When an employee needs time off work to take care of a medical or family emergency, they may be legally entitled to several weeks of unpaid leave under the Family and Medical Leave Act. It is important to understand if the FMLA applies to your business, what protections it offers your employees and how to comply with it. You also need to be aware of new paid or partially paid leave protections under the Families First Coronavirus Response Act.
What is the Family and Medical Leave Act (FMLA)?
The Family and Medical Leave Act is a federal law that allows employees to take up to 12 weeks of unpaid leave for family and medical reasons, given that the employer and employee meet certain requirements. For the law to apply, you must have more than 50 employees, and the employee requesting leave must have worked at least 1,250 hours during the 12 months prior to the leave. However, there are exceptions.
“Even where an employer does not meet the 50-employee threshold, the employer may be covered when the corporate structure allows for two employers to be considered joint employers,” Bryn Goodman, labor and employment attorney at Fox Rothschild LLP, told business.com. “FMLA covers public agencies as well as private and public elementary and secondary schools, regardless of whether they meet the 50-employee threshold.”
Who is eligible for the FMLA?
Employees who work for covered employers (a business with more than 50 employees) are eligible for FMLA coverage if they meet the following requirements: They worked for the covered employer for at least 12 months (either consecutively or nonconsecutively), they worked for the covered employer for at least 1,250 hours during the 12 months prior to the first day of the requested leave, and they have a qualifying reason for leaving.
Qualifying reasons for leave under the FMLA include the following:
- The birth of the employee’s child
- The adoption or foster care placement of a child with the employee
- To care for their spouse, child or parent who has a serious health condition
- To recover from their own serious health condition that prevents them from performing their job
- A qualifying exigency arising out of the military service of an immediate family member (spouse, child or parent)
- To care for a military member with a serious injury or illness if the eligible employee is the servicemember’s spouse, child, parent or next of kin (26 weeks of leave)
Small business owners should also be aware of the recent Families First Coronavirus Response Act, a response to the COVID-19 pandemic. It contains the Emergency Family and Medical Leave Act (EFMLA), which temporarily expands who may be eligible for leave coverage and paid or partially paid leave.
“From April 1, 2020 through Dec. 31, 2020 only, under the EFMLA, coverage extends to employees who are unable to work (or telework) due to a need to care for a son or daughter under 18 years of age, or over 18 years of age if their son or daughter has a mental or physical disability and is incapable of self-care, if the child’s school or place of care has been closed and another child care provider is unavailable due to the COVID-19 pandemic,” said Goodman.
How does the FMLA work?
For an employee to take leave under the FMLA, the employer and employee must both meet the eligibility requirements, and the employee must have a valid reason for taking the leave. Although the employee is typically required to request FMLA leave before taking it, the employee does not have to use the specific term “FMLA leave” for the request to be valid, said Joseph E. Slater, distinguished professor of law and values at the University of Toledo. For example, “I need time off for my cancer treatments” would be a sufficient FMLA request, Slater said.
FMLA notification obligations
When an employee wants to take leave covered under the FMLA, there are several notification obligations that both the employer and the employee should meet.
- Notice of rights: The employer is responsible for posting a notice of employee FMLA rights in a manner that is obvious and visible to the employee.
- Notice of leave: The employee is responsible for notifying the employer of the need for leave at least 30 days in advance, or as soon as possible.
- Documentation of reason for leave: If an employer requires the employee to provide medical proof to document the reason for taking leave, the employee must typically provide the medical documentation within 15 calendar days.
- Notice of acceptance or denial: After reviewing the employee’s request, the employer must notify the employee within five business days as to whether the leave is covered under the FMLA. If the employer deems the leave not qualified under the FMLA, they must provide a valid reason why.
- Medical documentation to return to work: If the reason for leave is the employee’s own illness, then the employee may be required to provide a medical certification proving their fitness for duty when they return to work.
Length of FMLA leave
The FMLA permits leave in 12- or 26-week increments over a 12-month period; however, it is up to the employer to determine the guidelines for the qualifying 12-month period.
“Many employers use a rolling period to avoid employees taking 12 weeks at the end of one calendar year and another 12 weeks the beginning of the next calendar year,” said Goodman. “Employees eligible for leave to care for a military family member must use leave in a single 12-month period beginning on the first day of the leave.”
FMLA leave may be taken consecutively or intermittently, depending on the employee’s needs and reason for leaving. If the employee provides adequate documentation before the approved FMLA leave, they are often excused from providing additional documentation for intermittent FMLA leave.
“In most cases, intermittent leave requires the employer’s consent,” said Goodman. “If a reduced schedule is due to a planned medical treatment, then the employee must make efforts to schedule the continuing treatment so as to cause the least disruption to the employer’s business operations.”
When can an employer deny the FMLA?
It is not common for an employer to deny an employee’s request for leave under the FMLA, but there are a few instances where it is possible. Goodman listed the most common instances where an employer may deny an employee’s leave request:
- If the employer is not covered by FMLA or EFMLA
- If the employee does not meet the eligible FMLA requirements
- If the employee is not seeking leave for a qualifying reason
- If the employee does not provide proper leave notice
- If the employee does not authorize the employer to contact the healthcare provider or fails to authorize release of medical certification
- If the employer has fewer than 50 employees and permitting leave would jeopardize the financial health of the business (under EFMLA)
“To delay or deny an employee’s request for FMLA leave due to the employee’s failure to provide required notice, the employer must show that it provided the employee with proper notice,” said Goodman. “The employer may satisfy this requirement by offering evidence that it complied with general posting requirements.”
FMLA legal protections
When an employee returns to work after taking eligible family medical leave, they are entitled to their previous job, with the same responsibilities, working conditions, privileges, salary, benefits and status. Goodman noted an exception to this, though.
“FMLA provides an exemption from the requirement that an employee must be restored to his prior position where the employee is considered a ‘key employee’ and refusal of job restoration is necessary to prevent ‘substantial and grievous economic injury,'” she said. “The employer must notify the employee of its intent to deny restoration at the time it determines that job restoration is not possible.”
Employers who violate the FMLA may be subject to damages, according to Slater, such as “orders granting leave improperly denied, and money damages for expenses caused by denying leave (e.g., paying for child care) and attorney’s fees.”
Also, employers may not retaliate against employees who take leave under the FMLA. If you fire an employee in retaliation to an FMLA leave, you may be responsible for employee reinstatement, back pay and liquidated damages. While the Department of Labor is authorized to sue on behalf of individuals under the FMLA, Slater said the vast majority of FMLA cases are brought by the employees themselves.
To ensure FMLA compliance and mitigate legal repercussions, speak to a legal expert who can help you understand how the FMLA applies to you, your human resources department and your employees.