A survey by the U.S. Department of Labor reveals that most employees are seeking leave requests on the basis of the Family Medical Leave Act, FMLA, (1993). Most of these employees (55 percent) cite ill health as their reason for seeking FMLA leave. This act aims to help employees balance their work and family lives by granting them at least 12 workweeks of unpaid leave in a calendar year for a number of reasons. As a business owner, you should understand the various ins and outs of the FMLA to avoid violating it.
The Family Medical Leave Act (FMLA) covers small business owners with 50 or more employees on their payroll and public agencies or public and private elementary and secondary schools, regardless of the number of employees. This applies to employees who are on your payroll during 20 or more calendar weeks in the present calendar year or the preceding one. Among these 50 or more employees, include those who are working part time, seasonal, temps, commissioned employees as well as those without compensation.
At an individual level, those eligible for leave under FMLA must have worked for you for a total of 1,250 hours. An eligible employee is one who also has worked for the employer for at least 12 months within the last seven years and is working within a 75 mile radius of the worksite.
An employee is eligible for 12 workweeks of leave under the following circumstances:
- If he or she plans to care for a newborn child within 12 months of birth (applies to both male and female employees as well as those in same-sex marriages)
- Taking care of a newly adopted child or foster care child within 12 months of placement
- Caring for a spouse, parent (including in loco parentis) or child with an adverse health condition
- Qualifying exigencies arising from the deployment of an employee’s spouse, daughter, son or parent on covered army duty
- An adverse health condition that prevents the employee from effectively executing his or her duties
An employee is eligible for 26 workweeks of leave during a single 12-month period under the following circumstances:
- In the case of a military caregiver leave, in which an employee seeks to care for an ill or injured covered service member who is a spouse, parent, daughter, son or next of kin.
Employee’s entitlement to FMLA leave based on an adverse health condition of a family member is premised on two conditions. First, the affected family member must be unable to undertake normal chores, hence the need for assistance from the concerned employee. For example, the family member may need someone to take him or her to the doctor. An employee may also seek this leave when his or her ill family member requires psychological reassurance and comfort.
Benefits Included in FMLA
If you have employees who are spouses, you may only grant them a combined leave of 12 workweeks under FMLA in the following circumstances:
- Taking care of a newborn within one year of birth
- Taking care of a family member with a serious health problem
- Taking care of a newly adopted or newly placed child
Under normal circumstances, FMLA requires you to restore an employee to his or her normal job position after completing his or her FMLA leave period. However, the Department of Labor (DOL) adds that an employer may not necessarily restore an employee to his or her former position but should restore such an employee to an equivalent job. This means that this new job should have the same pay and benefits, as well as employment terms and conditions as the previous job. Other leaves may run concurrently in CA that have additional employee protections, so be sure to consult with legal counsel.
However, FMLA shields you from certain obligations towards employees in case you undertake a business decision that would have affected them had they not been on FMLA leave. For instance, a decision to change the overtime hours or shifts will apply to an employee when he or she resumes work. This means that you need not restore such an employee to his or her previous work under the original overtime hours.
Employees may not necessarily exhaust the entire 12 weeks if they are able to resolve their reasons for requesting for the leave quickly. Additionally, Section 203 of the FMLA grants your employees the right to a reduced work schedule or intermittent leave. This is only applicable when an employee needs to take care of an ill family member or to seek treatment for his or her serious illness. You can also grant intermittent/reduced schedule leave to employees who need to care for a newly adopted child.
Employees who foresee a need for intermittent leave should inform you at the earliest instance to avoid inconveniencing your business activities. This provides you with the option of temporarily transferring such employees to alternative jobs that will not suffer significantly during their period of leave. In such a scenario, the employee’s pay, terms and conditions remain similar to his or her old job.
Employees on FMLA leave are also entitled to the benefits they would have enjoyed had they not been on leave. Subsequently, your employees on leave under FMLA will still enjoy the group health insurance coverage, just like they would have enjoyed while on paid leave.
Benefits also include bonuses or pay increases you institute while the employee was on leave. You may also provide pay increases to your employees on FMLA leave based on their seniority, length of services and work performed. However, this is only possible when you have also increased the pay of other employees who took the same kind of leave for non-FMLA reasons.
Similarly, an employee on FMLA leave is entitled to any bonuses you awarded to other employees based on accomplishment of certain tasks. This is despite the fact that the affected employee would not be eligible for the bonuses because he or she was on FMLA leave and thus could not accomplish these goals. However, you can only pay these bonuses if you have also awarded the same to other workers who were on paid leave for the same reason as the employee who was on FMLA leave.
What Employers Have to Do
It is mandatory to post a FMLA poster at a suitable location in your workplace where your employees and new hires can easily read its contents. The poster enlightens employees of the FMLA provisions, while providing them with guideline on how they can lodge a complaint with the Wage and Hour Division. DOL emphasizes that all employers must post this written notice even when they do not have eligible employees. Failure to display this poster can earn you a civil penalty for every offense.
You can download the official FMLA poster from Wage and Hour Division’s website at no cost. Alternatively, you can develop your own poster but it has to include all the relevant information as displayed in the official FMLA poster.
Your employee handbook should also include all the information on FMLA as is the case with the FMLA poster. The same case applies to written documents that outlining leaves and benefits. Walcheske and Luzi, an employment law firm in California, advises that including FMLA information in your handbook will help you enforce certain policies related to this type of leave, such as a call-in policy.
If you do not have a written document or employee handbook in place, enlighten your new hires about the provisions of FMLA by giving them communication materials that contain this information, such as brochures or factsheets. You may duplicate the language used in the official FMLA poster or structure your information in another format. This is as long as the communication materials capture the entire information on the FMLA poster. Feel free to distribute these materials to new employees through electronic means or hard copies.
When an employee seeks leave for the first time due to an FMLA-qualifying reason, you should determine his or her eligibility before issuing a notice of eligibility. This notice – which may be oral or written – must reach the affected employee five days after he or she makes a request. You should also notify the employee whether he or she is eligible for FMLA leave. If the employee is not eligible, provide him or her with at least one reason why this is the case. (Note: the first time an employee requests leave, the employee is not required to specifically mention the FMLA. However, the employee is required to provide enough information for the employer to know that the leave may qualify for FMLA).
Equally important, you must furnish the employee with a written rights’ and responsibilities notice.
It informs the employee of the following:
- Possibility of counting the leave as FMLA leave*
- Employees’ rights and the employers’ conditions for substitution of paid leave as well as employee’s entitlement to unpaid leave
- The designated 12-month period for calculating FMLA leave entitlement
- Employee’s right to maintenance of benefits and job restoration
- Instructions to employee to make arrangements for premium payments towards health insurance coverage
- Whether a certification supporting the need for leave is required.
- The consequences of failing to meet his or her obligations
*Once eligibility is determined, employers must also notify its employees if leave will be designated as FMLA leave, and if so, how much.
It may be necessary for you to post these notices in another language apart from English to cater to employees who may not have English as their first language.
Adhering to FMLA regulations not only safeguards you from penalties but can also boost productivity in your business. Employees who obtain FMLA-qualifying leave can come back to work with increased motivation after having resolved the circumstances that necessitated the leave.