The federally mandated Family Medical Leave Act (FMLA) allows employees to take unpaid leave from work, with their job and benefits remaining protected upon their return. It also allows an eligible employee to take time off to care for a family member with a serious health condition, among other things.
There are a lot of questions from business owners about FMLA: does it apply to my business, is is my small business exempt from FMLA, what are the small business requirements for FMLA, what conditions qualify for FMLA, and what qualifies as a serious health condition under FMLA to name a few. Here are some answers to those questions and some additional information on FMLA that may be helpful to small business owners trying to figure out how to handle FMLA leave.
Does FMLA Apply To Your Business?
FMLA applies to the following businesses and employers:
- All public agencies, including local, state and federal employers, and local education agencies, or schools; and
- Private sector businesses who employ 50 or more employees for at least 20 workweeks in the current or preceding calendar year; this includes joint employers and successors of covered employers.
To sum that up, if you’re a small business owner and you don’t have 50 employees, FMLA isn’t something you need to be concerned about. A word of caution about that, that doesn’t mean you don’t have some state laws that govern medical leave, only that the federal FMLA regulations don’t apply to your business.
What Are The Requirements For FMLA?
Managing FMLA can be complex which can make compliance difficult if your business doesn’t have a handle on it. You’ll need to put a policy in place that works for your business and be consistent about how you manage it. A few tips for managing leave under FMLA:
Put comprehensive policies in place. FMLA sets a lot of coverage and eligibility rules, but any employee who qualifies must get at least 12 weeks of unpaid leave a year for a qualifying reason. You need a policy that will let employees know about eligibility information.
Make sure to define the 12 month period. Eligible employees get 12 weeks of unpaid leave in a 12 month period, but there are numerous ways to measure the 12 month period:
- You could use a calendar year
- It could be any fixed 12 month period, such as your fiscal year, or an employees anniversary date
- The 12 month period could be from the date an employee starts FMLA leave
There isn’t necessarily a right way to set the 12 month period, and it may depend on the specifics of how you operate your business, the key is to make sure you define how it’s set upfront.
Make sure to properly designate the leave as FMLA leave. If you know that an employee's leave should be considered FMLA you must designate that leave as FMLA leave. You may be able to let the employee determine whether or not the leave they take is part of FMLA, or your policy may dictate some of this, either way make sure you’re probably designating FMLA leave as such.
You still may need to provide reasonable accommodations. Under the Americans with Disabilities Act (ADA) employers may have an obligation to provide reasonable accommodations for an employee's return to work, even if they have exhausted their FMLA leave.
Don’t forget about state laws that may come into play. The FMLA is a federal law that sets minimum standards that must be met. That means states are able to set laws that provide for more generous leave options. There are several states that have enacted their own family and medical leave requirements, which may not be identical to FMLA.
What Medical Conditions, Or Situations, Qualify For FMLA?
If an employee takes FMLA leave under one of these categories, you must ensure that a job at the same level with the same benefits is waiting for the employee when they return. This is a high level overview of when an employee may be entitled to leave, there are many other considerations to take into account depending on the specific reason an employee is taking FMLA leave.
The Birth of a Child. Can be taken up to 12 months from the child's date of birth.
Adoption of Foster Care Placement. This can begin before the official adoption date to account for court dates, meetings or travel involved with the adoption or foster care placement.
An Employee's Serious Health Condition. If you have any employee who is too ill, injured, or otherwise medically unable to do their job, then they are entitled to 12 weeks of FMLA. This can also apply when an employee is undergoing medical treatment that requires absences from work.
Caring for an Employee's Spouse’s, Child’s or Parent’s Serious Health Condition. If an employee has an immediate family member dealing with a serious health condition, they can get up to 12 weeks of leave to help with care. An immediate family member is classified as one of the following: Spouse, Son or Daughter, Parent or In Loco Parentis (a person who fulfilled the care or financial duties of a parent, even though there is no biological or legal connection; under FMLA an employee who is in an in loco parentis situation may use leave to care for a child where they play that role, or to care for a parent who acted in loco parentis to them).
Military Deployment of an Employee's Spouse, Child or Parent. In certain circumstances an employee may be allowed to take FMLA leave in the event of a family member’s military deployment, to visit a family member on leave during a military deployment, to attend to financial or legal concerns that arise during a family member's deployment or other qualifying situations.
What Qualifies As A Serious Health Condition?
A serious health condition under FMLA is considered to be:
- Inpatient care
- Incapacity for more than 3 days with continued treatment by a medical professional or healthcare provider
- Incapacity related to pregnancy or prenatal care
- Chronic serious health conditions
- Permanent or long-term incapacity
- Certain conditions that require multiple medical treatments.
If your business is subject to FMLA make sure to take some time to create a policy and some procedures or systems for dealing with the leave. It will save you a lot of headaches and potential issues to address this before a leave situation arises.
Have questions about FMLA, setting up a policy or legal and risk management questions in general? Contact us for a free consultation.