FMLA Compliance Review
Director of Compliance
There are more than 70 FMLA regulation sections in Title 29, Part 825 of the Code of Federal Regulations, which implement the FMLA, and many of these sections contain numerous subparts.
Understanding all these regulations can be daunting for employers, causing them to make frequent phone calls to their lawyers for legal advice. Here is a quick summary outlining important information Human Resource teams must know to understand and comply with the FMLA.
The FMLA covers private employers who employ 50 or more workers in 20 or more workweeks in the current or preceding calendar year, as well as public agencies and schools, regardless of the number of employees. Once a private employer meets the 50-employee threshold, it will remain covered, even if it drops below 50 employees, as long as it employed 50 or more employees in 20 or more workweeks in either the current or previous calendar year.
Employer General Notice Requirements
FMLA-covered employers must provide a general notice to their employees advising them of their FMLA rights. To do so, they must (1) display or post a general notice, such as a poster, in a conspicuous place where employees are located; and (2) provide a written general notice to any FMLA-eligible employees, such as in an employee handbook or other written leave materials. Employees must receive a general notice upon hire if an employer does not have a handbook or written materials.
To be eligible for FMLA leave, an employee must: (1) work for a covered employer; (2) have worked for the employer at least 12 months as of the date the FMLA leave is to begin; (3) have a minimum of 1250 hours of service for the employer during the 12 months immediately preceding the leave; and (4) work at a location where the employer employs at least 50 employees within 75 miles of that worksite.
Requesting FMLA Leave
An employee’s request for FMLA leave may be oral or written. The first time an employee requests leave for a qualifying reason, they do not have to mention the FMLA specifically but must provide enough information for the employer to know the time off may be covered by the Act. Employers may require employees to comply with their usual and customary policies for requesting leave unless unusual circumstances prevent them from doing so.
After determining an employee’s FMLA eligibility status for a requested leave, the employer must inform the employee, orally or in writing, whether they are eligible. For this purpose, employers may use the Department of Labor’s model “Notice of Eligibility & Rights and Responsibilities” form.
Reasons for Leave
Eligible employees may take up to 12 workweeks of FMLA leave in a 12-month period for these reasons:
- The birth of a child and care for the child within one year of birth
- The placement of an adopted or foster child with the employee and to bond with the child within one year of placement
- A serious health condition rendering the employee unable to perform the functions of their position, including incapacity due to pregnancy and prenatal care
- To care for their spouse, son, daughter, or parent with a serious health condition, including incapacity due to pregnancy and for prenatal care
- A qualifying exigency arises because the employee’s spouse, son, daughter, or parent is a military member on covered active duty or call to covered active duty
Additionally, FMLA military caregiver leave allows an eligible employee who is the spouse, son, daughter, parent, or next of kin of a covered servicemember with a serious injury or illness to take up to 26 workweeks of unpaid leave during a “single 12-month period” to care for the servicemember. Employees are limited to 26 workweeks of leave for any FMLA-qualifying reason during this single 12-month period.
The FMLA certification process allows employers to obtain information regarding the reason for an employee’s leave, including the duration of the absence. Employers may require a certification when an employee requests leave for their serious health condition, the serious health condition of a family member, and for qualifying exigency and military caregiver leave reasons. Certification may not be requested for leave to bond with a healthy newborn, adopted, or foster child. The Department of Labor has model forms employers can use when requesting certification.
Employees must provide the certification information to the employer within 15 calendar days after the employer’s request, unless it is not practicable under the circumstances to do so, despite the employee’s diligent good faith efforts. Upon receiving the certification, employers must advise the employee if the certification is incomplete or insufficient and give the employee seven calendar days to correct any deficiency (unless not practicable under the circumstances despite the employee’s diligent good faith efforts). The employer may deny the FMLA leave if an employee fails to provide a complete and sufficient certification.
Recertification of the need for leave may generally be requested by employers no more often than every 30 days and only in connection with an employee’s absence. Employers may request recertification for an employee’s absence in fewer than 30 days if the employee requests a leave extension, the circumstances described in an earlier certification changed significantly, or the employer receives information casting doubt on the employee’s stated reason for the leave or the continuing validity of the existing certification.
In some cases, employers must wait more than 30 days to request recertification. If the original certification specifies that the minimum duration of the serious health condition will exceed 30 days, employers must generally wait until the minimum duration expires before requesting recertification.
When leave for an employee’s or family member’s serious health condition lasts beyond a leave year, the employer may require a new certification in each subsequent leave year if the leave is for the same reason. The same certification rules apply to annual certifications as to the initial certification.
Group Health Plan Continuation
During FMLA leave, employers must maintain the employee’s health coverage under any group health plan on the same basis as if the employee had not taken leave. “Group health plan” means any plan of, or contributed to by, an employer (including a self-insured plan) to provide health care (directly or otherwise) to employees, former employees, or the families of employees or former employees.
When an employee returns from FMLA leave, they must be restored to the same position they held when the leave began or to an equivalent job. An equivalent job is virtually identical to the original position in terms of pay, benefits, and other terms and conditions of employment.
Employers must maintain FMLA records for at least three years. The records need not be retained in any particular form and may be maintained electronically or in any other format, provided it includes all the required information.
The FMLA is a robust law. Successful FMLA administration requires employers to respond skillfully and consistently to leave requests, and to stay up to date with changes in the law, to avoid the headaches and high costs associated with non-compliance. To ensure your continued compliance and that you have not slipped into any non-compliant practices, it is a good idea to audit your FMLA leave practices every year or two.
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