Assuming your workers have the FMLA facts could leave you short-handed at a busy time of year or worse.
With the holidays and a new year approaching, family issues often are front and center for your workers. Now is a good time to review family and medical leave policies with them to prevent misunderstandings and communication gaps that can lead to turnover and legal troubles. Read on for a refresher course you can share with managers and employees alike.
What is FMLA?
The Family and Medical Leave Act (FMLA) is administered by the federal Wage and Hour Division (WHD). It provides a way for employees to balance work and family responsibilities by taking unpaid, job-protected leave for certain reasons. FMLA is intended to promote the stability and economic security of families.
Who is covered by FMLA?
To be eligible for FMLA leave, a person must:
- Be employed by a covered employer.
- Have worked at least 12 months (which do not have to be consecutive) for the employer.
- Have worked at least 1,250 hours during the 12 months immediately before the date FMLA leave is to begin.
What are the basic provisions?
FMLA entitles eligible employees of covered employers to take job-protected, unpaid leave for specific family and medical reasons. Eligible employees are entitled to 12 workweeks of leave in any 12-month period for:
- Birth and care of the employee’s child, within one year of birth.
- Placement with the employee of a child for adoption or foster care, within one year of the placement.
- Care of an immediate family member (spouse, child, or parent) who has a serious health condition.
- The employee’s own serious health condition that makes the employee unable to perform the essential functions of his or her job.
- Any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is on active duty or has been notified of an impending call or order to active duty in the U.S. National Guard or Reserves in support of a contingency operation.
Eligible employees also are eligible to 26 workweeks of leave during a single 12-month period to care for a covered servicemember with a serious injury or illness if the employee is the spouse, son, daughter, parent, or next of kin of a servicemember (Military Caregiver Leave).
Employees may take FMLA leave intermittently or on a reduced leave schedule when medically necessary or when the leave is due to a qualifying exigency. Taking intermittent leave for the placement of an adopted child or foster care of a child is subject to the employer’s approval. Intermittent leave taken for the birth of a child is also subject to the employer’s approval. However, employer approval is not required for intermittent or reduced schedule leave that is medically necessary due to pregnancy, a serious health condition, or the serious illness or injury of a covered servicemember. Employer approval also is not required when intermittent or reduced schedule leave is necessary due to a qualifying exigency.
When should an employee notify the employer about the request for leave?
When the need for leave is foreseeable, an employee must provide notice as soon as practicable in the particular circumstances. An employee must comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances. In requesting leave, an employee doesn’t need to specifically reference FMLA, but he or she must provide sufficient information for the employer to reasonably determine whether FMLA may apply to the leave request.
What rights does the employee have regarding FMLA?
If an employee feels that he or she has been unjustly denied FMLA leave or was unfairly dismissed because he or she took leave, that person has the right to file a complaint with the Wage and Hour Division. The employee can even file a private lawsuit and testify or cooperate in other ways with an investigation or lawsuit without being fired or discriminated against in any other manner.
Employees and other stakeholders may file complaints with their local Wage and Hour Division office. The Department of Labor may file suit to ensure compliance and recover damages, if a complaint cannot be resolved administratively. Most employees also have private rights of action to address violations and recover damages through the courts. Failure on the part of employers to follow FMLA notice requirements may constitute an interference with, restraint of, or denial of the exercise of an employee’s FMLA rights.
Legal experts suggest that supervisors get training to prepare them to recognize a request for FMLA leave and then alert HR.