I Have Management Questions For A Management Lawyer.

Please note: Sending us an email will not make you a client of our Firm. Please do not send us confidential information or sensitive materials through this form.


Got 50 Employees? Time for a Refresher on the FMLA

For well over two decades, Employers with 50 or more employees have been required to provide employees with leave under the federal Family Medical Leave Act (“FMLA”). Despite its age, complying with the FMLA remains a challenge.  In fact, in fiscal year 2015, the Department of Labor, the federal agency tasked with enforcing the FMLA, collected $1,960,257 in back wages for FMLA complainants.  In recognition of these continued compliance issues, the DOL updated its Employers Guide in April 2016.  The DOL also updated the required FMLA poster which can be found at http://www.dol.gov/whd/regs/compliance/posters/fmlaen.pdf.

I. FMLA Basics

A.  Covered Employer

The FMLA applies to “covered” employers. Covered employers may include private and public sectors.  A “private sector” employer is covered by the FMLA if it employs 50 or more employees in 20 or more workweeks in the current or previous calendar year.  The workweeks do not have to be consecutive and if an employee works any part of a week, he/she is considered to have worked the entire week.

Employers may try to avoid coverage by keeping their employees below the magic number of 50. However, if they do not take into account all of their locations and all their divisions, they will fail.  For instance, a corporation is a single employer under the FMLA rather than its separate divisions.  Therefore, all locations are counted for coverage purposes.  Additionally, an employer may be considered a joint employer for purposes of FMLA if it controls the work or working conditions of an employee, such as a temporary employment agency.  In the case of joint employment, the employee must be counted by both employers when determining FMLA coverage.

B. Notice Requirement

i.     Employer

Every employer covered by the FMLA must provide a general notice to their employees regarding the FMLA. To satisfy the general notice requirement, the employer must (1) display or post a general notice (referred to as a poster), and (2) if the employer has any FMLA eligible employees, provide a written general notice to employees in the employee handbook or other written leave materials – if they exist.

– The poster must be displayed in plain view where all employees and applicants can readily see it, and must have large enough text so it can be easily read.

– The information displayed on the poster must explain the FMLA provisions and provide information on how to file an FMLA complaint with the Wage and Hour Division.

– The poster must be displayed even if no employees are currently eligible for FMLA leave.

– If a significant portion of an employer’s employees do not read and write English, the employer must provide the General Notice in a language these employees can read and write

ii.       Employee

Employees must likewise provide their employer with written or oral notice of a need for FMLA leave.   Generally, an employer may require that employees comply with the employer’s usual and customary policies for requesting leave, unless unusual circumstances prevent the employee from doing so.

The first time the employee requests leave for a qualifying reason, he or she is not required to mention the FMLA. The employee is simply required to provide enough information for the employer to know that the leave may be covered by the FMLA.  For foreseeable leaves, the employee must indicate when and how much leave is needed.  In all cases, the employer may ask additional questions to determine if the leave is FMLA-qualifying.

iii.            Timing of Notice

a.  Foreseeable Leave

An employee must give at least 30 days advance notice of the need to take FMLA leave when he or she has such advanced notice, and it is practical to do so. For example, a pregnant employee has an expected due date and should provide advance notice of the need for leave.  If an employee does not provide at least 30 days advance notice, and it was possible and practical to do so, the employer may delay the FMLA leave until 30 days after the date that the employee provides the notice.  If, however, 30 days advance notice is not possible because the foreseeable situation has changed or the employee does not know exactly when leave will be required, the employee must provide notice of the need for leave as soon as practical.  A good example of this is when a pregnant employee goes into labor before her due date.  While the leave was foreseeable, the actual date was not.

Employees are also required to consult with the employer regarding the scheduling of planned medical treatment. The goal is to minimize the disruption to company operations.  However, the schedule of treatment is subject to approval by the treating health care provider, and employers should be mindful that employees often consider such scheduling an inappropriate intrusion into their lives.

b.  Unforeseeable Leave

When the need for leave is unexpected, the employee must provide notice as soon as practical. Often, an employer’s normal notice for unforeseen leaves will be deemed reasonable, but it does depend on the circumstances.

C.  Eligible Employee

An employee is eligible for FMLA leave if the following are true:

1. Works for a covered employer;

2. Has worked for the employer for at least 12 months as of the date of the FMLA leave is to start;

3. Has at least 1,250 hours of service for the employer during the 12-month period immediately preceding the leave;

4. Works at a location where the employer employs at least 50 employees within 75 miles of that worksite as of the date when the employee gives notice of the need for leave.

Eligible employees may take up to 12 workweeks of FMLA leave in a 12-month period for the following qualifying reasons:

 – The birth of a child or to bond with the newborn child within one year of birth,

 – The placement with the employee of a child for adoption or foster care or to bond with the newly-placed   child within one year of placement,

 – A serious health condition that makes the employee unable to perform the functions of his or her job, including incapacity due to pregnancy and for prenatal medical care,

– Note: A serious health condition is an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a health care provider.

