How the FMLA Applies to Your Small Business

What is the FMLA?

The FMLA is a federal law, governed by the United States Department of Labor (DOL), that allows employees to take up to 12 weeks of unpaid leave for family and medical reasons, provided the employer and employee meet certain requirements. For the law to apply to your business, 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,” said Bryn Goodman, partner at Fox Rothschild LLP. “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, usually a business with more than 50 employees, are eligible for FMLA benefits if they meet the following requirements: They worked for the covered employer for at least 12 months — either consecutively or nonconsecutively — and 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 have a qualifying reason for the leave. 

Qualifying reasons for taking leave under the FMLA include: 

• The birth of the employee’s child
• The adoption or foster care placement of a child with the employee
• To care for the employee’s spouse, child or parent who has a serious health condition
• To recover from the employee’s own serious health condition that prevents them from performing their job. [Read related article: Employer’s Guide to Disability Leave]
• A qualifying exigency arising out of the military service of the employee’s 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 service member’s spouse, child, parent or next of kin

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 qualifying 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, a 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 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 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 at 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 said the most common reasons an employer may deny an employee’s leave request are: 

• The employer is not covered by FMLA
• The employee does not meet the eligible FMLA requirements
• The employee is not seeking leave for a qualifying reason
• The employee does not provide proper notice of leave
• The employee does not authorize the employer to contact their healthcare provider or fails to authorize release of medical certification

“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.” 

What are FMLA legal protections?

The FMLA includes certain protections for employees who request and take leaves. For example, 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, employee 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 (such as paying for childcare) and attorney’s fees.” 

Also, employers may not retaliate against employees who take leave under the FMLA. If you fire an employee in retaliation for an FMLA request or leave, you may be responsible for employee reinstatement, back pay and liquidated damages. While the DOL 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 your specific business, your human resources department and your employees. This is one of the reasons hiring a business lawyer is always a good idea for business owners.

Source interviews were conducted for a previous version of this article.