As an employer, you must comply with the FMLA if you have 50 or more employees for each working day during each of 20 or more calendar work weeks in the current or preceding calendar year.
The FMLA grants an eligible employee up to 12 work weeks of unpaid leave during a 12-month period for:
- medical leave due to an employee’s own serious health condition;
- the birth, adoption or foster care placement of a child;
- the care of that employee’s parent, spouse or child with a serious health condition; and
- any qualifying exigency for a spouse, child or parent of a servicemember who is on covered active duty — or notified of an impending call or order to covered active duty — as a member of the reserve or regular components of the Armed Forces.
Employers must choose from four methods to measure the 12-month period:
- the calendar year;
- any fixed 12-month period, such as a fiscal year;
- the 12-month period “measured forward” from the date an employee’s first FMLA leave begins; or
- a "rolling" 12-month period measured backward from the date an employee uses any FMLA leave.
Leave to care for a healthy child after the birth or placement of a child for adoption or foster care must be taken within 12 months of the child’s birth or placement. Even though employers must allow intermittent or reduced leave schedules if there is a medical need for such schedules, or based on the qualifying exigency, employers have the option of whether or not to allow intermittent or reduced leave schedules for leaves to bond with a child due to birth or placement for adoption or foster care.
Military caregiver leave
In addition to the above "regular" FMLA entitlement, an eligible employee may take up to 26 weeks of unpaid military caregiver leave during a single 12-month period to care for a spouse, child, parent or next of kin who is a covered servicemember. A covered servicemember is a member or veteran of the Armed Forces (including a member of the National Guard or 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. If the military member is a veteran, they must have been discharged or released under conditions other than dishonorable any time during the five-year period prior to the first date of FMLA leave taken by the eligible employee
The single 12-month period is measured forward from the first day of leave to care for the servicemember on a per-member, per-injury basis. During this single 12-month period, eligible employees may take only a combined maximum of 26 weeks of leave under both their regular FMLA entitlement and their military caregiver leave entitlement.
Spouses who are both FMLA-eligible and employed by the same covered employer may be limited to a combined total of 12 weeks of leave if the leave is taken:
- for birth of the employee’s child or to care for the healthy child after birth;
- for placement of a child for adoption or foster care, or to care for the child after placement; or
- to care for that employee’s parent with a serious health condition.
Each spouse is entitled to a full 12 weeks of leave; however, he or she must take only a combined limit of 12 weeks for any of the reasons listed above if the employer has chosen to enforce this provision through their policies. For example, if each spouse took six weeks of leave to care for a healthy newborn child, each could take an additional six weeks of leave due to his or her own serious health condition.
Spouses may also be limited to a combined 26-week leave total during the single 12-month period if leave is taken to care for a covered servicemember with a serious injury or illness.
Communicating the law to your employees
Prominent notice to all employees
Even if you don’t currently have FMLA-eligible employees, as an FMLA-covered employer you must prominently post a notice explaining the FMLA provisions, including how to file complaints. If your workforce includes a significant number of non-English speakers, the notice must also be given in the language they speak. Go to http://www.dol.gov/whd/fmla/index.htm for the workplace poster.
Written guidance to eligible employees
If you have any FMLA-eligible employees and have any written guidance to employees concerning leave rights (such as in an employee handbook), you’re also required to include information concerning FMLA entitlements and employee obligations. If you do not provide written guidance to employees concerning leave rights, you must provide this written guidance when an employee provides notice of the need for leave. You can meet this requirement by giving employees the FMLA Fact Sheet available through your local Wage and Hour Division office of the Department of Labor or online at http://www.dol.gov/whd/fmla/index.htm.
Full employer notice requirements are outlined in the FMLA Regulations (CFR Sec. 825.300). For copies of optional forms you may use to respond to an employee’s request for leave visit http://www.dol.gov/whd/fmla/index.htm.
Eligibility and rights and responsibilities notice to employees requesting leave
In response to an employee’s notice of the need for leave, you must also provide a written response to the employee within five business days of the employee’s notice. The written response must detail the employee’s eligibility or ineligibility for leave under the FMLA, specific expectations and obligations of the employee, and explain any consequences of failing to meet the obligations, including but not limited to:
- that the leave will be counted against the employee's FMLA entitlement;
- any medical certification or documentation requirements and consequences for not meeting the requirements;
- the employee's right to substitute paid leave, and whether you will require substitution, and the conditions related to any substitution;
- any requirement for the employee to make premium payments to maintain health benefits, the arrangements for making such payments, and possible consequences for failure to make payments on a timely basis;
- any requirement for the employee to provide a fitness for duty certification to be restored to employment;
- the employee’s status as a "key employee" and the potential consequence that restoration may be denied following FMLA leave, explaining the conditions for such denial;
- the employee's right to restoration to the same or equivalent job upon return from leave; and
- the employee's potential liability for payment of health insurance premiums paid by the employer during the employee’s unpaid FMLA leave if the employee fails to return to work after taking FMLA leave.
