By the HR Team at Keystone’s Risk Management Division
The Family and Medical Leave Act (FMLA) presents covered employers with many compliance challenges – not to mention the liability concerns when leave is not properly offered or administered.
As most employers know, FMLA provides eligible employees of covered employers with job- and benefits-protected leave for qualifying family and medical reasons.
BUT DID YOU KNOW …
You could be a covered employer and not have eligible employees? When an employee needs a leave of absence for a medical or family reason, employers must first consider two eligibility criteria:
- Are you a covered employer? A covered employer is defined as:
- A private-sector employer who employs 50 or more employees in 20 or more workweeks in either the current calendar year or previous calendar year.
- Public agencies (including Federal, State, and local government employers, regardless of the number of employees), and
- Local educational agencies (including public school boards, public elementary and secondary schools, and private elementary and secondary schools, regardless of the number of employees).
If you have determined that you are a covered employer, you have a general notice obligation under the law. You must:
- Display or post a general notice (i.e., the FMLA poster), and
- If you have FMLA-eligible employees, provide a written general notice to employees by providing each employee with a general notice about the FMLA in your employee handbook or other written materials about leave and benefits. If no handbook or written leave materials exist, you must distribute a general notice to each new employee upon hire.
- Is your employee eligible?
To be eligible for FMLA leave, an employee must have worked for a covered employer for at least 12 months, have at least 1,250 hours of service with the employer during the 12 months before their FMLA leave starts, and work at a location where the employer has at least 50 employees within a 75- mile radius.
For example: Company XYZ has 250 employees and has had them for over 20 work weeks in 2023. They have 30 locations throughout four New England states. Some sites are within 75 miles of each other, and some are not. Employee #123 works at a site that has 30 employees and has no other company sites within 75 miles. In this case, the company is a covered employer for 2023 and 2024 (remember… current calendar year or previous calendar year), but this site has no eligible employees because they have not met the “50 employees with 75-miles” rule.
Don’t forget … As a covered employer, it is mandatory that you provide employees with a notice of their eligibility for FMLA protection and their rights and responsibilities – even if you know that employee does not meet the eligibility requirements for FMLA leave. This notice will let them know if their leave is eligible for FMLA protections, and, if not, why it does not qualify for protection. The Department of Labor provides a model notice for free download called the Notice of Eligibility & Rights and Responsibilities.
Do your employees know your 12-month period?
An employee is allowed up to 12 weeks of FMLA leave in one 12-month period. That 12-month period can be measured in several different ways (as detailed below). If an employer does not specify their method for measuring that period in their FMLA policy, they will be required to use a calendar year, which is not the most beneficial for the employer. However, this measuring method can be changed, but not until the proper notice and procedures are in place.
The calculations can be:
- The calendar year – 12-month period that runs from January 1 through December 31.
- Any fixed 12-months – 12-month period such as a fiscal year (for example, October 1 through September 30), a year starting on an employee’s anniversary date (for example, September 22 through September 21), or a 12-month period required by state law.
- The 12-month period measured forward – 12-month period measured forward from the first date an employee takes FMLA leave. The next 12-month period would begin the first time FMLA leave is taken after completion of the prior 12-month period. For example, Kathy’s FMLA leave begins on November 6, 2022, so her 12-month period is November 6, 2022, through November 5, 2023.
- A “rolling” 12-month period measured backward – 12-month period measured backward from the date an employee uses any FMLA leave. For example, Tony requests three weeks of FMLA leave to begin on November 1, 2023. The employer would look back from November 1, 2023, to November 1, 2022, to see if any FMLA leave had been used. If Tony had not taken any previous FMLA leave, he would be entitled to the three weeks he requested and has nine more weeks available.
Did you know that an employee who misses time due to a work injury may be eligible for FMLA?
We talk to a lot of employers who assume a leave due to a work injury is not covered by FMLA. They are wrong. Any time an employee is on a leave of absence due to a work injury, covered employers must determine if that employee is eligible for FMLA leave. If so, they would be entitled to job-protected leave with benefits continuation through the portion of their leave that is covered by FMLA. Either way, that employee should receive the Notice of Eligibility & Rights and Responsibilities mentioned above.
Did you know FMLA cannot be delayed until paid time off is used?
Employers should never tell workers they can’t take FMLA leave until they’ve used up all their vacation, sick, and other paid time off (PTO). Instead, you can require employees to use their accrued PTO while they are on FMLA leave. However, if an employee is collecting workers’ compensation or short-term disability benefits while on FMLA leave, you will have to follow the law in your state and/or the rules of your particular benefit plan to determine if PTO can be required or allowed while the employee is collecting those other benefits. If allowed, it is best to make sure the employee knows they can never collect more than 100% of their regular pay while on leave.
Did you know that transfers may be allowed while on FMLA?
Companies can temporarily transfer an employee on intermittent leave, to minimize the effect of that person’s absence on the overall operation. The temporary position doesn’t need to be equivalent to the original job – but the pay and benefits must remain the same. And, of course, the employee must be restored to their original job – or its equivalent – when the intermittent leave period is over.
And finally, did you know that you can fire an employee on FMLA?
Though it would be wise to seek legal counsel first, employers can fire an employee who is on intermittent FMLA leave. Despite the fears of many employers, FMLA doesn’t mandate special treatment just because a worker has exercised their leave rights.
Obviously, workers can’t be fired for requesting or taking FMLA leave. But employers can lay off, discipline, or terminate any employee who violates company policies or performs poorly, regardless of their use of FMLA. However, we caution you to discuss this option with your attorney before filling out that pink slip. When an employee on FMLA leave is terminated, the DOL mandates that the burden is on the employer to prove the worker would have been disciplined or terminated regardless of the leave request or usage. Consider this another reminder to document all discipline in real time!
If you are an employer with additional questions on this topic or any other HR topics, we are here to assist you and your organization. Feel free to call our HR Helpline at 855-873-0374.
Disclaimer: The information provided on this website is for informational purposes only and not for the purpose of providing legal advice. Use of and access to this website does not create an attorney-client relationship between Keystone’s Risk Management Division or our employment attorney and the user or browser.