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HR Support on FMLA (Family Medical Leave)
Editor's Note: Be sure you know your state's Family Medical Leave Requirements.
Overview: 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;
- Certification process;
- Designating leave;
- Calculating FMLA time;
- Employer's 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 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 are expanding who is considered a covered family member under the FMLA. For example, several states include domestic partners, grandparents, brothers and sisters and aunts and uncles.
Melissa S. Burdorf, J.D., Legal Editor
Latest items in FMLA
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Family Military Leave Will Soon Be Mandatory in Maryland
Under a new law taking effect October 1, 2013, Maryland employers with 50 or more employees will need to provide each eligible employee with a one-day leave of absence on the day that employee's immediate family member is leaving for or returning from active military duty outside of the US as a member of the US armed forces.
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Maryland FMLA Section Updated
The Maryland FMLA section of the Employment Law Manual has now been updated to include guidance on the state's recent new law regarding family military leave.
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What should an employer do if an employee requests that his or her leave not be counted as FMLA leave?
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Family and Medical Leave Policy for Employers Not Subject to the FMLA
An employer may use this policy to communicate family and medical leave rights and responsibilities when the employer is not subject to the FMLA. Employers can choose to implement a family and medical leave policy that is in line with the FMLA or state equivalent, and may modify it to meet the employer's needs.
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How to Administer the FMLA to Be Consistent With Other Employer-Provided Leaves
The federal Family and Medical Leave Act (FMLA) generally serves as a baseline for covered employers when implementing leave policies. When the provisions of an employer's leave policy intersect with the FMLA, the employer should be careful when handling leaves of absence and should administer both the FMLA and the employer's leave policies equitably and in compliance with the law.
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Can HR or a supervisor be held personally liable for a violation of the FMLA?
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What should an employer do if they discover an employee is working while on approved FMLA leave?
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Does an employer have to give a pay increase to an employee who is out on approved FMLA leave during his or her performance review?
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Does an employer need to pay an employee his or her bonus if the employee was out on approved FMLA leave for part of the year?
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Can an employer contact an employee who is out on approved FMLA leave?
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HR and legal consideration on complying with and administering FMLA leave. Guidance and support on following all of the FMLA rules and regulations.