HR 101: The ABCs of FMLA

The Family and Medical Leave Act (FMLA) is a federal law that provides access to time off for a majority of American workers if they are ill, injured, or welcome a child into their home. The Women’s Legal Defense Fund originally wrote the Act in 1984. They introduced the Act to Congress annually from 1984 to 1993. Congress passed the legislation in 1991 and 1992. However, President George H. W. Bush vetoed the bill both times.

In 1993, President Bill Clinton signed the FMLA into law as part of his first-term domestic agenda. In 2008, President George W. Bush added military family leave provisions to provide additional protection for members of the armed forces and their families.

The FMLA is administered by the United States Department of Labor’s Wage and Hour Division. The Act allows up to 12 weeks of job-protected leave of absence for workers every year. Employees are eligible for leave if they have worked for the company for at least 12 months, with a minimum of 1,250 hours worked during that time. Businesses that are required to comply with FMLA must have 50 or more employees within 75 miles of the company’s primary location.

What types of leave requests does the FMLA cover?

The Act covers requests for leaves of absence when an employee or their family member has a serious medical condition that would benefit from time away from work. It also covers new children in the home and families of active service members of the military. The FMLA has specific guidance on what constitutes eligibility:

• The birth of a child and/or the care for the newborn up to 1 year after their birth
• The placement of a child in foster or adoptive care and/or the care for the child up to 1 year after placement in the home
• To address an employee’s serious health condition that makes them unable to perform the essential functions of their job
• To care for a spouse, child, parent, or certain other dependents with a serious health condition who would benefit from caregiving assistance by the employee
• A difficulty arising when an employee’s spouse, child, or parent has been notified of an impending call to active military duty
• To care for a military service member in the event of a serious illness or injury (military caregiver leave)

Who is a spouse?

A spouse is a person who is legally married under the guidelines of federal or state authorities. In some states, non-married employees are covered if they live in one of 8 states that recognize common-law marriages or domestic partnerships.

There is a marriage exception under the FMLA. If both employees work for the same company, the employer has the right to limit the amount of leave time to 12 months total for both workers. The 12 weeks are divided among both workers at the employees’ discretion.

Who is a child?

Under the FMLA, a child is a biological offspring, foster child, stepchild, legal ward, or a child of a person’ standing in loco parentis.’ In loco parentis means ‘in the place of a parent.’ If an employee cares for a child in their home as a parent would — an example might be a grandparent caring for grandchildren whose parents are in the military — they would be considered ‘in loco parentis.’ This employee would be eligible for leave to care for the child, even though grandchildren are not covered under FMLA.

Which employees are eligible for FMLA?

Companies are required to provide FMLA leave if they have at least 50 employees within a 75-mile radius of their business. Remote workers within that 75-mile radius are also eligible for leave. The company is not required to have 50 full-time staffers to be covered by the Act’s requirements — part-time workers are also counted.

The company is not required to have 50 full-time staffers to be covered by the Act’s requirements — part-time workers are also counted.

Eligible employees are workers that have been with the company for a minimum of 12 months before the requested leave begins. They must also have worked at least 1,250 hours during that time period. Part-time and full-time workers are eligible, provided they meet these thresholds.

What is job protection?

The FMLA guarantees job protection for eligible employees who do not exceed the 12-week per year allotment. Job protection means the employee will maintain or be returned to their prior position or one of equal duties, pay, and stature at the end of their leave.

How do employees get time off under the FMLA?

FMLA leave is not automatic. Employees must request the leave with a reasonable amount of notice as possible. Eligible employees must submit a form for leave approval. It is also typically accompanied by a doctor’s certification.

The Department of Labor has forms and guidance available for employers to download and use for leave requests. Employers have the right to refuse FMLA leave if the employee does not submit the required paperwork or if the forms are not verified by a licensed healthcare professional.

In some cases, forms will need to be completed retroactively. In the event of an accident, for example, an employee would not have had the opportunity to request leave. These forms should be sent to family members to complete and return as soon as possible after the employer is notified of the incident.

