Navigating the FMLA: A Practical Toolkit for HR
Navigating the federal Family Medical Leave Act is one of the most frequent and complex issues that HR is involved in. This toolkit provides a range of definitions, tools, and templates to help HR pros manage their FMLA program with confidence and compliance.
The federal Family and Medical Leave Act (FMLA) ensures that eligible employees of larger organizations can take unpaid, job-protected leave to manage certain personal and family responsibilities without compromising their careers.
Organizations covered by the act include private sector employers with 50 or more employees, as well as all public agencies and most public primary schools. HR professionals play an essential role in the effective and compliant management of the FMLA, including determining eligibility, obtaining medical certification, and facilitating an employee’s return to work.
The FMLA is an undeniably complex web of definitions, criteria and requirements. Additionally, many states have introduced their own family and medical leave laws, building on the FMLA as a baseline. A solid understanding of FMLA principles and requirements is essential to ensuring compliance while providing effective employee support.
HR’s Top FMLA Questions from the SHRM HR Knowledge Center
In this episode of the Honest HR podcast, our HR Knowledge Center experts sit down with host Monique Akanbi to tackle the top questions HR pros ask about managing the FMLA. Whether it's calculating requirements, managing leave patterns that suggest misuse, handling benefits coverage obligations, or navigating tricky return-to-work cases, SHRM's own Liz Petersen and Sheri Martel deliver practical insights for approaching the FMLA with confidence.
Want to test your knowledge on FMLA before diving in?
Who Is Eligible for Leave Under FMLA?
To be eligible to receive leave under the FMLA, employees of a covered employer must meet three conditions:
- Employment for at least 12 months as of the first day of leave.
- Employment for at least 1,250 hours of service during the previous 12-month period as of the first day of leave.
- Employment at a worksite that has at least 50 employees within 75 miles at the time the employee makes a request for leave.
The FMLA provides more specific definitions of these conditions, as well as more information on eligibility in less-common situations, such as intermittent leave and when eligibility begins after approved non-FMLA leave has started.
Hear from the Department of Labor on FMLA (Part 1)
In this first installment of a two-part discussion of the Honest HR podcast, Helen Applewhaite, director of the Division of FMLA and Other Labor Standards for the U.S. Department of Labor, dives into specific scenarios and whether they qualify for FMLA leave.
Pro Tip
Home offices in personal residences for remote and other off-site workers are not considered the official work location for FMLA purposes. For these employees, the worksite is the office to which they report and from which assignments are made.
Qualifying Events and Types of Leave
The FMLA provides eligible employees with job-protected, unpaid leave to manage several specific circumstances known as “qualifying events.” These are:
- The birth of a child or placement of a child with the employee for adoption or foster care.
- To care for a family member who has a serious health condition.
- To manage a serious health condition that makes the employee unable to perform the essential functions of their job.
- There are also qualifying events specific to members of the military and their families.
To address these qualifying events, there are three basic types of leave covered by the FMLA:
- Parental leave.
- Family leave.
- Medical leave.
Both family and medical leave requests must be for a "serious health condition."
The Department of Labor on FMLA Compliance
In the second part of this two-part Honest HR podcast from SHRM, Helen Applewhaite, director of the Division of FMLA and Other Labor Standards for the U.S. Department of Labor, talks through the complexities of the FMLA and how HR departments can stay in compliance.
Pro Tip
In general, an employee may not take FMLA leave to care for a child who is 18 years of age or older unless the adult child is incapable of self-care because of a mental or physical disability.
Serious Health Conditions Under FMLA
Under the FMLA, a "serious health condition" is an illness, injury, impairment, or physical or mental condition that involves either of the following:
- Inpatient care in a hospital, hospice, or residential medical care facility.
- Continuing treatment by a health care provider.
Inpatient Care
Inpatient care requires an overnight stay at a hospital, hospice, or residential medical care facility. The definition also includes any period of incapacity in connection with the inpatient care. “Incapacity” means an inability to work, attend school, or perform other regular daily activities as a result of, treatment for, or recovery from the serious health condition. FMLA leave is also approved for subsequent treatments related to the inpatient care, such as follow-up doctor visits or physical therapy.
Continuing Treatment
The FMLA regulations include five categories of continuing treatment:
- For incapacity and treatment.
- Due to pregnancy and prenatal care.
- In relation to a chronic condition.
- For a permanent or long-term incapacity.
