As an employer, you want to ensure you meet all obligations to your employees, from benefits to protections.
However, some obligations come up infrequently, so it’s not uncommon to be a bit fuzzy on the details. One such topic is the Family and Medical Leave Act (FMLA leave). It’s possible to run a business for months or even years without encountering a leave request that would qualify under FMLA.
Luckily, the basics of FMLA are pretty straightforward. It mostly boils down to an awareness of the FMLA leave process—particularly required notifications.
What is FMLA Leave?
The Family and Medical Leave Act allows qualified employees to take leave for certain family and medical reasons. The act gives these employees unpaid job protection for up to 12 weeks in a 12-month period.
Qualified employees can take FMLA in the following situations:
- birth, adoption, or foster placement of a child
- serious health condition that prevents the employee from working
- care for spouse, child, or parent with serious health condition
- qualified events related to foreign deployment of military spouse, child, or parent
If caring for an injured or ill military service family member, leave can be taken for up to 26 weeks in a 12-month period.
Which Employers are Affected by FMLA?
Public agencies, elementary and secondary schools, and private employers with at least 50 or more employees are considered “covered employers.” Covered employers are required to take specific steps to meet FMLA obligations—even before any leave requests are made.
What are Initial Requirements for Employers?
Poster: Covered employers are required to display a Department of Labor FMLA poster at each business location in an area where it will be easily seen by employees.
General Notice: Employers must distribute a general notice to FMLA-eligible employees. The notice must, at minimum, contain all the information from the poster, so it’s often easiest to simply copy the poster information and add it to your employee handbook.
How Do Employers Respond to Leave Requests?
If an employee requests leave for any FMLA-qualifying reason, you’ll have to follow the steps below. Note that employees don’t have to specifically request FMLA leave.
1. Determine the employee’s eligibility for FMLA leave
Within 5 days of the initial leave request, you’re required to provide the employee with two notices:
- Eligibility Notice: This notice will either inform the employee of their FMLA eligibility or will give specific reasons why the employee is ineligible. To be eligible, employees must have at least 1,250 service hours and have worked for the employer for at least 12 months prior to their FMLA leave start date. Note that employment doesn’t have to be consecutive. The employee’s particular work location must also have at least 50 employees within 75 miles.
- Rights and Responsibilities Notice: This notice includes important information, such as the period of leave, whether the employee needs to provide certification of need, whether the employee is required to substitute any paid leave, and more.
Most employers use the DoL’s combined Notice of Eligibility and Rights and Responsibilities form.
2. Wait for certification of need (if applicable)
In the Rights and Responsibilities Notice, you have the option to request certification of need. Essentially, this is proof that the reason for leave qualifies for FMLA, such as documentation from a health care provider. Employees must provide requested certifications within 15 days unless there are extenuating circumstances.
Employers can request the following types of certification:
- medical certification for employee
- medical certification for family members
- certification for exigency leave for military family members
With medical certifications, it’s important to note that a diagnosis isn’t required. Instead, a health provider should note information relevant to the employee’s ability to work, including the expected duration of the condition. Exigency leave certification is more variable but can include a request for a copy of the military member’s active duty orders.
If the certification provided is incomplete or insufficient, you must request a correction. Employees typically have 7 days to correct issues or employers can deny the FMLA leave request. Also, if a medical certification seems dubious, you can (at your own expense) request a second opinion from another health care provider. If their opinion differs, a final opinion from a third health care provider is required.
3. Approve or reject the leave request
If you’re uncertain about whether the reason for leave qualifies under FMLA, a good resource is the FMLA Employer Guide, which goes over common questions, such as whether new fathers qualify for FMLA (they do) or if FMLA can be used to care for adult children (it can in cases of disability or serious health conditions).
Once you’ve made your final determination, you’re required to give the employee yet one more notice:
Designation Notice: This notice formally approves or rejects the FMLA leave request and includes key information, such as the amount of leave being used. You can write your own notice or use the Designation Notice form provided by the DoL.
4. Maintain health benefits and prepare for employee’s return
There are specific FMLA guidelines regarding health benefits. Essentially, if employees (and any family members) have health coverage under your company’s group health plan, they must continue to receive coverage during their leave. Employees on FMLA are still required to pay any premiums.
When the employee returns from FMLA leave, they must return to the same position or an equivalent one (same pay, shift, etc.). This isn’t to say that employees on FMLA are never laid off. An employer can lay off an employee during their FMLA leave, but the employer must be able to show that this would have happened even if the employee had not been on leave.
Copyright © 2023 SCORE Association, SCORE.org
Funded, in part, through a Cooperative Agreement with the U.S. Small Business Administration. All opinions, and/or recommendations expressed herein are those of the author(s) and do not necessarily reflect the views of the SBA.