, a team of HR professionals that can help answer tough questions about topics like FMLA. Online HR Tools Access a full suite of online tools that includes model documents, sample policies, legal updates and trends and more. Networking Ask other ERC members questions and opinions through our connectwERC program, or join other HR professionals in person for our netwERC groups. Cost Savings ERC members have access to a group of over 30 Preferred Partners that offer business cost savings on HR and business products and services, including outsourced FMLA administration Get Started Today! Contact Tricia Smith, Membership Manager to become an ERC member and get unlimited access to the resources above. Plus, as a new member you’ll receive FREE access to all ERC Surveys (including our popular Salary & Wage Surveys)…a value of over $5,000! Contact Tricia at 440-947-1294 or tsmith@yourERC.com ...or, visit our website to take a Membership Tour.
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