Military leave under FMLA

The military provision of the FMLA covers several types of leave requests. The first covers qualifying exigencies. An exigency occurs when a worker’s spouse, child, or parent has been notified of an upcoming call to active duty. These workers are eligible for up to 12 weeks’ leave to manage such tasks as arranging for childcare, attending military briefings or ceremonies, or making financial or legal arrangements.

Employees who face short-notice deployment of their spouse, child, or parent are eligible for 7 days’ leave from the date of notice of deployment. Workers are eligible for 15 days of leave to spend with an active-duty service member who is on Rest and Recuperation leave. Employees are also allowed up to 90 days’ leave when their spouse, child, or parent is post-deployment.

The Department of Labor has specific forms for workers who request leave under a military exigency.

Military caregiver leave under FMLA

The second type of military leave is for persons who care for a covered service member. This includes a spouse, parent, child, or a range of caregivers who may or may not be related to the service member.

These employees are eligible for up to 26 weeks of job-protected leave to care for an active-duty service member with a serious medical condition. This could be an injury acquired while on duty or an illness worsened by their service. Separate forms are used for this type of leave request.

Employees are also eligible for 26 weeks of FMLA leave to care for a veteran who was discharged no more than 5 years before the request for leave. This can include caring for:

• An injury or illness incurred or worsened during their service
• A physical or mental condition that qualifies them under the Department of Veterans Affairs Service-Related Disability Rating
• A physical or mental condition that substantially limits their ability to work

Specific forms are required for this type of leave.

How is time off allocated and measured?

Employees have the right to take leave in a variety of ways. They can use:

• The full 12 weeks in a single block
• Take weeks or days off
• Take time off intermittently (even in increments of less than 1 hour in some cases)

Only time taken away from the job is counted against the employee’s FMLA allowance. An example might be a company that is typically closed on Monday. That day off would not be counted against FMLA leave.

Even if employees are required to take other time off, like personal or vacation time, in full or half-days, they are eligible to take FMLA time off in the smallest increment your company measures.

Employers are required to allow and calculate FMLA time off the same way they calculate other time away from work. For example, if your organization counts sick time in 15-minute increments, you must allow FMLA time to be used and measured the same way. Even if employees are required to take other time off, like personal or vacation time, in full or half-days, they are eligible to take FMLA time off in the smallest increment your company measures.

How often are employees eligible for leave?

There are two ways employers can calculate FMLA eligibility for staff members. The law states eligible employees may have up to 12 weeks of job-protected leave every 12 months. Employers use two types of 12-month measurements to determine how much time off an employee can receive.

The first is the calendar year method. The calendar year method is used more commonly. This method resets the clock for eligibility for every employee on January 1^st. When the new year rolls in, every employee becomes eligible for another 12 weeks of time off under the FMLA.

This method is more often used by employers because it is easier to track and calculate time off. On December 31^st, the time off clock closes for the past year, and a new one begins.

A second method, that can be more difficult to track, is the rolling method. The rolling method starts the 12-month clock when an employee returns from FMLA leave. Whether or not they’ve taken an FMLA-related leave before, they will be ineligible for an additional leave until they’ve worked another 12 months and 1,250 hours from the date of their return.

Once an employer decides on calendar or rolling FMLA measurements, that allocation must apply to all employees.

Calendar year method

Many employers use the calendar method because it’s easiest to track and calculate. It can also mean more time off for employees, in many cases adding a burden to organizations.

For example, an employee with a new child in the home may request the last 12 weeks of the year off. When a company uses the calendar method, they can also request the first 12 weeks of the new year under FMLA. This could bring their total time off to 24 rather than 12 weeks.

As long as the child was under 1 year old during the time off requested, the employee would be within their rights to request and receive FMLA leave in 2 separate blocks because of the calendar year designation.

The rolling calendar method

Under the rolling method, that same employee would likely be limited to 12 weeks off. Once they return from their initial 12-week leave, the rolling process begins measuring time back at work. They would need to work another 12 months and 1,250 hours to be eligible for a second leave under the FMLA. During that time, their child would have reached 1 year of age, disqualifying the employee from further family leave.

