FMLA leave: What it is, who is eligible, and your responsibilities

What is the Family and Medical Leave Act?

According to the US Department of Labor’s Wage and Hour Division (DOL-WHD), the 1993 federal Family and Medical Leave Act (FMLA) allows eligible employees to take up to 12 weeks of unpaid leave within every 12-month period in the company. The leave mainly allows employees to take time off work to take care of their own serious health condition or to take care of a family member stricken with a serious health condition.

The federal employment law covers other leave reasons such as:

• The birth of a son or daughter;
• The adoption or fostering of a child;
• Bonding with the newborn or adopted child; and
• For the qualifying exigency of an employee’s spouse, son, daughter, or parent who is on covered active military duty or called to covered active-duty status for the National Guard, Reserves, or Regular Armed Forces.
• In addition, the employee may take up to 26 weeks of unpaid leave to care for the covered service member with serious injury or illness.

During the leave, the employee’s job is protected and reserved for them until their return and health benefits are maintained as if the employee never took time off work.

Who is covered and eligible for an FMLA leave?

Below are quick charts to determine who is covered and eligible for the unpaid leave:

Is FMLA the same as PFML?

One of the common misunderstandings surrounding FMLA leave is that it is equivalent or similar to PFML – when it is not. PFML or Paid Family and Medical Leave is a state law that offers paid leave for employees who need to focus on family and medical-related matters. The Paid Family and Medical Leave acts as an insurance since it is funded by contributions from both the employers and employees.

Currently, only a handful of states offer PFML:

The COVID-19 pandemic highlighted the need for paid family and medical leave, causing many more states to propose the paid leave like Arizona, Iowa, Illinois, Oklahoma, Minnesota, Tennessee, Pennsylvania, West Virginia, and North Carolina.

What is expected from employers during an FMLA leave?

There are a number of responsibilities and obligations that HR managers and employers are expected to fulfill when it comes to an FMLA leave. Some of these include obligations that are not as explicit as the rest but are still just as significant.

Listed below are some these obligations:

1. Employers should not discriminate against an employee taking FMLA leave

It goes without saying that employers should not discriminate against an employee who needs time off from work for family or medical reasons. Many employees apply for the employment leave and usually have no exact date on their return to office – which can cause disruption and a delay in the organization’s operations and workflow. In addition, many of these employees seem healthy and fit to work at first glance which, unfortunately, causes employers to judge too harshly and act on baseless accusations that could result in the employee suing the company due to FMLA retaliation.

It is an HR leader’s duty to be nonjudgmental and be open-minded when it comes to managing the workforce. In this type of situation, it is always best to rely on evidence and acknowledge that every employee has the right to take time off as they are not robots solely tied to the company.

2. Employers are required to provide notices

Employers and HR managers are required to provide four kinds of notices regarding the Family and Medical Leave Act:

• General Notice: Employers should inform their employees of their leave rights, eligibility, benefits, and violations through the use of employee’s handbooks, employment agreements, newsletters, reminders, and especially the FMLA poster provided by DOL-WHD.
• Rights and Responsibilities Notice: The goal of the notice is to ensure the employee understands their rights and responsibilities with the family and medical leave. Employers should provide the notice within five days of the request and mentions if the employee should provide certification for the need of the leave and/or a fitness-for-duty certification. Also, the notice does not state whether or not the leave request has been granted.
• Eligibility Notice: An eligibility notice form officially notifies the employee whether they are eligible to take an FMLA leave. The notice, for clarification, does not state whether their leave request has been approved or rejected. The employer should provide the notice within five days of an employee's leave request. A valid reason should be stated if the leave request was denied, such as the employee not meeting the minimum hours served requirement.
• Designation Notice: Employers have five days to approve or reject the leave request and the designation notice officially informs whether the leave request by the employee is approved or rejected. In the notice, it mentions the length of the leave and what to expect from both the employee and employer during the leave.

3. Honor a leave request even if it is sudden

It is the responsibility of the employee to notify their employer about their leave at least 30 days in advance. However, there will be moments that demand a sudden leave, such as a sudden surgery or a serious medical accident, that make it impossible to postpone the time off. No matter the urgency, it is the duty of the employer to honor the leave request.

Once the employee notifies the employer about the leave, it is now up to the employer to manage the leave and its effects on the company’s workflow. To do that, an HR leader must:

3.1. Certify the leave and determine if the leave request is within reason

As it is the right for employees to file for leave, HR leaders still need to make sure the request is within reason and true. During the process, employers should guide employees with the required certification, notices, and documentation of the leave. According to DOL-WHD, employers should provide 15 days for the employee to prepare all the certifications needed. Both employers and employees should work together and communicate openly and transparently to make the process easier.

