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FMLA guidelines for employers

Most U.S. employers are well aware that the Family and Medical Leave Act (FMLA) exists. But, while they may know this federal law provides certain employees with up to 12 weeks of leave for medical and family reasons, they may not completely understand how this often-confusing law is applied on a day-to-day basis in the workplace.

Fortunately, this employer's guide to the FMLA will cover many of the basics of what employers should know regarding FMLA leave.

The FMLA only applies to “covered” employers

Under the FMLA, who is a “covered" employer? You may want to ask this question first since the FMLA won't apply if the employee doesn't work for a covered employer.

Covered employers typically include:

  • Public agencies, including federal or state governments
  • Private-sector employers with at least 50 or more employees
  • Private or public elementary and secondary schools

It's also worth noting that covered employers must typically make sure to display or post a general FMLA notice where employees can see it. The notice should include an explanation of the FMLA and provide information regarding how the FMLA works, including procedures for filing complaints with the Department of Labor's Wage and Hour Division. The employer should also give all FMLA-eligible employees a written notice.

Who is an eligible employee under the FMLA?

Assuming you've determined that you are, in fact, a covered employer, FMLA guidelines still require the employee requesting leave to meet certain eligibility requirements.

For instance, in addition to working for a covered employer, eligible employees must usually:

  • Work for the employer for at least 12 months, but they don't always need to be consecutive months.
  • Log at least 1,250 hours of work for the employer in the 12 months before their requested leave.
  • Work at a location that has at least 50 employees within 75 miles of that location.

But even if the employee meets these requirements, that isn't the end of the story. Indeed, you will still need to determine if the employee has a qualifying reason for leave under the FMLA.

Qualifying reasons for leave under the FMLA

An eligible employee can't take leave under the FMLA just because they are tired and want a break or any other reason of their choosing. There are specific situations where an employee may qualify to use the FMLA to take an unpaid leave from work.

Presuming an employee has met the requirements to take leave under the FMLA as previously mentioned — and if they worked for a covered employer — then the employee might be eligible for up to 12 workweeks of unpaid, job-protected leave during 12 months for any of the following reasons:

  • The employee has had a baby and needs post-partum time to recover.
  • The employee has pre-partum complications in preparation for the birth of a new child.
  • The employee wants to take leave for the birth of a new child or to bond with a new child, but the employee must take the leave within one year of the child's birth.
  • The employee has a new child through adoption or foster care and needs time to bond with the child, but the employee must take the leave within one year of the placement.
  • The employee's spouse, parent, or child has a severe medical condition, and the employee needs to take leave to care for them.
  • The employee must take leave because they are unable to work due to a serious health condition of their own.

There are many other severe mental or physical health reasons that may be a qualify for FMLA leave, but these are just a few.

Employee's responsibilities, including notifications

In most cases, an employee should give their employer at least 30 days' notice that they plan to take leave under the FMLA. Some employees will know far in advance that they need to take a leave of absence for a medical treatment or procedure that they don't need immediately but will have done soon. In this case, the employer and employee can work together to coordinate the best time for the employee to go out on leave without causing much disruption to the business.

But, in some cases, 30 days’ notice isn't possible since the employee won't necessarily know in advance that they will need leave. For example, emergency situations that require immediate medical attention and recovery time, or situations involving family members for which they never could have planned. Every situation is different.

Certifications provide supporting evidence for FMLA leave

An employer may request an employee submit a certification to support the employee's need to take leave under the FMLA. The certification is typically a form completed by both the employee or employee's parent, spouse, or child and their health care provider. An employer may request a second or even a third doctor's opinion or certification in some instances.

The purpose of requesting the certification is to get information related to the employee's request for FMLA leave and to verify the likely time frame of the employee's needed absences from work. It can also demonstrate that the employee has serious mental or physical health reasons that qualify them for FMLA leave.

There are some exceptions, of course. Employers often cannot request medical certification for an employee requesting to use FMLA leave to bond with a newborn child, adopted child, or child they are taking in to foster care. Employers may, however, be able to request documentation to verify the family relationship.

It is the employee's responsibility to provide the initial certification if requested by their employer. If the employee does not provide the certification, the employer may deny the employee's request to take leave under the FMLA.

Additionally, the employer may identify — in writing — things missing from the medical certification and ask the employee to provide a corrected certification. Finally, an employer may be permitted to contact the health care provider for a clarification or authentication of the certification.

What should the medical certification include to be considered sufficient?

The certification will typically only include information related to the reason the employee is requesting leave. In most instances, a proper certification will include the following information:

  • Health care provider contact information.
  • Pertinent medical facts about the serious health condition.
  • How long the medical provider anticipates the serious health condition will last.
  • When the relevant health condition started.
  • Whether the employee will need continuous or intermittent FMLA leave.
  • If the employee is the patient, whether the employee is able to work — and if not, for how long will the inability to work persist.
  • If a family member is a patient — such as a parent, child, or spouse of the employee — whether the family member will require care and for how long.

Designation of FMLA leave

In all circumstances, it is the employer's responsibility for designating leave as FMLA-qualifying leave and giving a designation notice to the employee. The designation notice lets the employee who requested FMLA leave know that it's been approved and provides any applicable requirements that the employee must follow while on leave.

If an employee does not qualify for FMLA leave, the employer must let the employee know that in writing. It can be simply a written statement saying the leave would not be FMLA protected.

Only one designation notice for each FMLA-qualifying reason for leave within a 12-month leave year is required regardless of if the leave is taken in one continuous block, intermittently, or on a reduced schedule. The employer must provide employees with a timely designation notice or it may be considered as denial, interference, or restriction of the employee's FMLA rights.

Employer's obligations during an employee's leave

Covered employers must typically create, maintain, and keep records on file for a minimum of three years.

The records created, maintained, and archived often include the following:

  • Basic payroll employee identifying information
  • Copies of FMLA notices provided by the employee to the employer, including requests for leave from the employee
  • Any employer documentation related to benefits or policies/practices regarding paid or unpaid leave
  • Dates the employee has taken FMLA leave, or hours of FMLA leave if the employee takes leave in segments of less than a day
  • Records of any dispute between the employee and employer regarding FMLA leave

An employer may, in certain circumstances, require a fitness for duty certification after the employee's leave as a condition for the employee's return to their job. The employer can only request the fitness for duty certification for the health condition that caused the employee's need for FMLA leave. If an employer requires this, they must provide the employee with a list of their essential job functions for their certifying healthcare professional to review.

The employee is responsible for obtaining a fitness for duty certification, and the employer may delay allowing an employee to return to work until they receive a fitness for duty certification copy.

Seek legal counsel

If you think it sounds confusing, that's because it certainly can be. And to make matters worse, the information outlined above barely begins to scratch the surface of what employers should know about the FMLA and its many nuances and intricacies.

If you want all the information you could ever need regarding FMLA guidelines for employers, get a free trial of Practical Law today.

The content appearing on this website is not intended as, and shall not be relied upon as, legal advice. It is general in nature and may not reflect all recent legal developments. Thomson Reuters is not a law firm, and an attorney-client relationship is not formed through your use of this website. You should consult with qualified legal counsel before acting on any content found on this website.


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