Human Resource professionals are often asked by their employees about taking a leave of absence. Sometimes, these leaves of absences are protected by the federal government. The Family and Medical Leave Act (FMLA) entitles eligible employees of covered employers to take unpaid, job-protected leave for certain medical and family reasons. It is important to understand the ins and outs of this regulation, not only for your employees, but also to avoid potential penalties from the Department of Labor.
Step 1: Determining if you are a covered employer.
A covered employer is a:
- Private sector employer, with 50 or more employees in 20 or more workweeks in the current or preceding calendar year, including a joint employer or successor in interest to a covered employer;
- Public agency, including a local, state, or Federal government agency, regardless of the number of employees it employs; or
- Public or private elementary or secondary school, regardless of the number of employees it employs
Step 2: Determining if your employee is eligible for FMLA.
An eligible employee is one who:
- Works for a covered employer (see above);
- Has worked for the employer for at least 12 months;
- Has at least 1,250 hours of service for the employer during the 12-month period immediately preceding the leave; and
- Works at a location where the employer has at least 50 employees within 75-miles.
Please note, the 1,250 hours of service does not have to be consecutive. If any employee has a break in service that lasted more than seven years, the time worked prior to the break will not count unless the break is due to service covered by the Uniformed Services Employment and Reemployment Rights Act (USERRA) or there is a written agreement, including a collective bargaining agreement, outlining the employer’s intention to rehire the employee after the break in service.
Step 3: Determining the length of leave entitlement
Eligible employees may take up to 12 work weeks of leave in a 12-month period for one or more of the following reasons:
- The birth of a son or daughter or placement of a son or daughter with the employee for adoption or foster care;
- To care for a spouse, son, daughter, or parent who has a serious health condition;
- For a serious health condition that makes the employee unable to perform the essential functions of his or her job;
- For any qualifying exigency arising out of the fact that a spouse, son, daughter, or parent is a military member on covered active duty or call to covered active duty status.
Please note, additional time may be provided to care for a servicemember, when the employee is the spouse, daughter, son, parent or next of kin of the employee.
Step 4: Notice
Employees must comply with their employer’s usual and customary requirements for requesting leave and provide enough information for their employer to reasonably determine whether the FMLA may apply to the leave request. Employees generally must request leave 30 days in advance when the need for leave is foreseeable. When the need for leave is foreseeable less than 30 days in advance or is unforeseeable, employees must provide notice as soon as possible and practicable under the circumstances.
Covered employers must:
- Post a notice explaining the rights and responsibilities under FMLA. Employers may be subject to a civil penalty for willful failure to post.
- Include information about FMLA in their employee handbooks or provide information to new employees upon hire;
- When an employee requests FMLA leave or the employer acquires knowledge that leave may be FMLA-qualifying, provide the employee with notice concerning his or her eligibility for FMLA leave and his or her rights and responsibilities under FMLA; and
- Notify employees whether the leave is designated as FMLA leave and the amount of leave that will be deducted from the employee’s FMLA entitlement.
Conclusion
As you are likely aware, FMLA regulations can be quite complex. The above is just a summary of the various rules that apply to FMLA. At Innovative, we are committed to ensuring that our clients are up to date on regulations and guidance from various federal agencies. We strongly advise that Human Resource professionals review their current FMLA practices to ensure that employees are provided with accurate information and so that the employer avoids potential penalties. We hope you will join us at our office in Moorestown, NJ for a Lunch N Learn on April 13th. This seminar will focus on potential solutions to leave management and your current FMLA practices.