- For a period of absence to receive multiple treatments for either:
- Restorative surgery after an accident or other injury
- A period of incapacity for more than three consecutive calendar days in the absence of treatment (e.g. chemotherapy or dialysis).
Exclusions
A few conditions are explicitly excluded by the FMLA regulations from recognition as a serious health condition:
- Conditions for which cosmetic treatments are administered (e.g., acne) that are unrelated to an injury or illness.
- The common cold, the flu, earaches, upset stomach, minor ulcers, headaches (other than migraine), routine dental or orthodontia problems and periodontal disease — unless complications arise that lead to a temporary incapacity of more than three consecutive calendar days.
SHRM Resources
Pro Tip
Common medical conditions like the flu, nausea, minor ulcers, and routine dental problems are not considered serious health conditions unless complications arise that lead to an inability to work for more than three consecutive calendar days.
Managing Medical Certification
The FMLA grants employers the right to request medical certification from an employee’s health care provider to support their request for FMLA leave related to a serious health condition. The U.S. Department of Labor (DOL) offers five optional-use FMLA certification forms: two for requesting medical leave for the employee or for a family member and three that are related to military caregiving.
The organization must allow the employee at least 15 calendar days to return the certification or longer, if circumstances reasonably require more time.
If an employee submits a complete and signed medical certification, the employer may not request additional information from the employee's health care provider beyond requesting clarifications or authentication. This contact requires the employee’s permission.
For work-related injuries, the employer may have direct contact with the employee's health care provider to the extent allowed under the applicable workers' compensation statute.
If the employer has reason to doubt the validity of the medical certification, it may require, at its own expense, that the employee obtain a second or even a third opinion.
FMLA regulations allow an employer to require recertification of an employee’s need for medical leave every six months (or earlier, after the minimum duration of the serious health condition). Employers may also request recertification if:
- The employee requests an extension of leave beyond what was indicated in the original certification.
- The circumstances described by the previous certification have changed significantly, such as the duration or frequency of absences.
- The employer receives information that casts doubt on the employee's stated reason for the absence, such as a pattern of Monday or Friday absences.
An employer may not require a second or third opinion on a recertification.
Pro Tip
Using certification forms from the Department of Labor instead of relying on a doctor’s note supporting a medical absence will help ensure that the absence rises to the FMLA leave criteria.
Determining the Amount and Period of FMLA Leave
An eligible employee's FMLA leave entitlement is limited to a total of 12 workweeks during any 12-month period. There are exceptions for covered service members. If a husband and wife are employed by the same organization, FMLA leave is limited to a combined total of 12 weeks in a 12-month period for leave that is taken for the birth, adoption, or foster care placement of a child or for the care of a parent with a serious health condition.
An employer may choose one of four methods to determine the 12-month period and track an employee’s leave:
- The calendar year.
- Any fixed 12-month period, such as a fiscal year, a year required by state law or a year starting on the employee’s employment anniversary date.
- 12-month period measured forward from the date that the FMLA leave begins.
- A rolling 12-month period measured backward from the date that an employee uses any FMLA leave.
Effect of overtime: All hours — including overtime — that an employee would have been required to work had they not been on FMLA leave may be counted against the employee’s FMLA entitlement. Overtime that is voluntary or discretionary would not be counted in the leave calculation.
Benefits of the Rolling 12-Month Method
Most practitioners agree that the rolling 12-month method provides employers with the best protection agains FMLA leave abuse by employees with absentee issues. Using the first two options could allow an employee to stack leave, using more than 12 consecutive weeks for one or multiple qualifying reasons.
Example: When a calendar year is used, an employee could be on FMLA leave the last 12 weeks of one year and the first 12 weeks of the next year.
For this reason and for ease of calculation, most employers use the rolling 12-month period.
Pro Tip
Any change to the method of calculating the 12-month period for tracking FMLA leave must be announced to employees with at least 60 days’ notice, and the transition must allow employees to retain the full benefit of 12 weeks of leave.
Intermittent FMLA Leave
FMLA leave may be taken intermittently or on a reduced-leave schedule under certain circumstances. Intermittent leave is FMLA leave that is taken in separate blocks of time due to a single qualifying reason. A reduced leave schedule is one that decreases an employee's usual number of working hours per workweek or hours per workday. A reduced leave schedule is typically a change in the employee's schedule for a period of time, typically from full time to part time.
These types of leave may be taken:
- When medically necessary for planned or unanticipated medical treatment or recovery from treatment of a serious health condition.
- To provide care or psychological comfort to a covered family member with a serious health condition.
