Turner Padget Insights

5 things every business should know about FMLA

Posted On Feb 02, 2017

Health issues are a part of life and often can have both personal and professional effects on employees. Life events such as the serious illness of an employee or family member or the birth or adoption of a child may require an employee to take extended time off from work. A business must understand its obligations and responsibilities in such a scenario.

The Family and Medical Leave Act (FMLA) is a federal law that protects an employee’s job and medical benefits while he or she takes up to 12 weeks of unpaid leave for a qualifying event. Employers that meet certain criteria are covered by FMLA, and South Carolina businesses are no exception.

Under the FMLA, covered employers have specific obligations to their employees and can be subject to liability if these obligations are not followed. A business should review the following five-question checklist to assist in understanding its FMLA responsibilities:

1. Is my business covered by FMLA?

A private employer that has 50 or more employees within a 75-mile area radius is covered by the FMLA. Seasonal businesses should note that workers that are employed for at least 20 or more calendar workweeks in the current or preceding calendar year for the business will count toward the employee total.

Joint employers, such as temporary staffing agencies, and businesses that employ independent contractors are common areas for questions. Could another business count your employees or would an employee you consider to be an independent contractor be counted for FMLA purposes? Courts may look at common ownership and management when assessing the number of employees for FMLA purposes.

2. Are my employees eligible for FMLA leave?

For FMLA eligibility, an employee must have worked for a covered employer for 12 months or more and must have worked for at least 1,250 hours over the 12 months prior to the date the FMLA leave is to begin. The employment does not have to be consecutive, and both part-time and full-time employees can be eligible for FMLA leave.

Businesses should take note once employees become eligible so they can be prepared for leave situations when they arise.

3. Does my employee have a qualifying reason for leave?

If an employee is eligible for FMLA leave, businesses must consider whether an employee’s request for medical leave is covered by the FMLA. An employee may take FMLA leave if he or she has a serious health condition that will make him or her unable to perform the functions of the job. An employee may also take FMLA leave to care for a sick spouse, child or parent (but not an in-law) with a serious health condition.

The birth of a child or placement of a child through adoption or foster care are also qualifying reasons for FMLA leave for a mother or father. Certain qualifying events also may arise when an employee’s spouse, child, or parent is a military member on covered active duty.

Employers may request certification from a health care provider to verify the need for the leave for a serious health condition, but a business is not entitled to ask for medical records or additional information from the health care provider.  The employer may stay in contact with the employee – not to request specific medical information but to get updates and respond to any requests from the employee.  However, an employer should be mindful that the FMLA prohibits employers from “interfering” with an employee’s right to take leave, so communications with the employee should be reasonable.  It is beneficial for businesses to establish a consistent procedure for communicating with an employee during FMLA leave.

4. How much leave can my employees take?

FMLA allows 12 weeks of leave in a one-year period, but employers have flexibility in how they can define that one-year period.

A fixed one-year period can be based on a calendar year (January-December), a fiscal year or an annual period based on the employee’s hire or eligibility date.  Additionally, a one-year period can be measured forward from the date any employee’s first FMLA leave begins.

Using the fixed-term definition may have drawbacks for businesses, however. If an employee takes FMLA leave at the end of one fixed annual period, that employee could start a new leave immediately as the next annual period begins. Using the allowed FMLA periods consecutively would mean an employee could have up to a maximum of 24 straight weeks of job-protected absence.

To prevent this scenario, businesses may choose to make a “rolling” calculation that adds up all the FMLA time an employee has used over the past 12 months and subtracts that total from the employee’s 12-week leave allotment. While this method is more complicated, businesses may find this advantageous because it ensures that an employee can’t take two periods up to 12 weeks back-to-back.

5. What must I do when my employee requests leave?

This can be a tricky area for businesses. When an employee requests FMLA leave, the employer must provide within five business days an eligibility notice and, if eligible, a notice of rights and responsibilities under the FMLA.

Even if the employee doesn’t specify an FMLA-qualifying reason or explicitly request FMLA leave, the five-day clock begins ticking once a business becomes aware that an employee may have a qualifying reason under the FMLA.

It’s vital for businesses to understand, document and communicate FMLA policies to their employees. Employer-specific policies, such as how the eligibility period is calculated, must be consistent for all employees. Include policies in your employee handbook and provide information to employees upon hire. Also, train your human resources professionals and other supervisory staff to be aware of FMLA requirements.

The risks for employers are real and can go beyond just fines for the business if FMLA is improperly administered. Employees may sue the business to recover damages, and some courts have held that managers and supervisors may have individual liability for FMLA violations.

Don’t wait until an employee asks for time off to learn about your FMLA responsibilities. Talk with a lawyer to make sure your business is prepared for your employees’ inevitable life events.