Family and Medical Leave Act (FMLA)

Chase Cragun
Chase Cragun, VP of Recruiting USU MHR
Brent Watson
Brent Watson

Table of Contents

You’ve probably heard about the Family and Medical Leave Act. This law can be challenging to understand. Does it apply to your company, and if so, how do you stay in compliance with it? What are the consequences if you don’t? Here are the basics to know as you begin to learn about this important aspect of HR work. Disclaimer: The below article on FMLA is not, nor should be used as, official training material for the FMLA certification test as offered by the Department of Labor. This is simply information on the basics of FMLA. Consult DOL.gov if you wish to pursue an actual FMLA certification or want the fine details.

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What Is the Family and Medical Leave Act (FMLA)?

FMLA (Family Medical Leave Act) is a legal right given to certain employees that allows them to take time off of work for medical reasons. If an employee qualifies for FMLA leave, they are allowed to take up to 12 weeks a year away from work without the company being able to fire, dock pay, or demote them. FMLA leave is generally unpaid, unless the employee decides to use vacation pay for the time absent.

The Wages and Hours Division oversees this law under the jurisdiction of the U.S. Department of Labor.

In this article, we will cover which organizations fall under FMLA, how employees qualify, circumstances that are eligible for FMLA, and how to stay up to date with changes in the law.

FMLA History

The Family Medical Leave Act was passed and signed into law by President Clinton in 1993. The movement began more than a decade earlier but rarely received enough bi-partisan support to get through Congress. Although FMLA can apply to both men and women for varying circumstances, it was mainly women who made the significant push for the movement during the time frame. The Women’s Legal Defense Fund (now known as the National Partnership for Women & Families) was particularly powerful in its influence to pass this law.

Why HR Needs to Understand FMLA

Even if your company is not mandated to provide it, all HR professionals must know the basics about FMLA. Below we cover a few reasons why understanding FMLA is essential.

  • It is a legal right for employees. While not all companies are required to adhere to FMLA rules, any company that has over 50 employees is. Not granting FMLA to employees who qualify for it can expose the company to serious potential lawsuits.
  • HR is in charge of managing FMLA. It is the job of HR to handle all FMLA cases and not that of other management. An employee in the HR department needs to become FMLA-certified by the Department of Labor in order to legally administer it.
  • Chances are you’ll run into it at some point or another. If you work in HR, particularly for a large company, you are likely to be assigned to work with FMLA in one way or another. Knowing FMLA will impress your company management.
  • Potential liability. Incorrectly administering FMLA can expose your company to federally-imposed fines of $10,000 or more.

Complying with FMLA

The first thing you need to know is if your company falls under FMLA.

  • Government agencies. FMLA applies to all local, state, and federal agencies.
  • Private employers. If your organization has 50 or more employees, you are likely required to offer FMLA. The employee count includes those individuals who work remotely but live within 75 miles of an office location that has at least 50 people.
  • Schools. Both public and private elementary and secondary school employees are eligible to take FMLA leave regardless of employee count.

Company Requirements

If your company falls under FMLA, you’re required to provide notice about your employees’ rights under FMLA in two different ways.

  1. Display a general informative poster that covers the employee’s rights under FMLA. The Wages and Hours Division has a poster in English and Spanish on their website. The poster needs to be easily visible and accessible. Most employers post them in their break room. If a significant portion of your employee population does not read or write in English, you need to provide a poster in their language. This poster needs to be displayed even if you do not have any eligible FMLA employees.
  2. Provide a general notice to FMLA-eligible employees about their rights. Most companies accomplish this by having a section discussing FMLA in their employee handbook or alongside their leave and benefits. If your organization doesn’t have either or these, inform your employee of their rights when they are hired.

Administering FMLA

Assuming your organization falls under FMLA, let’s review some best practices for administering it.

