The federal Family and Medical Leave Act (FMLA) requires covered employers to provide unpaid job-protected leave to eligible employees. Several states have enacted similar laws. Below, we address employer coverage, the circumstances in which employees may take leave, and other family and medical leave basics for small employers.

Employer Coverage:

The federal FMLA applies to employers with 50 or more employees. However, some states have enacted their own family and medical leave laws, some of which cover smaller employers. For example, beginning in 2021, Massachusetts will grant virtually all employees job-protected leave for certain family and medical purposes. Separately, many states and local jurisdictions have enacted laws that require employers to provide paid sick leave and/or other types of leave to employees.

Employee Eligibility:

To be eligible for federal FMLA, employees must work:

• For a covered employer for at least 12 months;
• At least 1,250 hours during the previous 12 months; and
• At a location where the company employs 50 or more employees within 75 miles.

State family and medical leave laws may have different eligibility criteria.

Basic Leave Entitlement:

Covered employers must provide an eligible employee with up to 12 weeks of FMLA leave each year for:

• The birth of a newborn child or for placement of a child for adoption or foster care;
• To care for a spouse, son, daughter, or parent with a serious health condition;
• The employee's own serious health condition; or
• To attend to obligations arising because a spouse, son, daughter, or parent is a military member on covered active duty or called to covered active duty status.

Note: Eligible employees are entitled to up to 26 weeks of FMLA leave to provide care for a family member who is a covered member or veteran of the armed forces who has an injury or illness that was incurred or aggravated while on active duty.

Employee Notice:

If the need for FMLA leave is foreseeable, an employee must provide at least 30 days' advance notice. When the need for leave is unforeseeable, employees are required to provide as much notice as is practical based on the facts and circumstances.

Employer Notice:

There are several federal FMLA notice requirements for employers:

• Poster. Covered employers must post a general FMLA notice in their workplace, even if they have no employees eligible for FMLA. Employers must also include the general notice in employee handbooks, or, if no handbook exists, distribute a copy of the notice to each new hire. Employers may satisfy these requirements by posting and distributing the notice electronically, provided all of the other requirements are met.
• Employee eligibility and rights and responsibilities notice. When an employee requests FMLA leave or the employer acquires knowledge that leave may be for a FMLA purpose, the employer must notify the employee of their eligibility to take leave, and inform the employee of their rights and responsibilities under the FMLA (see Form WH-381).
• Designation notice. When the employer has enough information to determine that leave is being taken for a FMLA-qualifying reason, the employer must notify the employee within five business days that the leave is designated, and that it will be counted as FMLA leave (see Form WH-382). If the requested leave doesn't qualify under the FMLA, the notice may be a simple written statement that the leave doesn't qualify as FMLA leave and will not be designated as such.

State family and medical leave laws may have different notice requirements.

Certification:

An employer may require medical certification when FMLA leave is taken to care for the employee's covered family member with a serious health condition, due to the employee's own serious health condition, or for military family leave purposes. The employee has the responsibility to provide the employer with complete and sufficient certification and failure to do so may result in the denial of FMLA leave. If an employer is unable to determine whether the leave request should be designated as FMLA leave because the certification is incomplete or insufficient, the employer must state in writing what additional information is needed to make the certification complete and sufficient (employers may use the designation notice for this purpose). If you require certification, you must give notice of the requirement and identify any consequences for failing to provide adequate certification.

The Department of Labor provides model notices that employers can use to request certification. These forms are available in the Forms and Documents section of HR411^®.

Benefits Continuation:

During FMLA leave, an employer must maintain the employee's group health plan coverage under the same conditions as if the employee had been continuously employed during the entire leave period.

Job Reinstatement:

Upon return from FMLA leave, the employee must be restored to his or her original job, or to an "equivalent" job (virtually identical to the original job in pay, benefits, and other terms and conditions of employment).

Paid or Unpaid Leave?

Leave under the FMLA is generally unpaid. However, employees may be entitled to pay or wage replacement benefits under another employer policy or a state or local law. For example, several jurisdictions require employers to provide paid sick leave and/or paid family leave to employees. Employees generally have the right to substitute accrued paid leave for unpaid FMLA leave.

Coordination with Other Laws:

To prevent employees from stacking leaves (returning from one leave only to go out on another type of leave for the same issue), generally when employees are entitled to leave under the FMLA and another law, the leave may run concurrently. To run concurrently, the employee must be eligible for both types of leave and the reason for the leave must be covered by both laws. For example, if the employee suffers a work-related injury and is on workers' compensation leave, the employer may generally count this time against the employee's FMLA entitlement as long the employee is eligible for FMLA leave and the injury qualifies as a "serious health condition." Make sure to review the requirements of all leave laws so that you can properly designate all applicable leave.

Leave Under the ADA:

If an employee's medical condition qualifies as a disability under the Americans with Disabilities Act (ADA), the employee may be entitled to leave as a reasonable accommodation (whether or not the employer is covered by the FMLA). For an employer that is covered by the FMLA, this could mean they must grant additional leave after FMLA leave is exhausted. Employers facing such a situation should consider consulting legal counsel.

Offering Family & Medical Leave Voluntarily:

Employers who aren't covered by a federal, state, or local requirement to provide family and medical leave may choose to offer it voluntarily. If you would like to offer this benefit voluntarily, consider drafting policies and procedures that address the issues covered above and using HR411's sample FMLA policy as a guide.

Conclusion:

Understand the leave laws that apply to your employees and align your policies and practices accordingly.