The Family Medical Leave Act (FMLA)
This week in Human Resources Today!
As a small, mid-market business, or large-market employer, are you accurately and effectively managing the Family Medical Leave Act and requests that come across your desk?
As employee, you never know when you’ll need to take an FMLA or see a professional for care. Stay on top of encouraging employees to be healthy.
Understanding the Family and Medical Leave Act (FMLA)
This week in Human Resources Today, we are exploring the Family and Medical Leave Act (FMLA)—a comprehensive, yet often misunderstood, federal law. FMLA applies to both private and public sector employers with 50 or more employees, and it continues to raise important compliance questions for HR professionals.
Recently, while browsing a Reddit discussion, I came across a user who was confused about whether there are different “types” of FMLA. The individual explained that his wife was using FMLA for her own health condition as well as to care for a family member, and he wondered if these were separate categories of leave. This is a great reminder that FMLA is one law with multiple qualifying reasons for leave, not separate programs. Let’s take a closer look.
Qualifying Reasons for FMLA Leave
Under the FMLA, eligible employees may take job-protected leave for the following circumstances:
A serious health condition that makes the employee unable to perform essential job functions (including incapacity due to pregnancy and prenatal medical care).
The birth of a child and bonding with the newborn within one year of birth.
The placement of a child for adoption or foster care, and bonding within one year of placement.
To care for a spouse, son, daughter, or parent with a serious health condition (including incapacity due to pregnancy and prenatal care).
Any qualifying military exigency related to the employee’s spouse, son, daughter, or parent being on, or called to, covered active duty.
Employees may use up to 12 workweeks of FMLA leave within a 12-month period for one or more of these reasons. Importantly, once an employer is put on notice that an employee may need leave, the employer is responsible for verifying eligibility and designating the leave appropriately.
Family Members Covered
FMLA defines covered family members for caregiving leave as:
Spouse
Parent
Son or Daughter
Employee Eligibility Requirements
Not all employees automatically qualify for FMLA. To be eligible, an employee must:
Work for a covered employer;
Have completed at least 12 months of employment with the employer;
Have worked at least 1,250 hours during the 12 months preceding the start of leave; and
Work at a location where the employer has 50 or more employees within 75 miles.
Documentation and Compliance
Employers may require employees to provide documentation supporting the need for FMLA leave. Proper administration, accurate recordkeeping, and consistent application of policies are essential to remain compliant with federal law while also supporting employees during critical life events.
Did she forget to complete her FMLA documentation?
In the worst scenarios, I have been the newly hired HR Manager and visited by managers on day two, asking me to research an absent employee. The Manager speculated that the employee might be on some leave but did not know. The employee thought they were on a leave of absence and had exceeded their 12 weeks. It's an absolute FMLA nightmare but fun to clean up (at least for me). FMLA is one of those acts (because it concerns health information about the employee) that must be administered with care and ease. Each FMLA case must be well documented, even when an employee has to miss work or, albeit, be hospitalized and the timing is off. It is the responsibility of the employee to notify the employer of their need to request FMLA.
After the employer has verified the employee’s eligibility, the employer must:
Provide an Eligibility Notice to the employee, either orally or in writing, informing the employee whether he or she is eligible for FMLA leave; - If the employer determines that the employee is not eligible for FMLA leave, it must state at least one reason why the employee is not eligible.
Provide the Eligibility Notice to the employee within five business days of the initial request for leave or of learning that an employee’s leave may be for an FMLA-qualifying reason unless there are extenuating circumstances;
Provide the Eligibility Notice the first time the employee takes leave for an FMLA-qualifying reason in the designated 12-month leave year and
If a significant portion of the employer’s workforce is not literate in English, provide the Eligibility Notice in a language in which employees are literate.
When administering FMLA, it’s a good practice to utilize form WH-381, the Notice of Eligibility, Rights, and Responsibility form, directly from the Wage and Hour Division of the US Department of Labor. This document is great because it outlines all the information the employer, employee, and healthcare provider will need to complete the next form. When completing WH-381, the employer needs to be very meticulous about documenting what goes on it, as WH-381 and all other FMLA forms will need to be maintained in the employee’s medical file (which should and must be separate from the employee’s main personnel file. If your HR staff or consultant manages this process and has their own office, having the FMLA documents in a reachable place might be a good idea until the employee is fully approved to be on FMLA. Keep in mind that the Health Insurance Portability Privacy Act applies here, too, and this information must be secured and confidential.
Next, the employer is responsible for giving the employee the FMLA Certification (WH-380-E) form and any internal LOA application required by your organization. It might seem like a lot of documentation, but it’s a good idea to have your Leave of Absence Application that covers all Leaves of Absence that your Employee Handbook discusses along with their respective processes. Employers may not request certification for leave to bond with a healthy newborn child or a child placed for adoption or foster care. However, employers may request documentation to confirm the family relationship. Remember that although the act grants employers this authorization, it doesn’t mean you should. Whatever route you take on this, it must be consistent. The clock starts now! The employee must provide the requested medical certification within 15 calendar days after an employer’s request, unless it is not feasible under the particular circumstances to do so despite the employee’s good faith efforts or if the employer permits more than 15 calendar days to return the requested certification. W
Although the FMLA requires that an employee’s health insurance continue while on leave, if the employee has financially earned or accrued PTO or Vacation, the employer can require it to be run concurrently with FMLA to satisfy the employee’s payroll medical deductions. WH-380-E is divided into two sections (Employer and Healthcare provider). This is where you, the employer, can fully understand what is going on with the employee, as it must be signed by a qualified healthcare provider. I can’t stress enough how this and other FMLA documents must be kept confidential. Once form WH-380-E has been returned to the organization, the employer must review it accordingly. Under FMLA, the employer can not ask for more information than what’s provided by the healthcare provider.
The employer must also ensure that the Certification form is sufficient and complete. Employers should review the certification for the following:
the certifying health condition
the provider’s notes
the providers signature
recovery and or time off period and the noted dates
FMLA Administration
Ensure you are documenting along all processes of the FMLA.
For the purposes of FMLA administration, an approved FMLA event can not be merged with another qualifying FMLA in the same FMLA year. Eligible employees get a max of 12 weeks.
The only modification allowed under FMLA would be the conversion from twelve consecutive weeks to intermittent FMLA when the employee feels better or has reached a point where they can perform some duties and can return and utilize the remainder of their FMLA status intermittently.
If the employee elects to convert the FMLA into intermittent FMLA, this should be noted on the application, final forms, and your Company’s designated HRIS. If questioned or audited, all systems and documents should match and be consistent.
Final Notes
It's a good idea to track intermittent FMLA, as this is when time is deducted, like a vacation only non-paid. Remember that if the employee is being paid, it would be through your company’s benefits or concurrent PTO. Either manually track hours or days off or program your HRIS to include a non-paid Intermittent entitlement. There must be a communication system in place for the person handling payroll and the management.
Do you need FMLA administrative support?
MDT can administratively manage your company’s FMLA and advise on various FMLA matters.