  • Educate yourself. Set aside sometime every week to familiarize yourself with the employer’s and employee’s responsibility under FMLA. The Wages and Hours Division provides free resources to learn, prepare, and administer FMLA.
  • Create a checklist. You have a lot on your plate to help your organization thrive. Creating a basic checklist to ensure you have the right notice and information for FMLA will make the process smoother.
  • Give yourself time. You have limited time every workday, but if someone has approached you about taking FMLA, schedule a follow-up meeting to go over the documentation with them. Before you sit down with them, review the FMLA forms that help you gather the required information. This will help the meeting go smoother.
  • Prepare for employees coming back. If your employee has been gone for 12 weeks, there is a lot they will need to catch up on. Create a plan to help them get back up to speed over a specific amount of time.
  • Review leave policies. Your other leave policies interact with FMLA. For instance, you can require employees to utilize all of their PTO as part of their 12 weeks off, or discuss an intermittent schedule. Your employees would be paid for the days they utilize their PTO.

If this is your first time working through FMLA, you may have a lot of questions and wonder how HR leaders get through it all. Remember that you are not alone. Reach out to other HR leaders in your area and ask questions. The Wages and Hours Division has created an Employer’s Guide to FMLA that goes into further detail about the responsibilities that we have highlighted here.

Which Employees are Eligible for FMLA Leave?

Assuming your company is required to provide FMLA leave, your next question will concern who is eligible.

  • Employees are eligible once they have worked with the company for 12 months. If an employee works for a company, quits, and then comes back, total time worked at the company will carry over.
  • Employees must have worked at least 1,250 hours during the previous 12 months. This is about 25 hours per week, so part-time employees may or may not be eligible.

When Can Eligible Employees Use FMLA Leave?

Employees who are covered by FMLA can request it for a variety of reasons. Here are the most common.

Serious Health Condition

An employee can take FMLA leave if they or an immediate family member (spouse, parent, or child) has a serious medical condition. Since the law passed, the Department of Labor has offered clarification on what qualifies as a serious health condition. Currently, the following applies:

  • Conditions that require an overnight hospital stay.
  • Conditions that incapacitate you or your family member for three days consecutively and require ongoing medical treatment.
  • Chronic condition(s) that leave your employee or an immediate family member occasionally incapacitated and require at least two doctor’s visits a year.

Pregnancy

Your employee can request FMLA leave to accommodate prenatal doctor’s visits, childbirth, and childcare after birth. It also applies when your employee is incapacitated due to morning sickness and to medically required bed rest.

Adoption or Foster Care

An employee may take time off for the placement of a child for adoption or foster care, but it must be within one year of the event.

Military Leave

If your employee has an immediate family member who is on covered active duty or their status changes to active duty as a member of the National Guard, Reserves, or Regular Armed Forces, they may take FMLA to deal with family matters.

Intermittent/Reduced Leave Schedule

Sometimes an employee is facing a situation in which a temporary reduction of hours would help them meet medical needs for themselves or their family. FMLA addresses this situation to allow an intermittent/reduced leave schedule. However, it needs to be approved by the employer, and the employer can require that all available paid time off (PTO) is utilized first, which counts toward the 12 weeks total FMLA-mandated time off.

How To Help an Employee Take FMLA Leave

There are six basic steps in the FMLA cycle.

Step 1: Make Sure an HR Representative is FMLA-certified

The Department of Labor offers courses, as well as a test that an HR representative must take and pass before they can administer FMLA. This ensures that employees are properly trained and that all regulations are followed, decreasing the risk for the company.

Step 2: Proper Notification

An employee should give the company 30 days’ advance notice of any pending surgeries or needed time off. If it is an immediate or sudden problem, they should notify HR as soon as they can with any necessary medical documentation.

Step 3: HR Approval

HR has five business days to review the request and notify the employee if they are eligible for FMLA leave.

Step 4: Employee Submits WH-380

The employee has 15 calendar days to submit the medical certification form filled out by a doctor. These forms are called WH-380s. There are different versions of the form for the various reasons for FMLA leave.