While it’s more challenging to calculate, rolling leave may be more cost-effective. Many companies turn to time-tracking software or third-party providers to help them allocate and track time off, including FMLA.

An organization may change its FMLA leave policy from calendar to rolling (or vice versa), providing they give employees reasonable notice of the change. That might mean a full year’s notice to provide employees who are on or planning a leave time to adjust to a change from the calendar to rolling calculations. A company doesn’t need as much lead time to communicate a change to a calendar calculation.

Do employees receive pay or benefits while they’re on leave?

While the FMLA only requires unpaid leave to be granted, employers are allowed to require workers to use earned time off during the leave. As long as the requirement to use accrued time is applied to all workers, any sick, vacation, or personal time the employee has accumulated may be used during the FMLA time off. The FMLA still provides employees job protection when their leave is longer than their available accrued time.

Regularly received employee benefits, like healthcare coverage, must be maintained during the leave. If an employee normally pays a portion of the cost of coverage, the company may ask for payment during the leave or be reimbursed once the employee returns to work.

A company has the discretion to suspend benefits like paid time off accrual during an employee’s leave. Time off during the leave does not accrue for the purposes of establishing the 1,250 hours needed for a later FMLA request.

Are there states with additional FMLA laws?

There are many states with their own version of the FMLA. These state regulations add benefits and options to the federal legislation.

In California, for example, an eligible employee can take unpaid leave to care for a sibling. In Hawaii and Massachusetts, grandparents are eligible to receive care as well. It’s essential to check with your state’s Department of Labor to ensure you comply with federal and local laws.

Does FMLA overlap with other laws?

The FMLA can work in conjunction with other laws that protect Americans in the workplace. An employee on FMLA leave may have a disability as defined under the ADA. An employee collecting workers’ compensation may designate some or all their time off to FMLA time.

Employers will need to look at employee requests for leave on a case-by-case basis to ensure they’re not only protecting the worker’s rights under the FMLA but all other laws, as well.

Additionally, workers collecting short- or long-term disability may also be eligible for FMLA job protection.

Employers will need to look at employee requests for leave on a case-by-case basis to ensure they’re not only protecting the worker’s rights under the FMLA but all other laws, as well.

Why is the FMLA important?

The FMLA is an important tool for businesses to attract and retain workers. For workers who need time off due to family or health reasons, American workers have used FMLA time off more than 300 million times since its enactment. About 15 million workers take this leave annually. More than half, 56%, of U.S. employees are eligible to receive protection under the law.

Most workers do not take the full 12-week allotment. The Department of Labor estimates about 40% of workers take 2 weeks or less. Annually, another 10 million plus workers need the leave but cannot afford to take time off work, according to some estimates.

For businesses, allowing employees to take time off for their children, to attend to their health, or that of a close relation is an important retention tool. About a third of workplaces report complying with FMLA  had a positive net result on their business.

Employee retention is key for small businesses. This can occur because staff members can care for themselves, their children, and others without the added pressure of work. They are able to return to their jobs with focus and commitment. In most cases, work is shifted temporarily to other staff members, so the leave doesn’t even require a replacement worker.

Allowing your trained and talented staffer to take unpaid time off is much more cost-effective than the cost and lost revenue of replacing them.

How can you comply with the FMLA?

The Department of Labor has extensive guidance for employers to comply with the FMLA. Their website offers examples, directions, and all the forms your company will need.

Notify employees of their rights under the law. Also, ensure your company creates a company policy that aligns with local requirements where you do business. Communicate your policy widely and place FMLA (and other employment law) posters prominently around your workplace. Remind remote workers located within 75 miles of your company that they are also eligible for the benefit.

Check your local Department of Labor to ensure you comply with any additional state or FMLA requirements.

The FMLA has provided workers with job-protected leave for almost 30 years. It has also given over 300 million workers access to needed time off. For businesses, the Act helps value and retain talent that has a temporary need to step away from the workplace.