– To care for the employee’s spouse, son, daughter, or parent who has a serious health condition, including incapacity due to pregnancy and for prenatal medical care,

– Any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a military member on covered active duty or called to covered active duty status.

Additionally, eligible employees may take up to 26 workweeks of leave in a single 12-month period to care for a covered servicemember with a serious injury or illness if the employee is the spouse, son, daughter, parent, or next of kin of the servicemember (referred to as military caregiver leave).

II. Administering FMLA Leave  

A.   Tick Tock Tick Tock – 5 Days to Issue Eligibility and Rights and Responsibilities Notice

Once the employer determines the employee is eligible for FMLA, the clock starts running. An employer must provide an Eligibility and Rights and Responsibilities Notice to the employee informing the employee whether he or she is eligible for FMLA leave within five business days of determining eligibility.  Employers can use the Notice of Eligibility and Rights and Responsibilities form available on the DOL’s website.   If you do, we suggest you add a line on the form where the employee acknowledges you delivered the form and the date.

B.  Certification Process

An employer may require a certification when an employee requests leave for: (a) employee’s own serious health condition, (b) the serious health condition of the employee’s parent, spouse, son or daughter, or (c) military family leave.  The employer’s notice that a certification is required must be included in the written Rights and Responsibilities Notice that the employer gives the employee within five business days of becoming aware of the employee’s need for FMLA leave.  The employer must also advise the employee of the consequences of failing to provide a complete and sufficient certification.

The employee has 15 calendar days, absent unusual circumstances, to return the certification. If an employee fails to return the certification in a timely manner, the employer can deny FMLA protections for the leave following the expiration of the 15-calendar day time period until a complete and sufficient certification is provided.  However, no disciplinary actions can be taken against the employee for absences during the initial 15 day period.

Certification forms are available on the Department of Labor’s website

C.  Designation Notice – Tick Tock Tick Tock – 5 Days to Issue Designation Notice

The employer is obligated in all circumstances to designate if the leave is FMLA-qualifying and give a Designation Notice to the employee. The Designation Notice informs the employee the requested leave will be designated as FMLA leave and sets out the requirements applicable while the employee is on leave.  The notice must be provided within five business days of determining the leave qualifies as FMLA.  Designation Notices are available on the Department of Labor’s website.

III.  Scheduling and Taking FMLA Leave

Employers may choose from four different options for counting the 12-month period during which eligible employees may take up to 12 weeks of leave:

1. The calendar year (January 1st through December 31st);

2. Any fixed 12 months, such as fiscal year;

3. A 12 month period measured forward from the first date an employee takes FMLA leave (the next 12 month period would begin the first time the employee takes FMLA leave after the completion of the prior 12-month period),; or

4. A rolling 12 month period measured backward from the date an employee uses FMLA (each time an employee takes FMLA leave, the available leave is 12 weeks (or 26) less any leave used during the immediately preceding 12 months).

Most of our clients choose the rolling 12 month period.

A.     Intermittent Leave or Reduced Schedule Leave

Under certain circumstances, an employee is entitled to take FMLA leave on an intermittent or reduced schedule basis. Employers must permit employees to take intermittent or reduced schedule leave when there is a medical need for such leave. An employee is not entitled to take intermittent leave for the birth and care of a newborn child, for the placement of a child for adoption or foster care unless the employee agrees to the arrangement.

An employee may take FMLA leave in periods of weeks, days, hours, and in some cases even less than an hour. The total number of hours in those workweeks that an eligible employee is entitled to take on an intermittent or reduced schedule basis depends on the specific hours the employee would have worked had the employee not taken the FMLA leave.

For example, an eligible employee who actually works 32 hours per workweek is entitled to 384 hours of FMLA in a 12-month period (12 workweeks x 32 hours per week). However, an eligible employee who actually works 45 hours per workweek is entitled to 540 hours in a 12-month period (12 workweeks x 45 hours per week).

B.  Employer must maintain health insurance coverage.

While an eligible employee is out on leave, an employer must maintain the employee’s coverage under any group health plan on the same basis as coverage would have been provided if the employee had been continually employed during the entire leave period. But, if the employee normally owed a contribution, they must continue to pay it or lose the coverage.

                  IV.  Employee Returns to Work

When an employee returns from FMLA leave, he or she must be restored to the same job that the employee held when the leave began or to an “equivalent job.” The employee is not guaranteed the actual job he or she held prior to the leave. An “equivalent job” means a job that is virtually identical to the original job in terms of pay, benefits, and other employment terms and conditions (including shift and location).

                V.  Conclusion

At this point in time, most employers are familiar with the concept of FMLA and have been providing such leave to employees. However, intermittent leave, workers on the cusp of eligibility, and various other complications can make administration a minefield. Moreover, when an employee is out of FMLA that is not the end of the inquiry for employers.  Various other local, state and federal laws are oftentimes implicated such as the Americans with Disabilities Act, the Pregnancy Discrimination Act, state sick leave laws, worker’s compensation, etc. There is no one law that addresses all leave issues. To ensure compliance you must identify all federal, state and local laws and then review them to ensure full compliance.

Brody and Associates regularly provides counsel on the FMLA, as well as employment law issues in general. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560