3.2 Clearly grant or reject the leave request

Alongside the designation notice, employers should clearly express the final decision on the leave request with the employee and be ready for any questions or concerns the employee has. Creating an open path for communication and being there for the employee eases their stress and makes them more honest and loyal to the company during the leave. It also increases their willingness to keep in touch during the leave, making it easier for employers to monitor the state of the employee and to see when they are ready to return to work.

4. Maintain employee’s health benefits

Under the federal leave, the employer is legally bound to uphold the health benefits of the employee on family or medical leave. The health insurance should continue as if the employee was still on the job. It also means the employee continues pay their normal health insurance contributions.

5. Keep the job of the employee open for them

It is understood that while the employee is away on family or medical leave, their job position remains available for them to come back to once their leave is over. If the need to fill the position becomes too big to keep vacant, hiring managers can hire or promote someone to handle the role. However, it is still expected that the employer will offer the employee on leave a role that is the same, or equivalent to their previous job. Otherwise, the company would be breaching federal law and could result in a damaging lawsuit.

What are not allowed during an FMLA leave?

Just as many employers and HR leaders are aware of what is expected during an FMLA leave, there are also a handful who are unaware of what is not allowed during the leave and usually have questions about it.

Below are some of the common questions asked:

1. Can an employee do work during the leave?

The quick answer is no. Just like any other type of leave, an employee is not expected to do work and should not be forced to work during the FMLA leave. An employee can do minor tasks for their work such as locating files or signing off quick work revisions.

However, there is nothing stopping an employee from doing work. An employee can do work or have a second job so long as they are not breaking any uniformly applied existing employment policy of their employer, such as working for a direct competitor of the company.

Garrison Law expands further on the work an employee can and can’t do during the family or medical leave:

2. Can an employee submit their two weeks’ notice during an FMLA leave?

No HR leader wants an employee on leave to go look for another job, or worse, submit their resignation letter during their time off. Now that it is clear there is no restriction on employees voluntarily working during their FMLA leave, there is nothing an employer can do to stop an employee on leave from finding work and resigning. Should an employer interfere with an employee looking for a different job, it is a violation of the employee’s right and could be considered as FMLA retaliation – opening the possibility of the company receiving an FMLA interference claim.

What can HR managers do to improve FMLA leave management?

With the constant growth and innovation happening in the workspace, there are more ways than one where HR leaders can manage operations and workflows easily – including how HR leaders keep track of leaves like the FMLA.

Below are just some of those options:

1. Never forget to document

It is surprising how many employers still forget or even ignore the practice of documentation. Despite it being tedious, keeping a small piece of parchment that certifies certain information and situations could do wonders in the long run. Documenting could be anything from recording attendance and absences, leave request forms, email threads of inquiries and conversations, and even medical certificates.

Keeping tabs on these documents helps protect both the employee and company from any miscommunication and possible disputes. It helps in the management of employees as it can show which employees are using their leave more, why they are off work, and how often they are absent. It can also be used as reference and data for any case studies or research the company may have to improve the management and operations of the business.

2. Invest in a leave management software

Technology innovation has created many ways to make the lives of HR leaders lighter – one way is the invention of the leave management software. Using leave management software to manage leaves such as the FMLA, HR leaders are able to simplify and optimize the tracking of employee leaves. The software provides HR leaders more time to focus on other areas of their job and even lessens the occurrence of human error when it comes to recording and tracking.

Investing in a leave management software like the one offered by AbsenseSoft can help employers make quick decisions and strategies that can help improve the employee experience, boost productivity, and increase company loyalty. AbsenseSoft has created a free, comprehensive whitepaper to help managers and employers learn more about FMLA and leave management.

3. Regularly assess and update company leave policies

Law and policies constantly change which could affect the company and its workforce. HR leaders should take the initiative to check whether new laws have been added or revised. The next step is to then assess whether company regulations are up to date with the new laws and make the necessary changes.

It is also up to the HR department to inform every employee about the said changes through use of townhall meetings, employee’s handbooks, posters around the office, email announcements, and if possible, setting up meetings per department to discuss the new policy changes. It is the HR leaders’ responsibility to ensure everyone in the workforce understands the FMLA leave regulations.

Do you have any experience with FMLA leave? Talk to us about it in the comments section at the bottom.