A 2022 Guide to the Family and Medical Leave Act

The Family and Medical Leave Act (FMLA) has been around since 1993, but according to a 2021 survey, most managers don’t understand the basics of the federal law. Less than half of the 435 managers that participated in the study correctly:

• Identified the type of employers required to offer FMLA leave
• Named the benefits provided by the federal leave program
• Described how long employees can be out on FMLA leave

In a nutshell, the FMLA requires that covered employers offer 12 weeks of unpaid, job-protected leave over 12 months to eligible workers who have serious health conditions or a need to care for a family member with serious health conditions, according to “The Employer’s Guide to the FMLA,” a guide to the federal law issued by the U.S. Department of Labor. The FMLA is enforced by the Labor Department’s Wage and Hour Division (WHD).

Covered employers

Employers that must comply with the FMLA include:

• Private employers that employ 50 or more employees in 20 or more workweeks in the current or previous calendar year
• Public agencies, including local, state, and federal employers, regardless of how many people they employ
• Public and private elementary or secondary schools, regardless of how many people they employ

Eligible employees

Employees are not eligible for FMLA leave on the first day of employment; they have to achieve the required number of hours. Eligible employees are those who:

• Work for a covered employer
• Have worked 1,250 hours during the 12 months before the start of leave
• Work at a location where the employer has 50 or more employees within 75 miles
• Have worked for the employer for 12 months

The 12 months of employment is liberally construed and does not have to be not consecutive for the employee to qualify for FMLA leave. Employment within 7 years counts unless it meets certain conditions. This means that employees can add up their 12 months at a company, including seasonal work, over 7 years to meet the requirement.

Employees are not eligible for FMLA leave on the first day of employment; they have to achieve the required number of hours.

Part-time, seasonal employees can qualify for FMLA leave

Part-time, temporary and seasonal employees can attain eligibility for FMLA leave if they meet the 1,250 hours requirement. Employees can take FMLA leave on an intermittent or reduced schedule basis. This means an employee may take leave in small, separate blocks of time or by reducing the time normally worked each day or week.

Qualifying reasons for job-protected leave

A covered employer must grant an eligible employee up 12 workweeks of unpaid, job-protected leave in a 12-month period for one or more of the following reasons:

• For the birth of a son or daughter
• For the placement of a child for adoption or foster care
• To care for an immediate family member, including a spouse, child, or parent with a serious health condition
• To take medical leave when the employee is unable to work because of a serious health condition
• A qualifying need arising out of the employee’s spouse, child or parent on covered active duty or called to active-duty status

The FMLA also allows eligible employees to take up to 26 workweeks of unpaid, job-protected leave in a “single 12-month period” to care for a covered servicemember with a serious injury or illness.

What do I do when an employee provides notice of FMLA leave?

FMLA leave usually starts with a request from the employee. The notice may be oral or written. The worker does not have to specifically mention the FMLA or use the term “FMLA leave.” When possible, the employee must also indicate when and how much leave they need. Although the employee must provide enough information for the employer to know that the leave may be covered by the FMLA, there have been several instances in which courts held the employer at fault for not recognizing an employee's FMLA leave request. The Seventh Circuit ruled in 2019 that a school district had sufficient notice of an employee’s need for FMLA leave after she repeatedly told her supervisor about her ailments, which included “uncontrollable crying” and showing up late for work because she couldn't get out of bed. The appeals court said the school district failed to provide the woman with notice or information about her right to take FMLA leave. In so ruling, the court rejected the employer’s argument that she had not provided enough notice. In another instance, the 11^th Circuit ruled that a hospital failed to meet its responsibilities under the FMLA when it provided workers' compensation benefits to a housekeeper who injured her knee on the job. The court said the hospital should have also advised the employee of her rights under the FMLA. The court also noted that the hospital failed to give the employee the two FMLA notices she was owed.

Setting a leave policy

Once an employee provides notice of the need for FMLA leave, the responsibility shifts to the employer.

Employers can set a formal policy for requesting leave and require employees to comply except in situation where such compliance is impossible. In situations where an employee needs emergency medical care, they might immediately qualify for FMLA leave. Once an employee provides notice of the need for FMLA leave, the responsibility shifts to the employer.

FMLA due to medical certification

When an employee requests FMLA leave due to his or her own serious health condition or a covered family member’s serious health condition, the employer may require certification from a healthcare provider that supports the need for the leave. If certification is requested, the employer must notify the employee of the process and complete the certification within 15 calendar days. If the certification is incomplete or insufficient, the employer must state in writing what additional information is necessary to make the certification complete and sufficient.

FMLA leave designation

The employer is responsible for designating leave as FMLA-qualifying and providing a “Designation Notice” to the employee within 5 business days of the employer having enough information to determine that the employee’s requested leave qualifies. The notice informs the employee that the requested leave will be designated as FMLA leave and sets out the requirements that apply while the employee is on leave.

D0 I have to maintain health benefits during FMLA leave?

Once an employee is on leave, the employer is legally obligated to maintain the health benefits for employees who are on FMLA leave. The employee, however, must continue to make the normal contribution to the cost of the health insurance premiums.

Do I have to restore the employee to the same job?

Employers have to restore the returning employee to their original job or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment. An employer cannot transfer the returning employee to a different job in an attempt to discourage the worker from taking leave or otherwise create a hardship for the employee.

Employer FMLA challenges

One of the areas of FMLA leave that poses a significant challenge for employers is recognizing a request for leave. In many instances, the need for such time off can appear to be subtle. For example, multiple absences by an employee who misses work because of chronic back pain can qualify for leave under the federal law. To remedy this, employers should train managers and supervisors how to recognize FMLA requests. "Providing FMLA training regularly helps to make sure those responsible for implementing the FMLA are up-to-date on the requirements of the law and the employer's policy, procedures and practices," DOL said in the 76-page employer guide.

Why FMLA HR training is important

FMLA mistakes can be costly for employers. There’s no shortage of lawsuits filed under the federal leave act. Periodic training for the employees involved in administering the law is important in avoiding legal liability and costly settlements.