FMLA and Leaves of Absence

The Family and Medical Leave Act (FMLA) was passed in 1993. Hard to believe that it has been in existence for 25 years. During that time there have been many changes made to the law and a significant amount of guidance issued by the government on how the law works.

The FMLA provides an unpaid leave of absence to eligible employees for serious health conditions (including pregnancy/childbirth) and the need to care for family members with serious health conditions, as well as other qualifying reasons. The length of leave to be provided is up to 12 weeks during either each calendar year of employment, or some other set one-year period,  or a rolling one-year period, as selected by the employer.  The employee’s job rights are protected during the leave, and they have the right to continue their medical benefits coverage during the leave.

There are special rules for the care and support of veterans who are family members, including an extended leave period.

The FMLA applies to all

  • public agencies, including local, State, and Federal employers, and local education agencies (schools); and
  • private sector employers who employ 50 or more employees for at least 20 workweeks in the current or preceding calendar year – including joint employers and successors of covered employers.

Not all employees of an employer are eligible for the FMLA coverage;

  • they must have worked 1,250 hours during the 12 months prior to the start of leave,
  • work at a location where the employer has 50 or more employees within 75 miles,
  • and have worked for the employer for 12 months.

For small organizations not subject to FMLA,  should you provide leaves of absence for medical and family issues?  Absolutely. The question is how much leave and with or without pay.  I have recommended in the past that a leave of up to 12 weeks per year without pay, as is true for FMLA covered employers, (unless the employee uses their paid time off benefit) makes sense.  This leave should cover leave for pregnancy/childbirth as well as other medical conditions, which ensures compliance with the Pregnancy Discrimination Act.

I have found that the documentation available from the federal government for the FMLA is the best of all the workplace laws. For example, an Employer’s Guide is available at the USDOL Wage and Hour Division site.  There is also a valuable set of Q & A’s at that site which answers most if not all questions that you may have.

Many states (e.g. California, New York, Rhode Island, New Jersey) have laws regarding leaves of absence and pregnancy leaves in addition to the federal law.  The general rule is that the law (or provision of the law) that provides the greatest benefit to the employee is the one that you must follow.

As a starter, make sure you address the following must-haves in your FMLA administrative practices:

  • Issue the proper documents/notices to employees during the leave of absence, and require employees to respond with proper documentation of the need for leave.
  • Track the amount of leave taken by the employee, especially in cases of intermittent leave
  • Prepare and disseminate an FMLA policy; post it and add to your employee handbook (if you have one).  Make sure the policy is reflective of your actual practice.
  • Train your managers on FMLA administration. Managers are key in ensuring compliance and proper administration.
  • Coordinate FMLA leaves with leaves covered by Worker’s Compensation and with your internal paid leave benefits provisions.
  • Review the requirement to extend the maximum leave period as required by the Americans with Disabilities Act (ADA).

A lot to digest, I know.  But, as noted above, there is plenty of guidance available for free. The key is to know when you need to refer to that guidance before you make an employment-related decision that is covered by these laws.

Published by Dave the HR Compliance Guy

Human Resource and legal professional specializing in HR compliance advisory services

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