Your FMLA Roadmap: Three Steps to Managing Employee Leave
Since the Family and Medical Leave Act (FMLA) passed in 1993, employers have struggled to meet its regulatory obligations. Although it’s been nearly 25 years – the challenges employers are dealing with haven’t gotten any easier. Leave requests can be very complex – and can distract employers from the underlying compliance requirements. These three key steps can keep you on track and support consistent FMLA administration.
Step 1: Determine Eligibility
The first step includes determining:
- If the employer is subject to the FMLA, and
- If the employee is eligible for leave
Focusing on the private sector, an employer is subject to FMLA regulation if it employs 50 or more employees in 20 or more work-weeks in the current or previous calendar year.
Employees are eligible to take leave if they meet all three of these requirements:
- The employee has worked for his or her employer for a minimum of 12 months (does NOT need to be consecutive),
- The employee has worked for his or her employer for at least 1,250 hours in the 12 months immediately preceding the start of the leave, and
- The employee works at a location where at least 50 employees are employed within 75 miles when the leave is requested
Step 2: Consider Qualifying Leave Reasons and Relationships
If the employee is eligible for leave, employers must then determine if the request falls into one of the FMLA’s qualifying leave reasons and/or covered relationships.
Qualifying leave reasons include:
- Absence due to the employee’s own serious health condition, or to care for a family member with a serious health condition
- To bond with a newborn child or after the placement of a child for adoption or foster care
- Qualifying military leave when the employee’s parent, child, or spouse is called to active duty
- To care of an injured service member
If the leave falls into any of these categories associated with caring for another person, the employer must then check if the person for whom the leave is being taken is a covered relationship/family member.
Covered relationships include:
- Biological, adoptive, step or foster parents, or someone who was a parent-figure or guardian (referred to as “loco parentis”) to the employee. NOTE: This does not include in-laws.
- A spouse, defined as those recognized as such in the state where the individual was married. This includes individuals in a same-sex marriage or common-law marriage.
- Biological, adopted, step or foster children, or a person of whom the employee is a legal guardian or is currently standing in “loco parentis” for – this can be a child under 18 or a person 18 years of age or older who is incapable of self-care due to a mental or physical disability.
- Please note the definition of a child for FMLA military leave is slightly different because it includes coverage for a child of any age. Military caregiver leave is accessible to employees who are parents, spouses, children or next of kin of a service-member.
Step 3: Certification
The last stop on your roadmap is certification. If the person is eligible AND has a qualifying leave reason and covered relationship, the employer may require certification to finalize approval of the leave. Certification forms for absences taken for the employees’ own serious health condition, bonding, and to care of a family member are populated by the Employer, Employee, and the Heath Care Provider. Military Exigency and Care-giver forms require completion from the parties involved in the absence. Forms should be submitted to the employer within 15 days.
Please remember that leave can be taken continuously, intermittently, or on a reduced schedule and this information should be provided within the certification.
Certification comes with its own set of timelines and notices. No need to reinvent the wheel, simply use the DOL certification forms provided here: https://www.dol.gov/whd/fmla/2013rule/militaryForms.htm. And be aware of the timelines for designation, re-certification, and options for second and third options, as outlined in The Employer’s Guide to the Family and Medical Leave Act contained within here: https://www.dol.gov/whd/fmla/employerguide.pdf
Finally, state leave laws vary in eligibility, leave reasons and covered relationships, and certification requirements. Build and apply a roadmap tailored to each leave for which the employee may qualify. When facing a complex situation, make the investment of consulting with counsel.