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Facts and Fictions of the Family Leave Act

The Family and Medical Leave Act (FMLA) is one of those words that HR folks like to drop into conversation, but few (including potentially that HR rep) actually understand. Now, the Department of Labor has done a nice job of summarizing some various aspects (with a fact sheet and a compliance guide), but let’s talk through the basics and how it is relevant to you, specifically, as a small business owner.

In its simplest form, FMLA is a federal law that guarantees certain employees up to 12 workweeks of unpaid leave each year for various health and family-related issues. During this time, employees cannot be let go from their job, nor can their health benefits be suspended or terminated.

Sounds simple enough, right? Well, not when you look closely at the language and realize that we’re throwing around terms like “certain employees” and “various health and family-related issues.” In terms of eligibility, certain employees refers to those employed by a public agency or those employed by a company with 50 or more employees who have been at the company for at least 12 months and who have worked at least 1,250 hours in the past year. Further, that 12 weeks of leave doesn’t actually have to be taken in one chunk, and can instead be broken up under (you guessed it!) certain circumstances.

Now, when we talk about those various reasons, FMLA is generally approved for employees who can’t work due to a serious medical condition or if they are caring for an immediate family member with a serious medical condition; to cover the birth, foster or adoption placement of an employee’s child and their subsequent care; and a “qualifying exigency” which arises when the employee’s spouse, child or parent is on active military duty or called from the reserves to active duty. Further, the DOL notes that “an eligible employee may also take up to 26 workweeks of leave during a single 12-month period to care for a covered servicemember with a serious injury or illness when the employee is the spouse, son, daughter, parent, or next of kin of the servicemember.

Ok, so we know what, when, and why, but now we have to clear up how. In terms of executing FMLA leave, you should know that there is nothing in the federal legislation that states that you have to pay your employees while they are out of office. However, you can encourage them to use any accrued paid time off (such as vacation or sick leave) before they begin their FMLA leave. In terms of initiating the process, you’ll need to let employees know that they should make their request 30 days in advance of when they anticipate needing the leave (or as soon as possible where this isn’t an option) AND must provide enough information to their employer to allow them to determine whether their request is FMLA eligible. Further, it is within your rights – as a company owner – to request certification in support of the leave (but not medical records!), and can also ask for a second or even third opinion from a medical provider (at your expense) and for re-certifications as you deem necessary to continue FMLA benefits.

And what about when that FMLA leave is over? The federal law stipulates that the employee’s job must be reinstated in his or her previous role or to a new role that is otherwise comparable in terms of the scope of their work, benefits, pay and other metrics. For small business owners, in particular, it may prove particularly hard for you to manage a key worker being out for an extended period, so you may have to make accommodations – such as hiring temporary staff or shuffling roles and responsibilities  – to keep things afloat in their absence.

In terms of other issues you’ll need to keep tabs on, you should also know that while FMLA is, by all accounts, a federal policy, certain states do have their own laws that build upon the basic federal leave, usually adding additional time off or expanding the circumstances for eligibility. For a full list – and links to the laws directly, click here.

Now, even though we’ve done our best to break this one down into the simplest terms, the reality is that between determining company eligibility, employee eligibility, and how this all intersects with state laws (plus any and all frequent federal updates), handling an FMLA request is anything but straight forward. It’s a ton of reading, possibly even more paperwork, and is an area ripe for lawsuits should you make a mistake. With this in mind, it pays to reel in a PEO such as Abel (or another qualified expert) that can review the claim, let you know your options, help you fill out and file the appropriate paperwork, and make sure you’re being compliant at every turn.

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