- To provide care or comfort to a covered service member with a serious injury or illness.
Examples
- Intermittent leave might include leave taken on an occasional basis for medical appointments or leave taken several days at a time spread over a period of six months, such as for chemotherapy.
- A pregnant employee may take leave intermittently for prenatal examinations or for periods of severe morning sickness.
- A reduced leave schedule could benefit an employee who is recovering from a serious health condition and is not strong enough to work a full-time schedule.
Pro Tip
An employer may require an employee on intermittent leave to temporarily transfer to an alternative position that better accommodates this schedule. The alternative position must have equivalent pay and benefits, but does not need to have equivalent job duties.
Managing Pay and Benefits During FMLA
FMLA leave is unpaid, but paid time off (PTO) and other benefits can be a factor in FMLA leave decisions.
Leave
Overlap between FMLA and PTO: An eligible employee may choose to substitute paid leave (vacation, personal, sick, family and any other available PTO) instead of taking FMLA leave. Even if an employee does not choose to substitute paid leave, the employer may require that the employee’s available paid leave run concurrently with the unpaid FMLA leave. In this case, the employee receives pay in accordance with its paid leave policy.
Holidays: FMLA regulations have precise definitions for when a holiday can or cannot be counted as FMLA leave. An employer may count a holiday as FMLA leave when the employee is on FMLA leave for the entire week in which the holiday falls. If an employee works for part of the week in which the holiday occurs, then the holiday does not count as FMLA leave.
FMLA and disability/workers' compensation: FMLA leave may also run concurrently with leave under a disability benefits plan, a workers' compensation statute, or other state statutes that grant wage replacement benefits to employees who would also qualify under the FMLA. If a work-related injury qualifies for FMLA leave, the employee may decline an offer of a light-duty job and continue with unpaid FMLA leave, forgoing the wage-replacement benefits of a state workers’ compensation law.
Benefits
Employers must maintain some benefits and abide by other requirements related to benefits while employees are on FMLA leave.
Health benefits: An employer must continue to provide the same health benefits (including dental and eye care) to employees on FMLA leave. Similarly, the employee must continue to make the same premium payment contributions during the leave period. If the business provides new or changed health benefits while an employee is on FMLA leave, it must follow the same process as if the individual was not on leave.
Other benefits: An employer is not required to continue other benefits during leave, although the employee retains all benefits accrued prior to leave. For example, if an employee who takes FMLA leave has met all the requirements for a perfect attendance bonus or a safety bonus before the leave began, the employee may not be disqualified for such bonuses because of the FMLA leave.
Seniority: An employer is not required to permit an employee on FMLA leave to accrue seniority during leave. However, the employee retains the seniority that was acquired prior to their leave.
Pay increases, bonuses, and awards: An employee on FMLA leave is entitled to any unconditional pay increases, such as cost-of-living increases, made during their leave. Pay increases based on seniority, length of service or work performed may be granted or adjusted based on the employer’s policy or practice. Similarly, an employer can deny a bonus or award if it is based on a specific goal that has not been met because of FMLA absences
Pro Tip
All of these compensation policies and practices must be fair and applied consistently to all employees, whether on FMLA leave or on an equivalent leave.
Managing Return from FMLA Leave
An employer must generally reinstate an employee returning from FMLA leave to the same position or to an equivalent position with equivalent employment benefits, pay, seniority, and other terms and conditions of employment. However, there are exceptions and stipulations, including:
Key employee exception: A key employee is one who is among the highest-paid 10% of an organization’s employees and for whom the employer can demonstrate that reinstatement would cause substantial and grievous economic injury. If an employer designated an individual as a “key employee” when they gave notice for FMLA leave, the employer may deny the individual reinstatement to the same or equivalent position.
Periodic reporting: An employer may require an employee on FMLA leave to report periodically on the employee's status and intent to return to work, provided that the organization’s policy regarding such reports is not discriminatory. If the individual gives unequivocal notice of intent not to return to work, the employer's obligations under the FMLA to maintain health benefits (subject to COBRA requirements) and to restore the employee cease.
Fitness-for-duty certification: An employer has the right to require fitness-for-duty certification as a condition of restoring an employee whose FMLA leave involved a serious health condition or if the employer has a policy that applies to all employees in similar situations. The employee must obtain and present certification from their health care provider affirming that the individual is able to resume work.
Layoff or termination while on FMLA leave: Employees on FMLA leave are not totally exempt from a layoff or other type of termination, as long as the action is not related to the leave. Before taking action, an organization should make sure:
- That there is a valid business reason for such a layoff.
