Family and Medical Leave Act (FMLA)

What is the Family and Medical Leave Act (FMLA)?

The Family and Medical Leave Act of 1993 (FMLA) was passed February 5, 1993 during the administration of President Bill Clinton. The FMLA entitles eligible employees to take unpaid, job-protected leave for specified family and medical reasons with continuation of employer health insurance coverage. Employers must provide qualifying employees:

Twelve workweeks of leave in a 12-month period 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

Twenty-six 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). (US Department of Labor)

Employers: Avoid These Common FMLA Mistakes

1. Not Forming an FMLA Policy

FMLA allows you to decide some policies in how you administer FMLA leave. One of these is how you measure 12 month FMLA leave in a fiscal or calendar year.

Employees can take up to 12 weeks of FMLA leave in a 12 month period. However, you can define if that time is in a calendar year, or a rolling 12 months backward.

For example, if an employee requests FMLA leave today, then the amount available would be based on how much time they have used in the previous 12 months.

Finally, use can use a rolling 12-month period from the first day of FMLA leave that resets in 12 months or a fiscal year. This is important because unless an employer defines the method of 12-month calculation for FMLA, employees will usually choose a calendar method.

This means that technically an employee can take the last 12 weeks of the calendar year off and the first 12 weeks of the new calendar year. Unless you have already defined and notified employees of the calculation method of the FMLA 12-month period, employees can choose to take leave in the way that is most advantageous.

Another example of FMLA policy should include whether or not employees must use paid leave for FMLA leave. FMLA allows employers to require paid leave as part of FMLA leave. However, employers must apply this policy uniformly and should inform employees of it.

FMLA Rules Tip For Employers: Define how you calculate FMLA leave per year and include it in your employee handbook.

2. Failing to Notify Employees of FMLA Rights

Unfortunately, many employers assume that employees already know about their rights under FMLA.

You are required to notify employees of their FMLA leave rights in two separate ways:

  1. Post FMLA rights at your place of business
  2. Notify of FMLA rights when hired

Include the FMLA notice in your employee handbook, on a form, or it can be provided in an electronic format. Employees won’t automatically know if an employer is a covered employer under FMLA or what the employee must do to qualify.

FMLA Rules Tip For Employers: Display an FMLA poster, outline FMLA rights in your handbook, and include an electronic copy in your onboarding materials.

3. Not Using FMLA Forms

In addition to notifying employees, you need to use FMLA forms for employee leave.
This helps to ensure that you are following FMLA guidelines for employers. The forms also simplify medical verifications of employee leave. Using the official forms will ensure that you don’t ask for information prohibited under FMLA.

FMLA Rules Tip For Employers: Download FMLA forms from Department of Labor/FMLA. Include this link and instructions for filing in Human Resources training materials. Have your HR manager give the Human Resources team a refresher course on filing FMLA forms.

4. Failing to Confirm when Employees will Become Eligible for FMLA

Employees are eligible for FMLA leave when they have worked for the employer a total of 12 months over the previous 7 years and 1,250 hours over the previous 12 months. This means that rehired employees may be eligible under FMLA shortly after rehire. Essentially a full time rehired employee (who hasn’t worked in the last 12 months for the same employer) would become eligible during the 32nd week.

If the employee has worked for the same employer in the last 12 months, then those hours would count toward the 1,250 required hours for eligibility. Employers can track first the minimum number required months with the employer at which point employers should verify the hours worked over that time period and if needed, track the remainder of the hours required for FMLA leave.

FMLA Rules Tip For Employers: Use an HR portal like WorkforceHUB to track employee work tenure. Set custom notifications that indicate in each employee’s profile when they are eligible for FMLA.

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