Employee Leave: The Family Medical Leave Act

By Leslie Lasher

Recently, we launched our blog series discussing the basics of employee leave. In this second installment, we will focus on the most significant federal law that mandates leave, and the one that has the largest administrative impact on employers:  the Family and Medical Leave Act (FMLA).   I hate to begin with a disclaimer, but I should note that this post attempts to cover the most basic of basics of the FMLA.  The law is extremely complex, with timing requirements, notice requirements, medical certifications, forms, details, and exceptions that I could not even begin to cover here.  Instead, I am providing a high-level overview in order to assist with our later blog on leave overlap, and to address the most common basic questions I see from employers.

The FMLA generally requires employers with 50 or more employees to provide unpaid, job-protected leave for employees suffering from serious health conditions, among other things.  Let me stop here and repeat:  if the employer does not have more than 50 employees, it does not have to comply with the FMLA – unless you are a public entity. There is a common misconception among small to mid-size businesses on this issue, and I find myself often asking small employers why they have FMLA policies in their handbooks, for example.

To be eligible for leave, an employee must generally work for the employer for at least 12 months, for at least 1,250 hours during the 12-month period preceding the requested leave, and work at a location where at least 50 employees are employed at the location or within a 75-mile radius.   Here, it is important for businesses to know that you can technically be required to comply with FMLA, but not all of your employees will be entitled to FMLA.  One of the most confusing issues is the 75-mile radius requirement.  Hypothetically, the employer could have 50 employees (and thus be required to comply with FMLA) but, their multiple locations could be so small and far apart that not all of their employees would work within a 75-mile radius of 50 employees.

One of the most important things to understand in administering FMLA is the definition of a “serious health condition.” Generally speaking, an injury, illness, impairment, physical or mental condition constitutes a serious health condition if it:

  • Involves an inpatient care stay, such as staying overnight in a hospital, hospice, or residential care facility;
  • Requires continuing treatment by a health care provider that necessitates a work absence of more than three days;
  • Is for pregnancy, prenatal care, for the birth of a child, to care for the child after birth;
  • Involves incapacity caused by chronic health conditions including asthma or diabetes;
  • Involves periods of incapacity due to a long-term condition like Alzheimer’s.

A few notes here:  FMLA also provides leave for adoption and foster placements, to care for an immediate family member with a serious health condition, and for certain type of military caregiver and exigency situations.  It provides for leave both in a continuous period when the employee is out for 1-12 straight weeks, for example, and for intermittent leave, such as when an employee needs to arrive to work late on occasion due to a flare-up of a chronic condition. Under most circumstances, the employer can require a medical certification.

Next, it is important to know what the employee is entitled to while on, and when returning from leave. While on leave, the employer must continue the employee’s group health insurance coverage under the same terms and conditions as if the employee were working.  In other words, if the employer pays 100% of employee’s health care, the employer must continue to do so while the employee is on FMLA leave.   Upon conclusion of the leave, employees generally have the right to return to work to the same or equivalent job position.   The employer should not interfere with the employee’s leave, and should not allow or encourage the employee to work, whether on or off the clock, while on leave.  One tip – consider removing a non-exempt employee’s access to email while on leave.

If basic compliance with the FMLA was not difficult enough, its interaction with paid leave policies make this law really interesting. We will touch on this more later, but generally speaking, the federal law does not mandate how paid leave must be used while an employee is on FMLA leave.  In essence, the employer can choose whether to provide only unpaid leave, allow employees to use paid leave to supplement with paid leave, or mandate that employees substitute FMLA with paid leave, among other options. I also should not forget to mention that some states have laws on this topic, and other laws (like workers’ compensation) may also limit how you apply paid leave during the FMLA period.   The decision on how paid leave will be applied during FMLA is best made by the company’s leadership, as the choices will directly affect not only the bottom line, but will also affect the workforce’s perception of FMLA and paid leave as a benefit of employment.

In subsequent articles, we will outline the Americans with Disabilities Act, as well as North Carolina’s Workers’ Compensation leave laws, with a series finale that discusses how these laws intersect in certain situations.

It is important that employers know their obligations under applicable leave laws such as the Family Medical Leave Act in order to mitigate against risks such as employment claims for retaliation or interference with FMLA rights.  One way to ensure that you are in compliance with applicable leave laws at federal and state level is to take advantage of our Employment Law Audit or anFMLA Training Session with an employment lawyer. To inquire about these options, please feel free to contact me.