- That it would have happened even if the employee was working and not on leave.
- That it has the appropriate documentation to justify the action.
If termination occurs while the employee is on FMLA leave, the employer has no responsibility to continue the leave, maintain group health plan benefits, or restore the employee, unless there are continuing obligations under a collective bargaining agreement or other agreement.
Navigating Leave Policies: Understanding FMLA and ADA
In this episode of the All Things Work podcast, Robin Shea, attorney at Constangy, Brooks, Smith & Prophete, shares the intricacies of coordinating leave policies in the workplace.
Pro Tips
Meeting the regulatory burden of economic injury around not reinstating a key employee can be difficult. Employers may consider replacing the employee on a temporary basis during the leave period or simply do without the employee during the leave.
If an employee on FMLA leave indicates they may not be able to return to work, and if the employee expresses a continuing desire to do so, the employer must continue to meet all obligations under the FMLA.
Legal and Compliance Considerations
Managing FMLA regulatory requirements is no small task, and the process begins even before the first leave request has been made.
Employer Notice Requirements
Posting: Once an employer is covered by the FMLA, it is required to display an official Department of Labor poster in a conspicuous place where employees and applicants for employment can see it. The poster must be displayed at all locations, even those without eligible employees.
Employee handbook: An organization with FMLA-eligible employees must include a notice of FMLA rights in its employee handbook. If one does not exist, the employer must provide written guidance about the FMLA to each employee upon hire. If the workforce includes a significant portion of workers who are not literate in English, the employer must provide this general notice in the appropriate language(s).
Response to request: Whenever an employee requests leave that may qualify to be on FMLA leave, the employer must:
- Within five days, provide the individual with an official DOL notice of eligibility form noting whether or not the leave qualifies for FMLA.
- Also within five days, in cases in which the leave does qualify, the employer must provide notice of this fact using a different DOL form. It includes:
- Whether the request is approved.
- The amount of leave designated and counted against the employee’s FMLA entitlement.
- Whether certification is incomplete or insufficient and additional information is needed.
Employee Notice Requirements
Leave requests: For foreseeable leave, the individual must provide the employer with 30 days’ advance notice. In certain circumstances, such as a medical emergency, 30 days' notice is not realistic. An employee must give notice as soon as it is practicable.
Request requirements: FMLA regulations are satisfied if the employee’s notice meets all of the following conditions:
- Is at least verbal notice (made in-person or by phone). Notice also can be made by email or other electronic means.
- Is sufficient to make the employer aware that the employee needs FMLA leave.
- Includes the anticipated timing and duration of the leave.
A specific mention of the FMLA is not required, if the information is sufficient for the employer to understand that the employee is seeking leave for an FMLA qualifying event.
Most employers require that a notification of potential FMLA leave follow the organization’s normal procedures for requesting leave (except in unusual circumstances). An employer may require that notice to be in writing and include the reason for the requested leave.
Compliance Considerations
Compliance with the FMLA involves a vast number of requirements. Employers should ensure that HR professionals, managers and supervisors are trained in complying with the law. These areas are worth particular attention:
Record-keeping: Like almost all employment law statutes, the FMLA and state laws impose record-keeping requirements on employers. The FMLA regulations feature a list of records, divided into eight categories, that are required to be kept.
Nondiscrimination and anti-retaliation: Nondiscrimination and anti-retaliation provisions can provide a basis for suit against an employer, even without a substantive violation. Therefore, employers should take care to avoid even the appearance of impropriety in their FMLA leave policies and procedures.
Individual liability for supervisors and HR professionals: An HR manager, supervisor, or other individual who administers the FMLA for the employer, including decisions around the granting of leave, may be held individually liable for an FMLA violation. FMLA training should include an understanding of how to avoid individual liability claims.
State laws: States are free to require leave benefits that are more generous than those provided by the FMLA. Some state leave statutes may apply more to employers or feature different eligibility requirements for employees. State statutes may also require that the employer provide paid leave. HR professionals should always consult their own state statutes to determine how state law interacts with the FMLA.
Pro Tip
If there is a dispute between an employer and an employee as to whether leave qualifies as FMLA leave, it should be resolved through documented discussions between both parties. The decision also must be documented for the record.
Have a question about administering FMLA?
Expert Advice
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Avoiding FMLA Mistakes
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FMLA Qualifying Reasons and FAQs
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Reconciling FMLA with State Laws
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