The FMLA: Stay in Compliance

Compliance is one of many hats that managers must wear.

That said, it isn’t easy. It can be confusing and overwhelming.

We have tried to make compliance easier by providing basic overviews of law that likely affect you and your business. In prior posts, we have discussed statutes like the Americans with Disabilities Act, the Foreign Corrupt Practices Act, and the Fair Labor Standards Act.

We are now moving on to discuss the Family Medical Leave Act (“FMLA”), another law that provides certain rights to your organization’s employees.

The Basics

The FMLA is a federal law that entitles some employees to take unpaid, job-protected leave for some family and medical reasons. Prior to the FMLA’s passage, it was common for employees to lose their jobs when they took off time from work to have a child or care for a child, spouse or parent who was seriously ill. Legislators, therefore, passed the FMLA in 1993 to solve these issues by creating a framework where an employee can take unpaid time off—for a certain period of time—to address specific family or medical issues.

As with any law, we must look at the details to see how it affects us and our organizations. Luckily, the U.S. Department of Labor provides some clear guidance that can help you determine how best to comply with the FMLA.

Coverage

The most prominent starting point is whether your organization and its employees are covered by the FMLA. A covered employer can be three different things. Private-sector employers with 50 or more employees in 20 or more workweeks in the current or preceding year (including joint employers or successors in interest to a covered employer) are covered. The next type of covered organization is a public agency—regardless of the number of employees and regardless of whether it is a local, state or federal government agency. The final covered organization is any public or private elementary or secondary school.

If you work at a covered organization, you then determine whether your organization’s employees receive FMLA coverage. An eligible employee is one who (1) works for a covered employer, (2) has worked for the employer for at least 12 months, (3) has at least 1,250 hours of service for the employer during the 12 month period immediately preceding the leave, and (4) works at a location where the employer has at least 50 employees within 75 miles. The 12 months of employment do not have to be consecutive, and there are special hours of service eligibility requirements for airline flight crew employees. 

Benefits For Covered Employees

If your organization and employees have FMLA coverage, you must then provide eligible employees with leave for a defined period. Eligible employees can take up to 12 workweeks of leave in a 12-month period for one of the following reasons.

• The birth of a child and to care for the child within one year of birth;
• The placement of a child for adoption or foster care and to care for the child within one year of placement;
• To care for the employee’s spouse, child, or parent with a serious health condition;
• A serious health condition which makes the employee unable to perform the essential functions of their job; or
• Any qualifying exigency arising out of the fact that a spouse, child, or parent is a covered military member on “covered active duty.”

Eligible employees may also take up to 26 weeks of leave during a single 12-month period to care for a covered servicemember with a serious injury or illness when the employee is the spouse, child, parent, or next of kin of the servicemember.

To go on leave, covered employees must comply with their employer’s traditional procedures of requesting leave. If the time off is foreseeable, the Department of Labor suggests at least 30 days notice. If not foreseeable, employees should alert their employers as soon as possible.

Compliance

Critically, you and your organization must first determine if you are a “covered organization.” If so, you must post a notice explaining rights and responsibilities under the FMLA, include information about the FMLA in employee handbooks, provide an employee (should they request leave) with notice about his or her eligibility and their FMLA rights, and notify employees whether leave is designated as FMLA leave and the amount of leave deducted from the employee’s entitlement.

The FMLA was designed to make life better for your employees, and you must do your part to ensure compliance. Failure to do so can lead to hefty fines. That said, there is plenty of guidance to help you do your part to follow the statute. If you have any further questions, we recommend that you speak with your organization’s in-house attorney and proceed from there.