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FMLA: Who, What, When, Where, Why and How?

As we’ve mentioned before, HR professionals love to use acronyms. One that you might hear getting tossed around a lot is “FMLA.” But what is it? Who can use it and under what circumstances? And how on earth do you go about applying for it?

What is FMLA?
FMLA stands for the Family and Medical Leave Act. This federal law was passed in 1993 and is designed to allow eligible workers to “take unpaid, job-protected leave for specified family and medical reasons,” according to the Department of Labor (DOL). Specifically, the act covers an employee to take up to 12 weeks of leave in a 12-month period for:

  • The birth of a child or placement of a child with the employee for adoption or foster care
  • The care of a spouse, offspring, or parent who has a serious health condition
  • A serious health condition that makes the employee unable to perform the essential functions of his/her job
  • “Any qualifying exigency arising out of the fact that a spouse, son, daughter, or parent is a military member on covered active duty or call to covered active duty status.”

Again, these are just the basics and this leave can be extended under certain circumstances (such as to care for an injured or ailing military member) and under select other circumstances.

Who can use FMLA?
This one is a double-edged sword, because the COMPANY has to be eligible for FMLA status, as does the EMPLOYEE, and it cannot be used unless both parties are eligible.

For a company to be eligible, it must be a:

  • Private-sector employer that has employed 50 or more workers in 20 or more work-weeks in the current or preceding calendar year, including a joint employer or successor in interest to a covered employer.
  • Public agency including a local, state, or federal government agency (even if it doesn’t meet the 50-worker cut off).
  • Public or private elementary or secondary school (even if it doesn’t fit the 50-worker cut off)

The employee must:

  • Work for a company that is considered eligible (see above criteria)
  • Have worked for the company for at least 12 months.
  • Have at least 1,250 hours of service to that company for the 12-month period preceding the leave.
  • Work at a location where the employer has at least 50 employees within 75 miles. (this is also known as the 50/75 rule or 75-mile provision and it doesn’t matter if it crosses state lines as long as it is a circular radius)

When can you use FMLA?
We touched on the circumstances above and while these are certainly open to some degree of interpretation, what we would like to focus on here is the time frame under which you can use it.

Typically, workers are required to take the full 12 weeks in succession to deal with the matter at hand. However, the DOL notes that under certain circumstances, workers can use their FMLA leave “on an intermittent or reduced schedule basis,” meaning they can work a reduced daily schedule or take a few days off a week. However, staff are only available to use this intermittent “for a single qualifying reason,” such as planned medical treatment. If the employee is seeking intermittent leave for a different reason, it is at the employer’s discretion as to whether the request will be granted.

How do you apply?
Applying for FMLA is surprisingly straight forward, but it does require a lot of prep-work. Below, we break down the steps, so you won’t miss a beat.

  • If you are an eligible employer, you must post a general notice in a common area explaining the employee’s rights under FMLA, as well as provide this information in your employee handbook, new hire paperwork, and on any intranet for employees that your company may host.
  • The FMLA request itself is typically initiated by the employee, who will make a request for FMLA leave. However, employers can also initiate the process if they believe they have a worker who qualifies for the leave. 
  • Once the employer receives the request or becomes aware that FMLA leave may be required, they have five days to evaluate respond to the request. Employees typically use this form to respond to requests as it outlines eligibility and provides a straightforward framework for approval or refusal decisions. 
  • Prior to rendering a decision, it is up to the employer to review the forms to make sure that they are filled out in full and that the responses to the questions are clear and appropriately answer the questions at hand. It is at this time that employers can also obtain second or even third opinions from medical providers as to the reason for the leave.
  • Finally, the employer issues their formal decision as to whether they approve or deny the request. Generally, the DOL recommends that you use form WH-382 as it hits on all the important stuff and provides a framework for the time off and what will be required upon return (see below for more on that).

What do workers need to return?
There’s no rule that states that you are required to take the full 12 weeks, rather that you have up to 12 weeks under the system. However, it should be noted that those workers who took time off to tend to their own a health issues may be required to fill out a fitness for duty certification before they are eligible to return to work. This form, which must be provided to the HR representative (not their immediate supervisor), is basically just a statement from your worker’s health care provider that they are fit to perform the tasks of their job. For this to be carried out smoothly, the employer must first inform the worker that a certification will be required and provide said employee with a written list of the job functions that need to be approved. Further, the employee should be made aware that if they are taking intermittent leave, fitness for duty certifications may be required periodically, often at cost to the employee, and the employer does have the right to obtain second opinions should the need arise.

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