Managing Leave Issues: An FMLA Primer for HR Professionals

The following is excerpted from Chapter 4 of From Hello to Goodbye: Second Edition (SHRM, 2017), written by Christine V. Walters, MAS, JD, SPHR.

Of all the questions received by SHRM on HR and related issues, the highest volume is FMLA questions. The good news for employers is that the DOL reports that the number of claims filed alleging FMLA violations decreased every year from 2011 to 2016. The primary violation is termination, followed by discrimination then refusal to grant leave. While the basic tenets and provisions of the FMLA have not changed through the regulatory process since 2008, there are administrative agency interpretations, updates, and guidance of which employers should be aware.

In June 2015, the U.S. Department of Labor (DOL) issued a 20-page publication, "The Employee's Guide to the Family and Medical Leave Act." The guide provides information to employees on:

• Who can use FMLA leave?
• When can I use FMLA leave?
• What can the FMLA do for me?
• How do I request FMLA leave?
• Communication with your employer
• Medical certification
• Returning to work
• How to file a complaint
• Website resources

Not to leave employers out, in 2016 the DOL published a somewhat more comprehensive, 76-page guide for employers — you guessed it — "The Employer's Guide to the Family and Medical Leave Act." The law still provides up to 12 workweeks of job-protected leave in a 12-month period to an eligible employee and still generally applies to employers with 50 or more employees. An employer may still choose any 12-month period it prefers such as calendar year, fiscal year, or backward- or forward-rolling year. (Note that a separate 12-month period is specifically defined, however, for military caregiver leave; see below). The employer, however must give employees notice of the 12-month period it chooses, such as in its FMLA policy, which is required to be incorporated into the employer's employee handbook if it has one. An eligible employee continues to retain the right to be rein­stated to the job he had when he began covered leave upon returning from FMLA leave within the 12-week period. The following is intended to provide only a high-level overview of just some of the key aspects of the FMLA as it is adminis­tered today.

Which Employers Are Covered Under the FMLA?

As mentioned above, employers that employ 50 or more employees are generally FMLA-covered employers. Coverage, however, does not apply on the very first day that an employer hires its 50th employee nor does coverage end of the same day an employer should fall below the 50-employee threshold. Let's say an FMLA-covered employer imple­mented a reduction in force 30 days ago. The employer now employs only 40 employees. Today an employee asks for FMLA leave. Is the employer an FMLA-covered employer today since it no longer employs at least 50 employees? It depends. It is important to remember that the definition of a covered employer is one that employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year. If, in the example above, the employer implemented its reduction in force (RIF) on June 1, then it would still be an FMLA-covered employer in this calendar year and the next calendar year (the 20th week of each year generally falls in May). On the flip side, if today an employer hires its 50th employee, it will not be an FMLA-covered employer until it has met the definition described above.

Which Employees Are Eligible for FMLA Leave?

Eligible employees are still those that have worked for your company for a total of 12 months. Those 12 months need not be consecutive but must have occurred within the last seven years with some exceptions, such as absences for covered military service. For example, if an employ­ee works for you for seven full months in this calendar year, resigns, and returns five years later and works for you for five full months, then that employee would have met the length-of-service requirements. In addition, however, the eligible employee must have also worked for your company for at least 1,250 hours within the immediately preceding 12 months.

So, in the example above, the requirement for hours worked may not yet have been met (assuming full-time employment for five months, the employee might have worked only 21 weeks for 840 hours). But if the employee had worked for two full months initially and has now, five years later, worked for you for the last 10 full months on a full-time basis, then he probably has met the hours-of-service require­ment.

The eligible employee must also meet a third requirement: he must work at a site that employs at least 50 employees at or within 75 miles of that site. For example, let's say a financial institution has 125 employees. Forty employees work at the main office and the rest work at branches scattered throughout the state.

If no branch, includ­ing the corporate office, is located within 75 miles of any other branch and no branch employs at least 50 employees, is any employee eligible for FMLA? No. While the financial institution may be an FMLA-covered employer, no employee is eligible because none works at a loca­tion that employs at least 50 employees at or within 75 miles. But the federal regulations require that covered employer to still post the FMLA notice in the workplace even though it has no eligible employees.

Four Reasons an Eligible Employee May Take FMLA Leave

Leave is still provided for:

1. The birth and care of the newborn child of an employee.
2. Placement with the employee of a child for adoption or foster care.
3. The care of an immediate family member (spouse, child under age 18 or otherwise incapable of self-care, or parent) with a serious health condition.
4. When the employee is unable to work because of his own serious health condition. Over the last several years and since the first edition of this book there have been some changes and clarification provided for some of these terms.
   

Christine V. Walters MAS, JD, SPHR, has nearly 25 years of combined experience in HR administration, management, employment law practice, and teaching. She has been engaged as an expert witness, and testified be­fore the U.S. Congress, state legislative committees, and federal adminis­trative agencies.  She also serves as an independent consultant doing business as FiveL Company, Helping Leaders Limit Their Liability by Learning the Law.