A Small Business Guide to FMLA

If you haven’t had any experiences with the Family and Medical Leave Act — or FMLA for short — before COVID-19, chances are you have since then. In March 2020 Congress passed the Families First Coronavirus Response Act (FFCRA) which expanded access to FMLA benefits through the end of the year.

Now that the light at the end of the tunnel is beginning to show, it’s time to catch up on everything you were just treading water to get through last year. Chances are one of those things is brushing up on what FMLA is and what it means for you as a small business.

What is FMLA?

FMLA was enacted in 1993 with the intention of granting “family and temporary medical leave under certain circumstances.”

So, what does that mean? FMLA essentially entitles employees of certain employers (all public agencies, schools, and private sector employers with 50 or more employees) to take unpaid leave for specific family and medical reasons while also ensuring that they won’t lose their job in the process. FMLA also allows those on FMLA leave to continue to receive their health insurance benefits as if they were still actively working.

What are the situations that qualify for FMLA?

Under the law, eligible employees can take 12 work weeks of leave during a one-year period for:

• The birth, adoption, or foster placement of a new child within one year of birth or placement
• The care of an employee’s spouse, child, or parent with a serious health condition
• A serious illness or health condition that renders an employee unable to do their job
• Urgent needs relating to a spouse, child, or parent on covered active military duty

Employees can get 26 weeks of leave during a 12-month period if they’re taking time off to care for a covered service member with a serious illness or injury. Workers qualify if they are the service member’s spouse, child, parent, or next of kin.

What do employers need to know about FMLA?

Well, there’s truly a lot to know about FMLA if you really want to understand the ins and outs of the legislation and how it translates to everyday work activities. For those looking to go deep, The Employer’s Guide to The Family and Medical Leave Act from the Department of Labor is 76 pages of all things FMLA. It’s a great resource to keep on hand as a reference when specific situations come up.

FMLA also doesn’t apply to every employee — only those who have worked for at least one year for your company and who have worked at least 1,250 during the prior year.

In the meantime, and for those who aren’t looking to become FMLA experts, there are a few major things you’ll want to know. First, FMLA only applies to your small business if and when you have 50 or more employees. FMLA also doesn’t apply to every employee — only those who have worked for at least one year for your company and who have worked at least 1,250 during the prior year.

It’s also important to note that FMLA only mandates leave — not paid leave. Many employees who take FMLA leave will naturally choose to use any accrued paid leave (think vacation days, sick days, and the like) in order to keep necessary income flowing.

There are also certain notice requirements (more on that in a bit) that employees have to comply with. As an employer, you have the right to request certification from a medical professional that is treating either the employee or the person they’re taking care of that verifies the need for leave.

What do employees need to know about FMLA?

In addition to the qualifications around time worked and FMLA-covered events, there are a couple of other important things that employees should know about FMLA. First, there’s this deep dive guide on all things employees and FMLA from the Department of Labor that offers an intensive look at FMLA from the employee perspective.

Next, one of the most important things for employees to know is that there’s some notification requirements. If an employee can expect that they’ll need FMLA in the future, 30 days’ notice is required. If not, employees have to give as much notice as possible.

One of the most important things for employees to know is that there’s some notification requirements. If an employee can expect that they’ll need FMLA in the future, 30 days’ notice is required.

Employees are entitled to continue receiving healthcare coverage while on leave, but their employer is allowed to require that they continue paying their share of the premium. If they decide to not come back to work after their leave, there’s a chance that their employer could ask them to repay their cost of continuing their benefits while they were on leave (this isn’t the case if they can’t return due to circumstances out of their control).

Last, you have the right to come back to work at a position that is the same or equivalent to the one you had before you took leave.

How to determine if an employee is eligible for FMLA

As long as an employee meets the criteria outlined above for a situation that qualifies for FMLA and has met all of the necessary conditions for being covered by FMLA (time worked at the company, etc.), then an employee qualifies for FMLA.

The biggest variable here is the medical certification element. If you ask for it, the employee has to provide it to you, so in some ways this can be considered an eligibility requirement.

How to communicate with employees on FMLA

Asking an employee to complete substantive work while on leave can amount to FMLA interference, so it’s best to avoid anything that can be construed as requiring your employee to work while on leave. Considering that they’re either ill themselves or taking care of someone close to them who is, it’s best to limit communication with an employee on FMLA leave to only the most essential communications and to do it in the least invasive way possible.