Family and Medical Leave Act (FMLA)
Family and Medical Leave Act (FMLA) is a piece of federal legislation that guarantees at least 12 workweeks of unpaid leave to eligible employees. The weeks of leave granted by FMLA do not carry any risk of termination. In addition to being free of any risk of termination, FMLA allows the employee on leave to retain access to any health benefits that they would normally have during regular periods of active employment.
FMLA can appear complex at a glance, but the fine details regarding your liabilities and privileges while on leave can be broken down into fairly simple guidelines.
In order to be considered eligible for FMLA, you will need to meet certain qualifications. The necessary qualifications for FMLA eligibility apply to every kind of public agency, including the following:
- Local employers
- Federal agencies
- State agencies
There are certain special conditions regarding FMLA eligibility for employees who work for private businesses. The only private business employees that FMLA applies to are those who are working under employers who have consistently employed at least 50 employees for at least 20 workweeks or more, during the previous year or the current year.
Determining your own Family Medical Leave Act FMLA eligibility
The following qualifications can be referenced to determine whether or not you are eligible for FMLA leave:
- You must be employed by an agency or private business that FMLA applies to
- You must have worked for your current employer for at least 12 months
- In the 12 months that you have worked for your current employer, you must have logged in a minimum of 1250 hours
- The location at which your job takes place must have at least 50 employees (or be located with 75 miles of said location)
Conditions for requesting Family Medical Leave Act FMLA
In addition to meeting the base qualifications, there must also be certain circumstances met in order for an FMLA request to be approved. The conditions are as follows:
- Medical complications or conditions preventing the employee from performing their job up to standard
- A serious medical condition or disability that prevents an immediate family member of the employee from being able to care for themselves
- The birth of the employee’s child and/or the time required to provide thorough care for the newborn in the days following its birth
- The placement and/or care of a newly adopted child or a child from foster care
Certain special circumstances that aren’t included on the aforementioned list, but are of an equivalent urgency, might be considered “qualifying exigencies”. Qualifying exigencies may directly involve a child, spouse, or a parent that is either on active duty or has been called for active duty (Active duty must be for the Reserve or National Guard).
Specific FMLA Regulations in regards to birth and bonding
The FMLA leave requested for bonding with a newborn child (or an adopted/foster child) must be concluded within one calendar year following either the birth or placement. The allotted intermittent FMLA leave hours for birth and bonding may be determined at the discretion of the employer. Employees are entitled to intermittent FMLA hours in the event that their child has a serious health condition that constitutes a medical necessity for the parent to provide direct care.
Specific policies regarding intermittent leave permission
An employee may be granted FMLA leave on an intermittent basis if it’s determined medically necessary. The employee may be permitted to disperse their allotted time over blocks of time, simply cutting down their usual regular work schedule during the week, instead of taking all of their FMLA leave hours all at once.
In regard to birth and bonding with a newborn child or a newly adopted child, intermittent time may only be granted at the discretion of the employer; as per usual protocol, the birthing and bonding must take place and conclude within 12 hours of the date or birth or placement.
In order to assure that the intermittent time is not disrupted, the employee must thoroughly work out a detailed intermittent schedule with the employer before the intermittent time is allotted. The employee’s health care provider needs to sign off on the intermittent time in order to verify that it is upheld with maximum compliance to the agreement.
In the event that medically-mandated intermittent FMLA leave cannot be given with the employee remaining capable of performing their duties as required, then the employer may elect to transfer the employee to an alternative job that offers the same benefits and salary as the original position. If transferred to an alternative job, the permitted periods of leave must be more accommodating than the permitted periods for leave for the employee’s original job.
Specification of hours applicable towards FMLA eligibility consideration
The 1250 hours that must be logged in to verify the employee’s eligibility for FMLA leave must have been spent actively working for the employee. Unless explicitly appealed for, no. of the hours spent during paid or unpaid leave will are required to be counted towards consideration of whether or not an employee should be considered for FMLA.
Applying paid leave hours to Family Medical Leave Act FMLA hours
Under the FMLA’s regulations, only unpaid leave is required. There is, however, federal permission for employers to require (or employees to choose) to use any accrued paid sick leave, vacation leave, or sick leave for a portion or the entirety of the FMLA leave hours. To apply paid leave to the normally unpaid FMLA leave, the employee must comply with the employer’s usual guidelines for paid leave. Even though FMLA only requires unpaid leave, paid leave substitutions during FMLA leave are still under FMLA protection.
Revisions to the FMLA definition of spouse
On the 23rd of February, the U.S. Department of Labor’s Wage and Hour Division enacted a revision to the FMLA’s 1933 definition of spouse. The revision was made in accordance to the Supreme Court’s decision regarding the case of United States v. Windsor.
At the conclusion of United States v. Windsor, it was determined that Section 3 of the Defense of Marriage Act (DOMA) was unconstitutional. Because of Section 3 being found unconstitutional, a Final Rule was announced that altered the definition of spouse to also include members of the same sex.
As specified by the 1993 Final Rule, employees in same-sex marriage are entitled to the same rights to take FMLA leave to care for their spouses and family members as an employee in heterosexual marriages.
FMLA specifications for qualifying serious health conditions
Under FMLA guidelines, a serious health condition is specified by illnesses, injuries, impairment, or a physical/mental impairment that requires frequent care by a professional health care provider in order for the affected person to function.
