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FMLA Compliance Services Through AdvanStaff
The Family and Medical Leave Act (FMLA) is a federal law providing eligible employees of covered employers with unpaid, job-protected leave for specified family and medical reasons. In general, eligible employees may take up to 12 weeks of leave each year for FMLA-qualifying reasons, including for treatment of a serious health condition.
It may be difficult to determine whether some employees’ leave requests are covered under the FMLA so we have included some general information below to help you assess whether an employee may have protection under the law.
To be eligible for FMLA leave, an employee must:
- Be employed by a covered employer
- Have worked for their employer for at least 12 months as of the date the leave is to start
- Have accrued at least 1,250 hours of service for their employer during the 12-month period before the leave
- Work at a location where their employer has at least 50 employees in a 75-mile radius
A private-sector employer is considered a covered employer under the FMLA if it employs 50 or more employees in 20 or more workweeks in the current or previous calendar year.
As a general rule, when eligible employees take time off from work for FMLA-covered reasons, employers should designate the time off as FMLA leave, even if employees do not specifically request FMLA leave. The first steps to compliance, begin with your company. You need to know when an employee is eligible for and/or seeking leave time and you must notify AdvanStaff so we can help you with the leave process. Once you notify us of the need for leave for one of your employees, your AdvanStaff HR Specialist will coordinate with your manager and AdvanStaff’s designated FMLA Specialist to assist employees and managers with FMLA compliance.
An eligible employee may take up to 12 weeks of leave in a 12-month period for any of the following FMLA-qualifying reasons:
- The birth of a child or placement of a child with the employee for adoption or foster care, as well as the need to bond with the child within one year of birth or placement
- The treatment of a serious health condition that results in the employee being unable to perform their essential functions, including incapacity due to pregnancy and prenatal medical care
- The employee’s need to care for an immediate family member who has a serious health condition, including incapacity due to pregnancy and prenatal medical care
- Any qualifying exigency arising out of the fact that the employee has an immediate family member who is a military member on covered active duty or has been called to covered active duty status
In addition, covered employers must grant eligible employees up to 26 weeks of unpaid leave during a 12-month period to care for covered service members with serious injuries or illnesses if these individuals are their spouses, children, parents or next of kin.
Leave requests may be made under separate policies, such as paid sick leave or paid time off (PTO). These policies may require accrued paid leave to run concurrently with FMLA leave, which means that PTO and FMLA leave will occur at the same time.
Employees are not required to mention the FMLA in order to have it apply to their absence; however, employers are required to begin the FMLA leave process when they have enough information to believe that employees’ leave requests may be covered by the FMLA. To identify when employees’ leave requests should be designated as FMLA leave, managers and supervisors should be aware of and react appropriately when they recognize the potential for FMLA-qualifying reasons for leave, such as for treatment of a serious health condition which incapacitates the employee. Also, Managers and Supervisors who are aware that an employee has missed at least 3 days from work and the reason is likely related to their own illness or injury or possibly to the illness of a dependent, should consult with upper level management, their AdvanStaff HR Specialist and/or AdvanStaff’s FMLA Specialist to determine if the employee should be offered leave under FMLA.
A “serious health condition” is an illness, injury, impairment or physical or medical condition that involves inpatient care or continuing treatment by a health care provider. The FMLA does not apply to routine medical examinations (e.g., an annual physical) or common conditions (e.g., an upset stomach, flu, etc.), unless complications develop.
Here are some additional FMLA terms to understand:
- For all conditions, “incapacity” refers to an employee’s inability to work, including being unable to perform any essential functions of their position, attend school or perform other regular daily activities due to a serious health condition, as well as treatment of and recovery from the condition.
- The term “treatment” includes—but is not limited to—examinations to determine whether a serious health condition exists and evaluations of the condition.
To identify when employees’ leave requests should be designated as FMLA leave, managers and supervisors must be able to recognize FMLA-qualifying reasons for leave. Some types of leave requests may be clearly covered under the FMLA, such as an employee requesting time off from work following the birth of their child. Other leave requests, including requests for intermittent leave, may be more difficult to evaluate. Often, employees do not mention the FMLA in their leave requests. However, managers are generally in the best position to identify when these requests are covered by the FMLA, as they will likely know why employees are requesting time off.
