The Family Medical Leave Act and Employer Compliance

The Family Medical Leave Act (“FMLA”) is a federal law that applies to employers with 50 or more employees and gives employees the right to unpaid leave for certain family or medical reasons, along with a right to return to their job or an equivalent position. If an employee’s leave request qualifies for FMLA leave, the employer must grant up to 12 weeks of unpaid leave within any 12-month period to an eligible employee for certain family or medical reasons and must maintain the employee’s pre-existing group health benefits.

The FMLA and its regulations are detailed and can be difficult to interpret in some situations. This article provides a brief overview of the FMLA and cannot be considered legal advice. If you are an employer and have questions about an FMLA request, reinstatement to work, or related matters, the best approach is to obtain advice from a legal professional to ensure compliance. For a consultation regarding the FMLA, please contact Endurance Business Law, PLLC, via our Contact page or by calling (480) 997-2951.

The General Rule: The Employee’s Right to Leave under the FMLA

General Rule. At the heart of the FMLA is a legal right that requires employers grant employee requests for up to 12 weeks of unpaid leave within any 12-month period if the employee is eligible for FMLA leave and the request falls under one of the following family or medical reasons:

• The birth of a child if the leave is taken within one year of the child’s birth;

• The placement of an adopted or foster child with the employee if the leave is taken within one year;

• A serious health condition affecting the employee;

• The need to care for a spouse, child, or parent with a serious health condition;

• Certain conditions arising from an employee’s spouse who is on active-duty status in the military.

Serious Health Condition. A “serious health condition” is defined as “an illness, injury, impairment, or physical or mental condition” that: (1) affects the employee’s ability to perform one or more essential function of his or her job; and (2) involves inpatient care or ongoing treatment by a medical provider. Under this definition, cosmetic treatments generally are not serious health conditions, while dental restoration or plastic surgery after an injury is a serious health condition.

Eligibility Requirements. To be eligible for FMLA leave: (1) the employee must have worked for the employer for at least 12 months; (2) the employee must have worked at least 1,250 hours in the 12 months before the FMLA leave commences; and (3) the employer must employ at least 50 employees within 75 miles of the employee’s work location.

Intermittent Leave or Reduced Work Schedule. An employee may request intermittent leave or a reduced work schedule if the request qualifies for FMLA leave and the cumulative total leave does not exceed 12 weeks. To accommodate intermittent leave or a reduced work schedule, the employer may temporarily transfer the employee to another position if the employee is paid an equivalent pay rate and his or her benefits are maintained.

Covered Employers. As noted above, the FMLA applies only to employers with 50 or more employees in 20 or more workweeks of the current calendar year or the prior calendar year.

Requests for FMLA Leave

Processing FMLA Leave Requests. The steps for processing an FMLA leave request are well established. The U.S. Department of Labor has posted an Employer’s Guide to the Family Medical Leave Act to assist employers with FMLA leave requests. The Department of Labor has also created two forms that can be used by employees and employers to help insure compliance with the FMLA: (1) Form WH-380-E for leave requests involving the employee’s serious health condition; and (2) Form WH-380-F for leave requests involving a family member’s serious health condition. All FMLA forms can be found here.

Advance Notice of FMLA Requests. Employees are required to submit FMLA leave requests well before the leave will begin whenever the need for leave is foreseeable, but the FMLA does not state how many days’ notice of the request must be given by the employee. In general, employers can follow their internal procedures for advance notice of other leave requests, such as requests for vacation. Employees can request FMLA leave in circumstances where the need for leave was not foreseeable. Employers often have policies requiring employees to use all other available leave before using FMLA leave.

Certification from a Healthcare Provider. Employers may request certification from a healthcare provider as evidence of the employee’s serious health condition or the immediate relative’s serious health condition. The employee must provide the certification within 15 days unless the employee can show a good reason why additional time is needed. The employer must notify the employee in writing of any deficiencies in the completeness of the certification within five days after receipt and allow time for the employee to overcome the deficiencies.

For more detailed information on the process, please see the Department of Labor’s Employer’s Guide.

Reinstatement and an Equivalent Position

Upon completion of the FMLA leave, the employee has the right to reinstatement to the same position or an equivalent position with the same pay and benefits. An employer cannot terminate or make an adverse employment decision affecting the employee during the FMLA leave unless the employer can show that the employee would not have been employed for some unrelated reason when reinstatement was requested. For more information on reinstatement, please see the Department of Labor’s Employer’s Guide.

Conclusion

The FMLA was enacted to help employees balance their work responsibilities with their family obligations. Although employers can expect employees to work in support of achieving the employer’s goals and objectives, employers also need to comply with laws and regulations that protect employees and their families. Often, routine FMLA leave requests can be handled and processed without legal assistance, especially if the employer is large enough to employ experienced and well-trained human-resources personnel. The FMLA and its regulations, however, are detailed, can be difficult to interpret, and some FMLA leave issues do not neatly fit the regulatory scheme. To minimize the chances of an FMLA claim, the best approach for an employer is to seek advice from a lawyer if any question arises about whether and how the FMLA applies to an employee’s request for leave or reinstatement. Attorney James D. Griffith at Endurance Business Law, PLLC, can provide advice and guidance on the legal aspects of the FMLA and an employee’s request for leave, reinstatement, and other questions about the FMLA. To set up a paid consultation, please call our office at (480) 997-2951 or use the Contact form on this website. If we establish an attorney-client relationship, the consultation fee will be deducted from the fees for our services.