  • WH-380e: Employee’s serious medical condition
  • WH-380f: Family member’s serious medical condition
  • WH-384: Military qualifying exigency
  • WH-385: Caregiver leave for military service member
  • WH-385v: Military caregiver for a veteran

Step 5: Leave Is Taken

If there are any changes to the medical circumstances for the employee, they should be in communication with the company during the leave.

Step 6: Employee Returns to Work

An employee needs to bring documentation that allows them to return to work safely. This is usually filled out by a doctor.

How Employers Can Keep Updated on Family Leave Information

By now,  your head might be spinning a little bit. While FMLA may seem overwhelming, especially with your already busy schedule, there are some great resources that can help you stay on top of updates and ensure compliance. Aside from taking advantage of the many online resources, here are four more resources you can use to be sure you remain in compliance with the law.

Internal Audit

The purpose of this audit is to give yourself and your company the opportunity to proactively look at FMLA compliance. The depth of this audit is up to you and your company’s leaders. You can review the Department of Labor’s current documents on FMLA, review FMLA leaves that have happened over the past 12 months, or simply review the paperwork required for an employee to go on FMLA.

Review Your State Laws Regarding FMLA

You should know that some states (as of this writing, California, Washington, Vermont, Connecticut, Rhode Island, Hawaii, Maine, Minnesota, New Jersey, Oregon, Wisconsin, and Washington DC) have state level family medical leave laws. If your company is operating in one of these states, set aside some time each year to review the state regulations and how they impact the federal FMLA law.

Employment and Labor Law Firms

There are law firms that specialize specifically in employment and labor laws. You should identify several of them and reach out to see what resources they have available for staying up to date on compliance. Some firms send out a monthly email that reviews cases that change the current understanding of federal and state laws. The firm may also have a compliance checklist that can assist you with your internal audit.

State or Local HR Chapters

Identify any HR state or local chapters that you could join or reach out to with questions. The benefit of these chapters is you can learn from other HR professionals who might deal with FMLA on a regular basis or operate within your same industry. The knowledge of the collective group is better than your own singular knowledge.

Questions You’ve Asked Us About FMLA

An employee can take up to 12 weeks in one year. Each day is counted individually, so whenever a day taken hits its one-year anniversary, it is renewed for one more day. For example, if you take eight hours of FMLA time on January 16, 2021, those eight hours will renew the next year on January 16, 2022. If an employee runs out of FMLA leave, the employer may grant additional time off but is not required to do so. One of HR’s responsibilities is to keep track of FMLA leave for its employees and make sure they are not using more than allowed.
In short, none. FMLA is a non-paid employee right. The employee may choose to use vacation pay during the time they are out, but the employer is under no obligation to provide pay. Some companies offer their employees short-term disability benefits, but it is not required.
The employer may deploy a temporary replacement worker to cover for the absent employee, but they must return the job to the original employee when they return, including the same general pay, job duties, and responsibilities.
A labor dispute can be filed against the employer and can lead to serious legal trouble or lawsuits, including fines of $10,000 or more for violating FMLA laws.
No. FMLA was passed so that employees do not have to worry about their jobs or benefits being terminated.
Generally, no.The only reason an employer could end FMLA early is if the employee misused or lied about the reason for family leave. The case Scruggs v. Carrier Corporation provides great insight into this question and how the federal appeals court ruled.
It is not a requirement that they be paid while on family leave. Some organizations have opted to cover FMLA to increase retention and talent, but that is your choice.
Chase Cragun
Chase Cragun, VP of Recruiting USU MHR

Chase carries HR experience in training, recruiting, labor and employee relations, team leadership, and as a generalist. He is always building and expanding on his skills as well as looking for ways to augment his network. When he can, he looks for ways to give back by mentoring new/upcoming HR professionals.

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Brent Watson
Brent Watson

Brent Watson enjoys problem solving, analyzing data, team building, and becoming an HR Guru. His work experience comes from the employee experience, recruiting, and training arenas. After attending a local HR conference, Brent knew that he had found his people and the problems he wanted to solve for in the business world.

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