In order to ascertain whether or not serious health condition can be qualified as such, FMLA regulations require specific objective tests to determine the severity of impairment caused by the condition. Generally, a health condition is considered serious enough for an employee or an immediate family member of the employee to warrant FMLA leave if it results in an overnight stay at a medical facility. Conditions that incapacitate the affected person for more than three days in a row are considered serious enough to warrant FMLA leave as well.
Family Medical Leave Act FMLA leave for the care of disabled employees and family members, including adult children
In regard to disabilities, the FMLA regulations are in accordance to the Americans with Disabilities Act (ADA) that specifies the definition of disability as “a physical or mental impairment that substantially limits a major life activity”. The qualifying disabilities must be considered as such by the Equal Employment Opportunity Commission (EEOC).
In order for an employee to be granted FMLA leave to care for an adult child, the adult child must be determined incapable of caring for themselves. While there are often differentiating qualifications between the classification of an impairment as a “disability” or “serious medical condition”, certain impairments can meet the definition requirements of either classification under FMLA regulations.
Certifying the existence of a serious heal condition
In order to confirm that a serious health condition is indeed present, the employer might ask that the employee present a form of certification that has been signed by an accredited health care provider. FMLA regulations state that the employer must offer at least 15 calendar days to the employee requesting medical FMLA leave to acquire and present certification of their condition from a health care provider.
In the event that the employer finds the presented medical certification incomplete, the employer must advise the employee of such and provide additional time (usually seven calendar days) to correct whatever deficiencies there are.
The employer must clearly state in writing exactly what it is that constitutes a deficiency of satisfying verification in the medical certification presented by the employee.
At the employer’s expense, they may request a second or third opinion from an equally-accredited medical professional to supplement the initial certification provided by the employee requesting FMLA leave.
Generally speaking, employers are permitted five business days from the employee’s initial request for medical FMLA leave to request medical certification. In the event that the employer doesn’t request medical certification within five days of the initial request, then they may be permitted at least five business days following the beginning of the leave to request the certification.
FMLA regulations regarding medical records
Employees are not required to provide their employer with medical records in order to process a request for medical FMLA leave. The employer does, however, retain a statutory right to ask that the employee provide adequate medical facts to provide additional verification of a legitimate serious health problem.
FMLA regulations regarding communication between the employer and the employee’s primary health care provider
All FMLA regulations are in compliance with the Health Insurance Portability and Accountability Act (HIPAA) privacy regulations. Under HIPAA regulatory guidelines, employers are permitted the ability to reach out to employees’ health care provider(s), a leave administrator, human resource professional, or a management professional in order to clarify the legitimacy of medical certification provided by employees requesting medical FMLA leave.
Before the employer can reach out to their employee’s HIPAA-covered health care provider, the employee must provide their health care provider with their written consent to share the relevant health information. While the employer may be granted consent to contact the employee’s medical health care provider, the employee’s direct supervisor is forbidden from contacting their health care provider.
Regulations for the immediate family of the spouse
Only the immediate family members of an employee apply to FMLA regulatory considerations for taking leave to care for another person. An employee’s mother-in-law and/or father-in-law, unfortunately, do not fall under the permitted categories of people that the employee may be granted FMLA leave to care for.
Job restoration following return from Family Medical Leave
FMLA regulations compel the employer to restore the returning employee’s job upon returning from leave. An employer may also assign the employee to a different (but nearly identical) job, as long as the following conditions are met by the newly-assigned job:
- The new position must adhere to same work schedule
- The new position must be located at a geographically proximate location that does not significantly lengthen the employee’s commute
- The new position must require the same or nearly identical status, duties and responsibilities as the employee’s original job prior to FMLA leave
- The requirements of skill, responsibility, authority and necessary effort must be identical to the original position
- The new position must provide the returning employee with the same amount of pay, including premium pay, bonuses, overtime, and unconditional pay boosts that were activated during FMLA leave
- Identical life insurance, disability, insurance, sick leave, educational perks, and various other benefits must be offered
Situational accommodations for returning military members (USERRA)
In accordance to guidelines set forth by the Uniformed Services Employment and Reemployment Rights Act (USERRA), people who were provided FMLA leave due to USERRA-covered service must be, upon reemployment, given credit for any hours and months of their service during which they would have been otherwise been employed.
Family Medical Leave Act FMLA Tracking Software
In order to help agencies maintain proper compliance with the federal/state/union mandates, there is FMLA Software available to accurately track paid and unpaid leave policies. With the convenient implementation of FMLA Tracking Software, employers and employees alike are spared the headache of organizing vital FMLA eligibility details that may be tedious to retrieve.
An FMLA Tracking solution can assist employers in the following ways:
- Processes an employee’s active hours since the date of hiring to determine whether or not the employee is eligible for FLMA
- Keeps track of FMLA leave on both a concurrent and intermittent basis, while factoring in additional leave types
- Automatically generates all of the essential documents needed for FMLA processing
- Serves as storage space for records of medical certification
- Provides notifications whenever there is a need for additional medical certification documents
- Serves as a safeguard against the chance of any potential litigation from employees and/or investigations conducted by Department of Labor
- Lowers the margin of error for any administrative mistakes that may occur in a manual FMLA administering procedure
- Greatly expedites the process of manually administering leave laws, both on the state level and federal level