Employers often have employees who are growing their families or seeking treatment for a serious health condition yet are unaware of their rights and responsibilities under the Family and Medical Leave Act (“FMLA”). The FMLA requires covered employers to provide up to 12 weeks of unpaid leave to eligible employees with qualifying medical conditions or situations. Covered employers include public agencies of any size, both public and private schools, and private employers who employ at least 50 employees within a 75-mile radius. An employee is eligible when they have worked for their employer for at least 12 months within the last 7 years and have actually worked at least 1,250 hours within the 12 months prior to taking FMLA leave.

To take FMLA leave, an eligible employee must also have a qualifying medical condition or familial situation.  One common reason employees take FMLA leave is for the birth of their child or for the placement of a child for adoption or foster care. An employee is also eligible if they are seeking treatment for a chronic or serious health condition or to care for a spouse, parent or child with those conditions. Lastly, the FMLA also covers leave for an employee to care for a spouse or immediate family member in the military who is called to, or injured during, active duty. Under those circumstances an employee could be eligible for up to 26 weeks of leave within the 12-month period.

The following are some requirements/best practices under the FMLA.

  • Employers are required to post notice of the FMLA’s provisions for employees. Make sure the notices are up to date. The poster can be downloaded at dol.gov/whd/regs/compliance/posters/fmla.htm
  • When employees request FMLA leave they do not need to specify their leave as FMLA leave. They only need to articulate a circumstance such as a health issue that could qualify as a serious health condition that could qualify for FMLA leave.
  • Train supervisors about the FMLA. Notice to a supervisor about an employee’s need for FMLA leave is notice to the employer.  Notice can be verbal or in writing.
  • Require proper documentation by providing the employee with a copy of FMLA the certification of health provider form from the Department of Labor. These forms can be found at dol.gov/whd/forms/index.htm
  • For leave that is foreseeable, such as pregnancy or planned surgery, an employee must give their employer at least a 30-day notice. For leave that is not foreseeable, an employee must notify their employer as soon as reasonably possible.
  • Employees taking FMLA leave for their own serious health condition may be required to provide a return to work certification before returning. If the medical provider signs a full release, the employer cannot seek a second return to work opinion.
  • Employers should require employees to take earned paid leave concurrent with FMLA leave. For example, if the employee has earned 50 hours of paid leave at the start of the leave, those hours would be used during the 12 week FMLA leave, but would not add time to the 12 weeks. Be sure this requirement is written in your employee handbook.
  • Leave taken upon the birth, adoption or foster placement of a child cannot be taken on an intermittent basis, without agreement by the employer, unless there is a serious health condition.
  • A father and mother working for the same employer are entitled to a total of 12 weeks split between them upon the birth, adoption or foster placement of a child unless there is a serious health condition.
  • An employer is required to investigate instances when it reasonably believes FMLA may apply even if the employee does not mention or states they do not want to use FMLA.

 

Keep in mind, many FMLA situations also can involve the Americans with Disabilities Act and workers compensation.  Given the complexities of the FMLA and its frequent application, covered employers should stay up to date on their obligations and train supervisors on the basics of the FMLA so they can understand and report issues when they arise.

Fishel Downey regularly provides FMLA training and policy review for employers and, when necessary, represents employers in FMLA lawsuits.  Contact us at info@fisheldowney.com for more information about the training we offer.