Family and Medical Leave Policies

Learn the nuances of medical leave before you create a company policy

Before you set a sick leave or maternity policy for your business, make sure you understand what’s required under the federal Family and Medical Leave Act (FMLA). The act guarantees eligible employees 12 weeks of unpaid leave to take care of themselves or family, and the right to have an equivalent job back. It has also resulted in a flurry of lawsuits involving small companies.

You may be surprised at who is covered by FMLA — for example, fathers of newborns and members of active-duty military families even when no one is sick — and the implications FMLA has for other policies you set, such as handing out bonuses.

Some companies use FMLA as a starting point and offer more generous leave policies; others have fought to keep a tight lid on family and medical timeouts.  Either way, here are some of the basic rights and responsibilities:

Employer basics
Employers with 50 or more employees within a 75-mile radius must follow FMLA and notify staff about the law. A company may contact the health care provider to verify an employee’s medical condition and may require a "fitness for duty" certification before putting the employee back in an equivalent job.

Employee basics
Employees can’t just disappear for medical leave but must follow your standard request procedure. They must be suffering from a serious medical condition and may come back for light-duty work without subtracting from protected time off.

The U.S. Department of Labor website has a detailed summary of FMLA, including covered conditions and related issues. Here are some keys to consider:

Set your birth or adoption leave policy
FMLA protects unpaid leave for the birth or adoption of a child.  Some companies pay employees during pregnancy leaves (typically for six weeks or less) and some not only pay during adoption leaves but reimburse adoption expenses.

Decide who is "family"
FMLA is fuzzy on who’s "family." For instance, it says that a "husband" may take a leave to assist with a difficult pregnancy. Some companies extend family leave benefits to unmarried or same-sex partners to take care of a partner or child.

Set your compensation policy for leaves
You may require an employee to first use up paid leave as part of the mandated 12 weeks off, and you must pay for earned leave if requested. You can prorate bonuses based on company-wide production goals but you can’t disqualify an employee for a bonus because of FMLA-protected leave.

What’s a serious condition?
How sick does an employee have to be to qualify? This point has been hotly contested. The Department of Labor issued a list of common ailments (like the flu) that definitely don’t count, but hasn’t been more specific than that. One definition is three consecutive full days of incapacity requiring two visits to a health care provider. The two visits must take place within 30 days and the second must be initiated by the doctor not the patient.

Know the special rights of military families
FMLA extends wider benefits to families of active-duty, National Guard and Reserve military. For an injury in the line of duty, family members may take up to 26 weeks in a 12 month period to give care.

Watch out for state and other conflicting laws
Big warning here: State laws may be more generous than FMLA and courts have held that employers must grant the wider rights if offered. Disability and workers’ comp laws may also cover medical leave, and states that sanction same-sex marriage may require you to write your leave policies accordingly.

Inform employees about family and medical leave policies 
This one is bigger than it looks. Federal regulations are specific about the kinds of notifications you must provide under FMLA, and failure to follow them can be interpreted as denying those rights and land you in court. First step: Get the Department of Labor’s official FMLA workplace poster.

Jeff B. Copeland is a content specialist at Business.com, where small businesses find solutions in more than 65,000 business categories.

Find more family and medical leave policy resources for your small company at Business.com, the Internet’s largest business-to-business website. Business.com reaches 40+ million users monthly online and is home to over 35,000 how-to guides that help small business owners solve problems and find opportunities.

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Copyright © 2011 Business.com, Inc. All Rights Reserved.

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