The Family Medical Leave Act (FMLA) is, on its surface, pretty straightforward. The act is a federal law which allows your employee to take up to 12 weeks of unpaid leave if they meet certain qualifying conditions.
On closer inspection, “certain qualifying conditions” leaves a lot to be clarified.
Let’s take a deeper look at what makes employers and employees eligible for FMLA and how you can manage this broad act.
Do You Have to Offer It?
Before you dive into whether or not an employee is eligible for FMLA, you must first determine if your organization is required to offer FMLA. The following information is taken from a guide provided by the U.S. Department of Labor:
The FMLA applies only to “covered” employers. A covered employer may be a private-sector employer, a public agency, or a school. Covered employers must provide FMLA benefits and protections to eligible employees and comply with other responsibilities required under the FMLA and its regulations at 29 CFR Part 825.
The FMLA only applies to employers that meet certain criteria. A covered employer is a:
- Private-sector employer, with 50 or more employees in 20 or more workweeks in the current or preceding calendar year, including a joint employer or successor in interest to a covered employer;
- Public agency, including a local, state, or Federal government agency, regardless of the number of employees it employs; or
- Public or private elementary or secondary school, regardless of the number of employees it employs
Conditions Employees Must Meet
Your employees must also meet a variety of employment conditions to be eligible for FMLA. An eligible employee is one who:
- Works for a covered employer;
- Has worked for the employer for at least 12 months;
- Has at least 1,250 hours of service for the employer during the 12-month period immediately preceding the leave*; and
- Works at a location where the employer has at least 50 employees within 75 miles.
Then there’s the matter of the reasons why an employee needs the time off. According to the US Department of Labor, an employee may request FMLA for:
- The birth of a child and to care for the newborn child within one year of birth;
- The placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement;
- To care for the employee’s spouse, child, or parent who has a serious health condition;
- A serious health condition that makes the employee unable to perform the essential functions of his or her job;
- Any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty;” or 26 workweeks of leave during a single 12-month period to care for a covered servicemember with a serious injury or illness if the eligible employee is the servicemember’s spouse, son, daughter, parent, or next of kin (military caregiver leave)
One last thing to note is that employees can return to work intermittently during their leave. FMLA absences do not have to take place during a solid block of 12 months where they do no work at all — employees can still qualify for the leave while sticking to a reduced work schedule.
For example, a doctor may recommend an employee only works two days a week and rests the other three. This is an option you should discuss with your employee if possible, as it will ease the stress of your employee having to fully integrate themselves back into the workplace after a prolonged absence and allow you to keep tabs on their recovery and needs.
The next factor to consider is how you should go about approving employee FMLA requests.
Now, it might go without saying, but your first step should be to see how the act matches up with your existing paid leave options. If your employee is requesting FMLA, they are likely going through some kind of emotional stress on top of any physical issues they are currently facing. Any assistance you can provide — including financial — will be appreciated and only have a positive impact on your organization’s culture.
If FMLA is determined to be the best option, an employee has 15-days to prove they need this leave. Most often this will be a medical certification form, but employers can also contact health care providers for confirmation or the appropriate authority, like the military, for example.
Once an employee is on leave, you should check in with them periodically. This is not only to monitor their progress and to let them know they’re still welcome back in the office — an important part of a successful return to work policy — but also to ensure that your employee is not taking advantage of their leave.
While not common, there are times when employees mislead employers to take advantage of FMLA policy.
If an employee, for example, has two scheduled absences a week through FMLA but is absent for full weeks at a time, you should request an updated medical certification form to ensure there is a real reason for the absences.
If you suspect that documents are being forged or more serious FMLA abuse is taking place, then you might consider going as far as to hire a private investigator to look into the case.
If you find that an employee actually has no need for an absence and was clearly lying, then you’ll have documented proof which will be critical if an employee files a lawsuit after their dismissal.
Have an Approved Policy
You need to have a spelled-out plan in your employee handbook for how your organization will navigate extended absences from employees, regardless of your organization’s size.
If you employ over 50 employees this might seem obvious, but even those slightly under 50 or that think they might one day grow to that number would do well to plan ahead and have these guidelines documented.
This plan should include notes on check-in frequency and an outline for the steps you will take if abuse is expected, along with directions for where employees can find more information or who they should talk to if they need an extended leave.
Human resource departments should be as thorough as possible when researching FMLA. While we touched on key parts of the act today, there are still many forms and other considerations that need to be considered when putting your plan together.
Consider working with an employment law attorney or partnering with experts like IPMG to get the support and resources you need. For example, IPMG offers a legal policy review and legal consulting expertise to ensure your plan adheres to both federal law and your existing policies. When it comes to tracking employee activity under your policy, IPMG offers a tracking solution that allows clients to monitor eligible employees for their selected 12-month period during.
Navigating the FMLA can be difficult. It doesn’t have to be.
To learn more about how IPMG can help your organization develop a FMLA policy, contact us today.