Family and Medical Leave Act – Answers to Your Common Questions

The Family and Medical Leave Act (“FMLA”) of 1993 allows eligible employees to take unpaid, job-protected leave for specified family and medical reasons. This Act, which applies to covered employers across the United States, is commonly used when eligible employees or their family members are suffering from serious medical conditions or for the birth of a child. While most employers are aware of FMLA, there are some common questions which typically arise when an employee utilizes the leave.

Am I required to provide FMLA leave?

Yes, if you are a covered employer. A covered employer is any entity engaged in commerce, or an activity affecting commerce, that employs 50 or more employees for each working day during 20 or more calendar workweeks in the current or preceding calendar year.

Is my employee eligible for FMLA leave?

To be eligible, an employee must have worked for you for at least 12 months at the time the leave will begin. He/she must have also worked at least 1,250 hours during the previous 12-month period. This 12-month period can be determined based on the calendar year, a fixed year (such as the employee’s anniversary date), or a rolling 12-month period measured backward from the date an employee uses any FMLA leave. Employees are only eligible if they are employed at a worksite where 50 or more employees are employed within 75 miles of that worksite.

How much leave can my employee receive?

FMLA entitles eligible employees to take up to 12 workweeks, or 480 hours, of unpaid leave in a 12-month period.

Under what circumstances can my employee use FMLA leave?

FMLA covers care of a newborn or an adopted or foster child within a year of the child’s arrival. The law also covers care for a seriously ill child, parent, or spouse, but not in-laws. In addition, FMLA allows an employee to take this leave if the employee has a serious health condition that makes the employee unable to perform the functions of his/her job.

Do I have to allow my employee to take FMLA leave?

Yes. FMLA requires covered employers to grant leave to an eligible employee and usually to guarantee the employee a position equivalent in pay and other benefits upon timely return from leave. However, in most cases, you may require the employee to submit sufficient documentation from a healthcare provider supporting the need for leave.

Will I have to pay my employee or provide benefits while he/she is out on leave?

FMLA leave is unpaid. If accrued paid leave (sick, vacation, PTO, etc.) is available, you can require an employee to utilize paid time off during some or all of the unpaid FMLA leave. As for benefits, for the duration of FMLA leave, the employee’s health insurance coverage under any group health plans should be maintained, with the employee paying the usual employee share of the cost. Prior to the employee taking FMLA leave, you should communicate with the employee regarding his/her responsibility to maintain their share of the cost, when it will be due, and the method in which it should be paid to you.

What will I need to do when my employee approaches me with a leave request?

First, determine if the employee has worked the appropriate length of time and hours to be eligible. If so, the employee will need to complete some standard FMLA forms which can be found on the U.S. Department of Labor website. One of these forms will need to be completed by the employee’s physician. Once the standard forms have been completed and returned to you, you should complete the Designation Form and provide it to your employee. The Designation Form is very important because it informs the employee of his/her eligibility for leave, the start date of the leave, its length, and the return date.

Second, do not ask the employee about the specifics of his/her medical issue. The certification form the physician must complete will determine whether the employee’s medical condition warrants FMLA leave.

What if my employee does not return from FMLA leave as scheduled?

The first step is not termination. Instead, you should send a letter to the employee, via certified mail, notifying him/her that pursuant to the Designation Notice you provided at the start of the leave, his/her FMLA leave has been exhausted. You should request that the employee contact you regarding the status of his/her intent to return to work and provide a deadline in which the employee should respond. If the employee fails to communicate with you by the deadline, it will be considered job abandonment.

In conclusion, be sure to work with your human resources professional or provider to ensure that you are informed regarding your responsibilities under the FMLA and that you are fully prepared when one of your employees needs to utilize FMLA leave.

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