Leave circumstances vary between employees, making it important for managers and supervisors to understand the types of requests covered under the FMLA and make a careful judgement with each personal situation. Here are some examples of leave requests that may be covered under the FMLA:
- An employee requests time off because their spouse, child or parent is in the hospital.
- An employee requests time off for an upcoming surgery and follow-up treatment.
- An employee is diagnosed with pneumonia and indicates that they will miss at least a week of work.
- An employee requests time off for days when they suffer from migraines.
- An employee is diagnosed with cancer and requests time off for periodic chemotherapy appointments and recovery.
- An employee requests leave for two days per week to care for a spouse, child or parent with a chronic health condition.
- An employee requests several weeks of time off to be with their newborn child (within one year of the child’s birth).
- An employee requests time off to make child care arrangements arising out of a spouse’s military deployment.
There may be some situations where they are unsure whether these requests and situations are covered. If you are unsure whether a request is covered under the FMLA, reach out to your AdvanStaff HR Specialist for assistance.
A manager should begin the FMLA leave process after determining that an employee’s need for leave or absence of 3 days or more may be for an FMLA-qualifying reason. This process includes the following steps:
- Notify your AdvanStaff HR Specialist or AdvanStaff’s leave department that you believe an employee is eligible for and/or has requested leave.
- Provide any information that you have gathered to AdvanStaff including the date the individual first missed work or intends to be absent, reason for absence, circumstances of absence, intended time if known, full name of the individual and any other information that will allow analysis and follow up.
- Work with your AdvanStaff team to determine if leave is qualifying under FMLA or any other legislation including ADA, state leave laws, state paid leave laws, and/or local leave laws.
- Make certain that all emails and other communication is forwarded to your AdvanStaff team.
Your AdvanStaff team will do the following:
- Verify the employee’s eligibility for FMLA leave and provide them with an eligibility notice
- Provide a written rights and responsibilities notice detailing the specific expectations and obligations of the employee relating to their FMLA leave (if they are eligible)
- Request a medical certification for the employee’s or family member’s serious health condition or request a certification for military family leave
- Follow up to gather missing or late information from the employee
To ensure employees returning from leave are successfully reintegrated into the workplace, managers and supervisors should establish clear expectations about what will happen during the employee’s leave and when they return. Employees should be made to feel welcomed and wanted when returning from leave. To ease their return, managers and supervisors can meet with employees to discuss workplace changes that occurred while they were away.
Training managers and supervisors to understand what is required when employees return from leave can help employers avoid FMLA violations. Employers must reinstate employees returning from FMLA leave to either the same positions they held prior to leave or “equivalent positions.” Such positions are those that are nearly identical in terms of pay, benefits and other working conditions, such as responsibilities, schedule, work location and skill level. Managers are often most familiar with employees’ job positions and specific duties, allowing them to help ensure these factors do not change when employees return from leave.
An employee returning from FMLA leave may have rights under the Americans with Disabilities Act (ADA) if they have a qualifying disability. For example, an employee may have ongoing health issues that restrict their ability to perform the essential functions of their job.
Since Managers and supervisors are often first responders to employee disability disclosures, and may be required to communicate with the employee to determine how best to accommodate the employee’s health issues. Managers and Supervisors who become aware of an employee’s disability or a potential accommodation request should consult with their AdvanStaff HR Specialist.
AdvanStaff HR is here to help you through the complex FMLA process as well as to assist in determining if any other type of leave is required or allowed under your company’s policies.
If you wish to learn more about FMLA the following resources are available.
- The Employer’s Guide to the FMLA, a publication from the DOL’s Wage and Hour Division
- The DOL’s web page on FMLA compliance, including links to model forms
- The DOL’s web page on medical- and disability-related leave
Contact your assigned HR Specialist for additional FMLA information and resources.