FMLA Basics Employers Still Get Wrong

The Family and Medical Leave Act has been federal law since 1993, yet it remains one of the most common sources of employment disputes. The rules are detailed, the notices have deadlines, and the interaction with paid leave, disability laws and state programs can be confusing. Here is a practical overview for employers.

Who is covered

Private employers are covered if they had 50 or more employees in 20 or more workweeks in the current or preceding calendar year. Public agencies and public and private elementary and secondary schools are covered regardless of size.

Coverage of the employer is only the first step. Individual employees must also be eligible.

Who is eligible

An employee is eligible if they have worked for the employer for at least 12 months, which need not be consecutive, and have worked at least 1,250 hours during the 12 months before the leave begins. They must also work at a location where the employer has at least 50 employees within 75 miles.

The 75-mile rule catches many multi-site employers by surprise. A worker at a small branch can still be eligible if enough employees work at other locations within that distance.

What leave covers

Eligible employees may take up to 12 workweeks of unpaid, job-protected leave in a 12-month period for the birth of a child and bonding with a newborn, placement of a child for adoption or foster care, caring for a spouse, child or parent with a serious health condition, the employee's own serious health condition, or certain qualifying exigencies arising from a family member's military deployment.

Employees may take up to 26 workweeks in a single 12-month period to care for a covered servicemember with a serious injury or illness who is a spouse, child, parent or next of kin.

Leave can be taken all at once, intermittently or on a reduced schedule when medically necessary. Intermittent leave is one of the most difficult areas to manage and a frequent source of disputes.

Employer obligations

During leave, employers must maintain group health coverage on the same terms as if the employee had continued working. When leave ends, employees generally must be restored to the same or an equivalent job with equivalent pay, benefits and terms.

Employers must post a general FMLA notice where employees can see it, as covered in our guide to required workplace posters. When an employee requests leave or the employer learns that leave may qualify, the employer generally must provide an eligibility notice within five business days, followed by a designation notice.

Employees generally must give 30 days of notice for foreseeable leave and as soon as practicable otherwise. Employers may require medical certification for leave based on a serious health condition.

Employers may also require employees to use accrued paid leave at the same time as FMLA leave, as long as the policy is applied consistently and communicated in advance.

Common mistakes

Failing to recognize a leave request is a frequent problem. Employees do not have to mention the FMLA by name. If an employee says they need time off for a medical procedure or to care for a sick parent, the employer is responsible for considering whether FMLA applies.

Counting attendance points or disciplining employees for FMLA-protected absences is another common mistake. So is treating an employee differently after they return from leave. Both can support claims of interference or retaliation, which we cover in our report on retaliation claims.

Forgetting the ADA is a third. When FMLA leave runs out, an employee with a disability may still be entitled to additional leave or other accommodations under the Americans with Disabilities Act.

State programs and Kentucky

Many states now run paid family and medical leave programs that operate alongside the FMLA, as explained in our paid family leave report. Employers with workers in those states must coordinate both.

Kentucky has no general state family or medical leave law for private employers. State law does require employers to grant up to six weeks of personal leave to employees adopting a child under the age of seven, under KRS 337.015. Kentucky employers should also review the state's wage and hour rules.

A written FMLA policy, trained supervisors and consistent recordkeeping prevent most problems. When in doubt, consult the Labor Department's guidance or employment counsel.