Health conditions that qualify
The FMLA requires you to grant leave if your FMLA-eligible employee (or his or her covered family member) has a serious health condition certified by a health care provider.
Under the FMLA, a serious health condition is an illness, injury, impairment or physical or mental condition that meets the FMLA criteria of one of the following categories:
- overnight/inpatient hospital care;
- incapacity and treatment (incapacity of more than three full consecutive calendar days with treatment plus either: (a) a second treatment by the health care provider or (b) a regimen of continuing treatment, for example, a course of prescription medication. The first, or only, treatment must take place within seven days of the first day of incapacity, and the second treatment, if applicable, must take place within 30 days of the first day of incapacity);
- pregnancy incapacity or prenatal care;
- chronic conditions requiring treatments at least twice a year;
- permanent or long-term conditions; or
- conditions requiring multiple treatments.
The specific criteria necessary to meet each of these categories are outlined in the FMLA Regulations (29 CFR 825.115).
Here's a list of some of the conditions that can qualify an employee for leave provided the specific criteria of one of the above serious health condition categories are met:
- Alzheimer’s disease
- mental illness
- restorative dental or plastic surgery after an injury
- removal of cancerous growths
- substance abuse (treatment only)
However, since the same illness can have different effects on different people and will not always meet the criteria of an FMLA "serious" health condition, you will need to evaluate the medical certification of the condition for each patient on a case-by-case basis.
Generally, unless complications arise, illnesses like cold, flu, routine dental problems and headaches other than migraines do not usually meet the definition and criteria of an FMLA serious health condition.
Qualifying exigency leave
An employee’s 12-week FMLA entitlement includes qualifying exigencies arising out of the fact that the employee's spouse, son, daughter or parent is on covered active duty or has been notified of an impending call or order to covered active duty.
Under the terms of the statute, qualifying exigency leave is available to a family member of a military member in the regular or reserve components of the Armed Forces during deployment to a foreign country. All qualifying exigencies must be necessitated by the covered active duty or call to covered active duty status of the covered military member.
Qualifying exigencies include:
- issues arising from a covered military member’s short notice deployment (i.e., less than seven days of notice) for a period of seven days from the date of notification;
- military events and related activities, such as official ceremonies, programs or events sponsored by the military, or family support or assistance programs and informational briefings sponsored or promoted by the military, military service organizations or the American Red Cross;
- certain childcare and related activities such as arranging for alternative childcare, providing childcare on a non-routine, urgent, immediate need basis, enrolling or transferring a child in a new school or day care facility, and attending certain meetings at a school or a day care facility;
- making or updating financial and legal arrangements to address a covered military member’s absence;
- attending counseling provided by someone other than a health care provider for oneself, the covered military member or the child of the covered military member;
- taking up to 15 days of leave to spend time with a covered military member who is on short-term, temporary rest and recuperation leave during deployment;
- attending to certain post-deployment activities, including attending arrival ceremonies, reintegration briefings and events, and other official ceremonies or programs sponsored by the military for a period of 90 days following the termination of the covered military member’s covered active duty status, and addressing issues arising from the death of a covered military member;
- caring for the parent of a covered military member, such as arranging for alternative care; providing care on a non-routine, urgent, immediate need basis; admitting or transferring to a new care facility; and attending certain meetings with staff of a care facility; parent must be incapable of self care; and
- any other event that the employee and employer agree is a qualifying exigency.
Even if you don’t have eligible employees, as an FMLA-covered employer you must still document your FMLA compliance. No specific forms are required, but your records must comply with section 11(c) of the Fair Labor Standards Act. This means that you should keep your records for three years, being sure to include:
- basic payroll and employee data;
- dates of FMLA leave (and hours if taken in increments less than a full day);
- copies of leave notices submitted by employees;
- your employee benefit policies and practices for paid and unpaid leaves;
- premium payments for employees' benefits; and
- records of FMLA leave disputes.
Restrictions on what you can do
According to the law, your company can't:
- interfere with your employees' FMLA rights;
- discharge or discriminate against your employees for opposing or disputing unlawful practices;
- deny employees the opportunity to exercise any of their rights under the law; or
- retaliate against any of your employees who exercise their FMLA rights.