The Family Medical Leave Act (FMLA) was intended to balance the needs of the workplace with the needs of the family. It allows eligible employees to take up to 12 weeks of unpaid leave for a qualifying reason during any 12 month period. To be eligible an employee must have been at the business at least 12 months (they do not have to be 12 consecutive months) and worked at least 1,250 hours over the past 12 months. For an employer to have to abide by FMLA they have to employ 50 or more employees within a 75 mile radius. FMLA covers both public and private sector employees.
The employer has discretion in regards to what type of 12 month period they want to use out of 4 options:
- Calendar year method (1/1-12/31)
- Any fixed 12 month period (i.e. fiscal year)
- A 12 month period measured forward from the 1st date an employee takes FMLA. The next 12 month period would begin the first time the employee takes FMLA leave after the completion of the prior 12 month periods.
- A rolling 12 month period measured backward from the date an employee uses FMLA leave. Each time an employee takes FMLA leave the remaining leave is the balance of the 12 weeks used during the immediately preceding 12 months.
The military family leave is a single 12 month period that starts the 1st day the leave starts and goes for 12 months regardless of the employers 12 month period established for other types of FMLA leave. The employer must be uniform and consistent with all employees for which 12 month period they utilize. They can change the method they use with a 60 day notice to all employees.
There were 4 original covered reasons someone could have leave as an employee under FMLA:
- For the birth, care and bonding of the newborn child within one year of the birth. This reason applies to both Female and Male employees.
- For the placement of a child for adoption or foster care within 1 year of the placement. This reason applies to both Female and Male employees.
- To care for an immediate family member (spouse (this includes any legally married spouse), child or parent) with a serious health condition.
- To take medical leave when the employee is unable to work because of a serious health care condition.
A serious health condition is defined as “an illness, injury, impairment or physical or mental conditions that involve inpatient care or continuing treatment by a health care provider.
Then in 2009 the National Defense Authorization Act of FY 2008 updated FMLA to include 2 new military leave provisions:
- Permits a spouse, son, daughter or next of kin to take up to 26 weeks of leave to care for a member of the Armed Forces, including the National Guard and the Reserves, who is undergoing medical treatment, recuperation or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness.
- Allows an employee to take FMLA leave for any qualifying exigency arising out of the fact that the spouse, or a son, daughter or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the armed forces in support of a foreign deployment. Under this provision there are 9 categories that are a qualifying exigency:
- Short Notice Deployment- An employee can have leave up to 7 days from the day of notice to address any issue that arises from the short notice deployment.
- Attending Military events and related activities- These can include official ceremonies, programs, events and informational briefings sponsored by the military, military service organization or the American Red Cross that are related to the members deployment.
- Certain children and related activities- this includes arranging alternative care, providing childcare on a non routine, urgent immediate need basis, enrolling in or transfering a child to a new school or daycare facility. The employee does not need to be related to the military members child. However the employee does need to be either the parent, spouse, son or daughter of the military member. The child in question must be the military members child including children through in Loco Parentis.
- Care of the military members parent who is incapable of self care. The employee does not need to be related to the military members parent. However the employee does need to be either the parent, spouse, son or daughter of the military member. The parent in question must be the military members parent including parents through in Loco Parentis.
- Making or updating financial and legal arrangements to address the military members absence.
- Attending counseling for the employee, the military member or the child of the military member when the need arises from the covered active duy of the military member and is provided by someone other than a health care provider.
- Up to 15 days of leave to spend time with military member who is on short term temporary Rest and Recuperation (R&R) leave during deployment. The leave must be at the same time as R&R leave.
- Certain post deployment activities within 90 days of the end of the covered active duty including arrival ceremonies, reintegration, and events sponsored by the military including attending the funeral arriving from the death of a military member.
- Any other event that the employee and employer agree is a qualifying exigency.
The life cycle of FMLA:
- Must first identify if the employer is covered under FMLA
- If the employer is covered they then must make sure they display the poster in a conspicuous location and provide the general notice either in their handbook or as a separate handout at the time of hire.
- The employee ask for FMLA or the employer learns that the leave for an employee might be covered under FMLA. They can do this request in oral or written format. They do not have to specifically say FMLA in their request. If it is a foreseeable leave then at least 30 day notice should be provided.
- Determine Employee eligibility.
- Provide eligibility and rights and responsibility notice to employee. If they are not eligible the employer has to provide to the employee at least 1 reason that it does not qualify. The eligibility notice can be oral or in writing. The employer must provide the eligibility notice within 5 days of the request. The rights and responsibilities must be in writing. The rights and responsibilities is where the employer will let the employee know if they are required by policy to utilize their paid leave concurrently with the FMLA.
- Certification process is optional but if the employer decides to do it they need to notify the employee that a certification will be required. The certification process allows the employer to:
- Obtain information related to the FMLA leave request, including the likely periods of absence, and
- Verify that an employee or employees family member has a serious health condition (or in the case of military family leave that facts exist to support the employees leave.)
Employees are responsible for getting the forms completed and for any cost associated with getting the certification completed. The employee has 15 calendar days to provide the completed certification. Once the employer receives the certification they may:
- Identify in writing that there are deficiencies and ask for corrected info with in 7 calendar days.
- Contact the health care provider to clarify and/or authenticate the certification.
- Get a 2nd opinion at the employers expense if there are concerns about the validity of the certification.
- Get a 3rd opinion at the employers expense if the 1st and 2nd opinions differ.
Employers should not request a certification for leave to bond with a healthy newborn child or a child placed for adoption or foster care. However the employer can request documents to confirm the family relation. An employer can ask for recertification but not more frequently then 30 days. An annual certification with 1st absence in a new 12 month leave year is allowed.
- Determine if the leave request is for an FMLA qualified reason.
- Grant or deny the leave request and provide designation notice to employee.
- Maintain health benefits during leave. The employee is responsible to pay their share of the health plan premiums that the employee paid prior to the FMLA leave. The employer is responsible for making the employee aware of the terms and conditions for payment (i.e. on the same pay schedule, monthly, etc.). If the employee fails to make their payment then the benefits can be terminated.
- If the employer chooses to they can require a fitness for duty certificate to be released back to work that states they are able to perform the essential functions of the job. Restore the employee to the same or an equivalent position at the end of the leave. The equivalent position would have to be similar in terms of pay, benefits, shift and location.
- Maintain proper paperwork.
A great resource to find the full instructions and copies of sample forms is www.dol.gov/whd/fmla. If when you look at this it seems overwhelming and you think you need some help Leadership Arts Associates can partner with you to make the task less daunting. You can reach me at email@example.com or 717-430-2850.