Guidelines for FMLA
FMLA – Family and Medical Leave Act
The FMLA (Family and Medical Leave Act of 1993) is a Federal law, which entitles “eligible employees” of “covered employers” to take unpaid, job-protected leave for specified family and medical reasons, with continuation of group health insurance coverage, under the same terms and conditions as if the employee had not taken leave.
“Covered employers” must:
- be a private-sector employer, with 50 or more employees in 20 or more workweeks in the current or preceding calendar year, including a joint employer or successor in interest to a covered employer;
- be a public agency, including a local, state, or Federal government agency, regardless of the number of employees it employs; or
- be a public or private elementary or secondary school, regardless of the number of employees it employs.
“Eligible employees” must:
- be employed by a “covered employer” within a 75-mile radius of his or her worksite, or a public agency (including schools and state, local, and federal employers); and
- have worked for that employer for at least 12 months (not necessarily consecutive) and at least 1,250 hours within the last 12 months.
Note: There are special hours rules for certain airline employees.
The Federal FMLA does not apply to:
- employees employed by private-sector businesses with fewer than 50 employees;
- part-time employees who have worked fewer than 1,250 hours within the 12 months preceding the leave and a paid vacation;
- employees who need time off to care for seriously ill elderly relatives (other than parents) or pets;
- employees who need time off to recover from short-term or common illness (like a cold), or to care for a family member with a short-term illness;
- elected officials and their personal staff members; or
- employees who need time off for routine medical care, such as check-ups.
- 12 unpaid workweeks of leave in a 12-month period for:
- the birth of a child and to care for the newborn child within 1 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 1 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; or
- any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty;” OR
- 26 unpaid workweeks of leave during a single 12-month period to care for a covered servicemember with a serious injury or illness, if the eligible employee is the servicemember’s spouse, son, daughter, parent, or next of kin (military caregiver leave).
Note: Son/daughter has been clarified by the Department of Labor to mean a child under the age of 18 or a child over the age of 18 with a mental or physical disability as defined by the American Disabilities Act, which excludes among other conditions, pregnancy and post-partum recovery from childbirth.
Note: Under some circumstances, employees may take FMLA leave on an intermittent or reduced schedule basis. That means an employee may take leave in separate blocks of time or by reducing the time he or she works each day or week for a single qualifying reason. Such examples would be:
- When leave is needed for planned medical treatment that is intermittent, the employee must make a reasonable effort to schedule treatment so as not to unduly disrupt the employer’s operations.
- If FMLA leave is for the birth, adoption, or foster placement of a child, use of intermittent or reduced schedule leave requires the employer’s approval.
“Covered employers” must:
- Post a notice explaining rights and responsibilities under the FMLA (and may be subject to a civil money penalty of up to $110 for willful failure to post);
- Include information about the FMLA in their employee handbooks or provide information to new employees upon hire;
- Provide the employee with notice concerning his or her eligibility for FMLA leave and his or her rights and responsibilities under the FMLA, when an employee requests FMLA leave or the employer acquires knowledge that leave may be for a FMLA-qualifying reason;
- Notify the employee whether leave is designated as FMLA leave and the amount of leave that will be deducted from the employee’s FMLA entitlement;
- Not count the employee’s use of FMLA leave against a “no-fault” attendance policy;
- Provide the same group health insurance benefits, including employer contributions to premiums, that would exist if the employee were not on leave;
- Protect employee benefits while on leave. An employee is entitled to reinstatement of all benefits to which the employee was entitled before going on leave.
- Restore the employee to the same position upon return to work. If the same position is unavailable, the employer must provide the employee with a position that is substantially equal in pay, benefits, and responsibility; and
“Eligible employees” must:
- Comply with their employer’s usual and customary requirements for requesting leave and provide enough information for their employer to reasonably determine whether the FMLA may apply to the leave request;
- Request leave 30 days in advance when the need for leave is foreseeable. When the need for leave is foreseeable less than 30 days in advance or is unforeseeable, employees must provide notice as soon as possible and practicable under the circumstances;
- Specifically reference either the qualifying reason for leave or the need for FMLA leave if he or she requests additional leave for the same qualifying reason as the initial request. When seeking leave for a FMLA-qualifying reason for the first time, the employee need not expressly assert FMLA rights or even mention the FMLA; and
- Provide supporting certification of the leave from a healthcare provider, if FMLA leave is due to his or her own serious health condition or covered family member’s serious health condition, and requested by the employer. In addition, an employer may require a second or third medical opinion and periodic recertifications (at the employer’s expense).
OTHER PROVISIONS & IMPORTANT NOTES
Under certain conditions, employees may choose, or employers may require employees, to “substitute” (run concurrently) accrued paid leave, such as sick or vacation leave, to cover some or all of the FMLA leave period. An employee’s ability to substitute accrued paid leave is determined by the terms and conditions of the employer’s normal leave policy.
The extensive standing laws and amendments to the FMLA with regard to military personnel and their families vary greatly from the general guidelines within this outline. I urge all readers to NOT use the information contained herein for military personnel and their families. For example, there exists extended protection to next of kin and adult children, different medical certification requirements and the “single 12-month period” for military caregiver leave is different from the 12-month period used for other FMLA leave reasons.
Special rules apply to employees of local education agencies. Generally, these rules apply to intermittent or reduced schedule FMLA leave or the taking of FMLA leave near the end of a school term.
Salaried executive, administrative, and professional employees of “covered employers” who meet the Fair Labor Standards Act (FLSA) criteria for exemption from minimum wage and overtime under the FLSA regulations, 29 CFR Part 541, do not lose their FLSA-exempt status by using any unpaid FMLA leave. This special exception to the “salary basis” requirements for FLSA’s exemption extends only to an eligible employee’s use of FMLA leave.
The United States Department of Labor’s Wage and Hour Division
Exception: Many Federal and certain congressional employees are also covered by the law, but are subject to the jurisdiction of the U.S. Office of Personnel Management or Congress.
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