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FMLA Compliance: The Family And Medical Leave Act For Employers

by David Polaski on Dec 17, 2020 6:12:44 AM

As a business owner, navigating Family Medical Leave Act (FMLA) leave can be confusing, and if you don’t get it right, it can also be expensive. In fact, penalties for non-compliance include fines from the DOL and potential legal action that can result in monetary damages, attorney’s fees, and more. With so much at stake, it’s important to understand your obligations to avoid a dispute with an employee.

Complete Payroll Solutions has a team of compliance experts available throughout the Northeast who educate our clients on requirements of employment legislation like the FMLA to prevent serious consequences. Here we’ll walk you through the biggest issues you need to be aware of to comply with the FMLA:

  • Determining eligibility
  • Notice requirements
  • Recordkeeping
  • Interaction with other types of leave

Upon completion of this article, you’ll understand the steps to take to stay compliant with the FMLA so you can avoid potential pitfalls.

What is the FMLA?

Passed in 1993 to help employees better balance work and family demands, the FMLA requires employers to provide job-protected, unpaid leave to employees for qualifying reasons. Generally speaking, it provides employees of covered companies with up to 12 weeks of unpaid, job-protected leave.

Who must comply with FMLA?

The first thing you need to do is determine whether your organization is subject to the law’s requirements. The FMLA only applies to covered employers, which can be:

  • Private Employer: A private employer is covered if it employs 50 or more employees during each working day for 20 or more weeks in the current or preceding year.
  • Public Agency: Any size public agency is considered a covered employer under the FMLA.
  • Schools: Both private and public elementary and secondary schools, as well as public school boards, are covered under the FMLA regardless of the number of employees.

If you’re a private employer, there are several categories of employees that count when determining the number of employees:

  • Any employees on the payroll, even if they are not receiving compensation for the week
  • Employees on leave if there is a reasonable expectation that they will return to work
  • Full-time, part-time, seasonal, and temporary employees

For what reasons can my employees take FMLA leave?

When an employee requests FMLA leave, it’s important to understand what’s considered a qualifying reason under the law. Employees who meet the eligibility criteria, which we’ll discuss in a bit, can take up to 12 weeks of leave for any of the following reasons:

  • The birth and care of the employee’s newborn child
  • Placement of a child with the employee for adoption or foster care
  • Care of an immediate family member (spouse, child, or parent) with a serious health condition
  • The employee’s own serious health condition

The law also requires a covered employer to grant an eligible employee up to a total of 26 workweeks of unpaid, job-protected leave during a single 12-month period to care for a covered military servicemember (spouse, son, daughter, parent, or next of kin) with a serious injury or illness.

The birth and care of the employee’s newborn child

One of the most common qualifying reasons for FMLA leave is the birth or adoption of a child, and there are specific rules governing these situations.

  1. The leave must be taken within 12 months of the birth or placement of the child
  2. Spouses employed by the same employer are limited to a combined total of 12 workweeks of leave
  3. Birth and bonding leave must be taken as a continuous block of leave unless the employer agrees to allow intermittent leave

Employee or family members serious health conditions

Another frequent reason for leave is a serious health condition. A serious health condition is an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a healthcare provider. When the employee requests leave to care for a family member with a serious health condition, only certain individuals are considered family:

  • Spouse: A spouse is a husband or wife as defined or recognized under state law, including a common law marriage or same-sex marriage. Domestic partners and civil union partners are not considered spouses.
  • Parent: A parent is a biological, adoptive, step, or foster father or mother or any other individual who stood “in loco parentis” (in place of a parent); however, it does not include parents-in-law.
  • Son or Daughter: A son or daughter can be a biological child adopted or foster child, stepchild, and legal wards. It can also be the child of a person standing “in loco parentis.”

What are my requirements under FMLA?

First, employers must post a general notice explaining the FMLA’s provisions and providing information regarding procedures for filing a claim under the Act in a conspicuous place like a lunchroom or company bulletin board where it can be seen by employees and applicants.

Under the regulations, this posted notice must include additional information regarding the definition of a serious health condition, the new military family leave entitlements, and employer and employee responsibilities.

You can use the current or previous model poster from the DOL or your own notice that contains all the necessary information. If a significant portion of your workforce is not literate in English, you’ll need to provide a general notice in a language employees can read and write.

In addition to the general notice, if you have FMLA-eligible employees, you also have to provide a notice to each employee. This notice must be included in your employee handbook or other written materials about your leave and benefits.

In addition to the general notice, if you have FMLA-eligible employees, you also have to provide a notice to each employee. This notice must be included in your employee handbook or other written materials about your leave and benefits.

If you don’t have a handbook, be sure to distribute a general notice to each new employee upon hire, which can be done electronically. The notice can use the language from the DOL’s model poster or follow another format as long as it includes all of the information contained in the model poster.

Who is eligible for FMLA leave?

As a covered employer, one of the most challenging aspects of compliance with the FMLA is determining if an employee is eligible for leave under the law. Eligible employees are those that have:

  • Worked for you for at least a total of 12 months (these do not need to be consecutive)
  • Worked at least 1,250 hours during the 12-month period immediately before the leave
  • Work at a location where you have at least 50 employees within a 75-mile radius (for remote employees, this wouldn’t be their home office but the office to which they report and from where assignments are made) 

If you determine that an employee has met the eligibility criteria, you have to furnish certain required notices to the employee:

  • Eligibility Notice: This notice, which can be oral or written, must inform the employee if they are eligible for leave.
  • Rights and Responsibilities Notice: This notice details specific expectations and obligations of the employee and must be issued each time you issue an eligible employee the Eligibility Notice

Employers that choose to provide a written eligibility notice can use the DOL model notice, which combines both the Eligibility Notice and Rights and Responsibilities Notice in one form, or you can use your own version. 

