HR Support on FMLA (Family Medical Leave)

Editor's Note: Be sure you know your state's family medical leave requirements.

Melissa S. BurdorfOverview: The Family and Medical Leave Act (FMLA) was passed to help employees achieve a balance between work and family responsibilities, by giving eligible employees a reasonable unpaid leave for certain family and medical reasons, and to promote equal employment opportunity for men and women.

FMLA leave can be an administrative challenge for employers because employees may take leave in a single block of consecutive days or on an intermittent or reduced-schedule basis. In addition, the FMLA has strict rules in many areas, such as:

  • Employer notice obligations;
  • Employee eligibility:
  • Qualifying reasons for FMLA leave;
  • Certification process;
  • Designating leave;
  • Calculating FMLA time;
  • Employer obligations while an employee is on leave; and
  • Reinstatement.

When an employee requests, takes or returns from FMLA leave, the employer must also be sure to comply with numerous other overlapping laws, such as the Americans with Disabilities Act (ADA), the Fair Labor Standards Act (FLSA) and workers' compensation.

In addition, several states have laws that provide family and medical leave rights to employees working for employers with fewer employees than what is required by the FMLA, offer a longer period of leave beyond the FMLA's 12 weeks, provide leave for conditions and circumstances not covered by the FMLA or even offer certain levels of wage replacement in some circumstances.

When considering any issues relating to the FMLA, employers must check to see if their state law also applies.

Trends: The Equal Employment Opportunity Commission (EEOC) is targeting employers that have policies that require termination of employees who previously qualified for leave under the FMLA but whose medical conditions prevent them from returning to work when they exhaust their 12-week leave entitlement.

The EEOC contends that employers must engage in the ADA's interactive process with employees in such situations in order to determine whether or not the employee has a disability and may be entitled to a reasonable accommodation (including extended leave) that would enable the employee to perform his or her essential job functions.

Therefore, an employer should not include language in its FMLA policy that indicates that employees who fail to return from FMLA leave will be subject to automatic termination.

Many states' equivalent leave laws expand who is considered a covered family member for family medical leave purposes. For example, several states include domestic partners, grandparents, siblings and aunts and uncles. With the federal Defense of Marriage Act (DOMA) struck down and many states legalizing same-sex marriage, employers in those states must understand that employees may be eligible for FMLA leave to care for their same-sex spouse.

Author: Melissa S. Burdorf, JD, Legal Editor

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