What is FMLA:
FMLA is one of two reasons for employees to take an unpaid leave while remaining qualified for full job security. The Family and Military Leave Act applies to companies with 50 or more employees with covers individuals for up to 12 weeks of unpaid time off.
Who is qualified for FMLA?
Eligible employees must have worked for the company for at least 12 months and clocked 1,250 hours of work, approximately 24 hours per week.
The 12 months can be defined as:
- a fiscal year
- a year mandated by the state
- an employee’s anniversary
- a rolling period from the first FMLA leave of an employee
An individual can file for FMLA by reason of the birth of child, the adoption or foster care of a child, the caring for a child, the serious illness of a spouse or parent or convalescence after an employee’s serious health condition.
Responsibilities of the employer:
FMLA posters must be visible around the workplace and placed in a general notice to keep employees informed.
Employers have the option to require an individual to take their paid leave before their FMLA.
Example: An employee using their 2 weeks of paid leave when they start FMLA, therefore there would be a remaining 10 weeks of unpaid leave.
Keep in mind, that the laws to be adhered and the state laws regarding FMLA are put in order to most benefit the employee.
Responsibilities of the employee:
In all foreseeable circumstances, such as the birth of a child, individuals must notify their employer at least 30 days prior. In the event of unforeseeable leave, the employee should follow the company policy, writing or verbal, on absence call-in.
The employee should provide medical certification from their health care supplier which should be given to the appropriate administrator or HR professional, this should not be given to a supervisor. If there is question as to legitimacy, employers may ask for submittal of medical recertification.
In some circumstances, employees may needs to take intermittent leave for medical treatments. This allows for the option of time to be deducted in hours or day. An employee may also choose to work part-time and deduct the remaining hours from FMLA.
If an employee chooses the part-time option, they can be transferred to another department during this time frame, however they must receive the same pay and benefits as their regular position. The employee can then be reinstated to their original job when the FMLA period ends.
FMLA Benefit Retention:
Employees retain all of the same benefits while on leave and therefore must continue to pay any portion of those benefits.
The employer can opt to pay their portion until the individual returns. FMLA leave should be counted towards any benefit based on time worked.
Upon return from FMLA:
The employee must be reinstated to their original or a job with equal responsibility. Employers must compensate for any increase in cost of living during the leave. However, the employer does not have to give increases for seniority, length of service, or work done while they were absent.
If the employee is behind on new skills, training needs to be provided to the employee, payment should be made by who would have paid had the employee not been on leave. If the employee should return with any physical or mental impairment the employer will accommodate the individual until the ADA takes over. As a side note, workers compensation cases are also part of FMLA and reduces the available time that is allocated to FMLA.
Employers cannot refuse to reinstate an employee upon return from FMLA. However, if the employee had noted disciplinary issues before leave, the employer may give notice upon return. Employers need to document these actions and are required to be consistent with the treatment of employees who are on FMLA and those who are not.
The DOL does not require any special forms to be completed or submitted, but the company should keep detailed documentation should any question or lawsuit arrive from the FMLA leave.
Documentation should include basic payroll and identification data of the employee; name, address, job title, rate of pay, hours worked per day, deductions and net pay. The dates of leave from FMLA should be included but maintained separately from paid leave.
In the employees file, keep all recertifications and correspondence during the FMLA leave. All of the above documentation should be kept with a copy of company policy of employee benefits and personnel practices regarding paid and unpaid leave. Per the Sarbanes-Oxley Act, information cannot be destroyed as it could be used as evidence in a lawsuit.