After you determine that an employee meets the eligibility requirements, the next step is to consider whether their leave request is for an FMLA-qualifying reason.

How do I make FMLA leave determinations?

For you to consider a request for leave, the employee first has to fulfill certain responsibilities.

  • The employee must comply with your usual and customary procedures for requesting leave; however, they don’t need to specifically mention FMLA in the request but must give enough information that you understand it may be covered.
  • If the leave is foreseeable, the employee must provide at least 30-days’ advance notice, if practical, and include when and how much leave is needed. If the leave is unforeseeable, they need to provide notice as soon as possible and practical.

You’ll then have to look at the information the employee supplied and decide whether the request is for a qualifying reason, which we discussed earlier. In certain situations, specifically leave due to a serious health condition or military family leave, you can request certification for leave if you don’t have enough information. Certification is essentially documentation from a healthcare provider in support of the leave. It must typically be provided within 15 days; if the employee doesn’t provide it, you can deny the leave request.

If you conclude that you’ll designate leave as FMLA leave, you must provide a Designation Notice. This notice lets the employee know you’re designating leave as FMLA leave and must be provided within five business days of when you received enough information to determine if the leave is for a FMLA-qualifying reason. The DOL has a model notice or you can create your own that includes:

  • The amount of leave that will count against the employee’s FMLA leave entitlement, if known 
  • Whether the employee is required to substitute paid leave for unpaid FMLA leave
  • Whether the employee will be required to submit a fitness-for-duty certification to return to work

What employee protections do I have to provide during FMLA leave?

After you grant a leave request, it’s important to comply with the employee protections afforded under the FMLA.  

One of the most important is that you must maintain group health benefits for the employee on leave on the same terms as if the employee had continued to work, including new options being offered to employees.

During the leave, the employee must continue to pay their share of the premiums. If their payment is more than 30 days late, you can drop their coverage; however, it must be reinstated when the employee returns.

There is one exception to maintaining health benefits: coverage can be terminated if an employee informs you that they’ll not be returning to work.

You also have to restore the employee to the job they had when leave began or an equivalent role with equal pay and benefits when they return from FMLA leave. However, there are some exceptions to this rule:

  • Employees aren’t protected from actions that would have affected them if they weren’t on FMLA leave, for example, if a shift has been eliminated
  • You may deny restoration to “key employees” ‒ those that are among the highest paid 10% ‒ to prevent substantial and grievous economic injury
  • In some cases, you may delay restoration to employees who don’t provide a fitness-for-duty certification from their healthcare provider stating that they’re able to resume work  

What types of records do I need to keep?

Your responsibilities don’t end when FMLA leave is completed. You need to keep and maintain FMLA records for three years, including:

  • Basic payroll and identifying employee data
  • Dates of FMLA leave
  • Hours of leave (if taken in increments of less than a day)
  • Employee notices
  • Documents describing employee benefits or policies regarding the taking of leave
  • Premium payments for employee benefits
  • Records of any disputes regarding leave designation

The records can be kept in any form, including electronic, as long as they’re available for inspection upon request.

How does FMLA leave interact with other types of leave?

Federal FMLA leave is typically unpaid. However, the employee may choose or you may require them to take paid leave, such as sick time or paid time off (PTO), to cover some or all of the leave.

When a substitution occurs, the paid leave and FMLA leave run concurrently. Keep in mind that when leave is used for an FMLA-covered reason, for example, for the birth of a child, it is still protected.

There are other instances when different federal or state laws come into play.

  • Workers’ Compensation: A workers’ compensation absence for the employee’s own serious health condition may also be designated as FMLA leave. When that happens, the leave counts towards the employee’s FMLA leave entitlement. However, because the leave is paid, you can’t require other accrued paid leave (for example, sick leave) to be substituted. However, if you and your employee agree and state law permits, accrued paid leave may supplement the plan’s benefits to bring the employee up to their salary level.
  • Americans with Disabilities Act (ADA): The ADA, which applies to employers with 15 or more employees, requires covered businesses to provide reasonable accommodations to disabled employees. Leave may be a reasonable accommodation and, if provided, it runs concurrently with FMLA-protected leave. Keep in mind that the FMLA’s leave provisions differ from the ADA’s reasonable accommodation requirements so you must provide leave under the provision that gives the employee the greatest protections.
  • State Leave Laws: Many states have enacted their own laws to provide different, or additional, leave rights. These laws may provide longer leave periods, greater benefits, or leave for other reasons. While you must follow the rules for the state and federal laws when they are both applicable, employees must be afforded the rights and protections of the more generous law. However, leave would count against both leave entitlements. When only FMLA or the state leave law covers the leave, then it would only count against the applicable law’s leave entitlement.

Getting FMLA Leave Right

Administering FMLA leave can be challenging. And if you violate an employee’s FMLA rights, they can either file a complaint with the Secretary of Labor or a lawsuit – which can both have costly consequences for your business. Now that you know the rules and regulations around FMLA rights, you’re probably wondering how to ensure compliance.

Here is a free summary of five steps you can take to avoid FMLA missteps.

For further guidance in navigating the FMLA rules and regulations, Complete Payroll Solutions’ certified HR professionals are here to help. It’s best to use a third-party when you want to focus on your business, and not have to spend your time on tricky compliance issues. Learn more about our compliance services and how we can help you comply with FMLA leave and more.


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