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Monday, 09 November 2015 17:00

Six “Must-Do’s” for FMLA

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The Family and Medical Leave Act (FMLA) was enacted to grant employees the ability to take unpaid medical leave with job protection for up to 12 weeks for a serious health condition for themselves, their spouse, a child, or parent, as well as certain types of leave for families of members of the National Guard or Reserves. 

FMLA applies to employers with 50 or more employees for at least 20 weeks of the year, with at least 50 employees working at locations within a 75 mile radius.  Although this is a common guideline when determining FMLA, it is certainly not the only deciding factor, since the company could have multiple locations and not all those employees would qualify for the FMLA. An employee is eligible if they have worked for the employer for a total of 12 months, and have worked at least 1,250 hours in those 12 months. 

According to the Labor and Employment Law blog of the Florida Bar Association the following six best practices are critical when administering FMLA:

1.  Know Your Notice Obligations 

You are required to provide a general notice to employees of their FMLA rights via an FMLA poster as well as a notice in your employee handbook and/or ERISA plan document. 

There are also very specific notices that must be given to employees who request leave or need to have their condition or family situation certified.  It is not necessary to use the Department of Labors (DOL) designated notices, however, if you choose to use the forms provided by the DOL, each form contains the appropriate content information required for FMLA.  

Click here to obtain a copy of all the necessary FMLA forms. 

2.  Recognize and Respond Appropriately to Employee Requests for Leave 

An employee may not know to ask for FLMA when they suddenly take leave, but there is an employer responsibility to determine whether the leave ought to be protected.  An employee does not have to disclose all details as to why leave is being taken, however, the employee must provide enough information so that the employer can determined whether it is covered under FMLA. 

       Your next step at that point is to provide the Rights and Responsibility notice given to employee stating the following: 

  • If the employee will be required to provide medical certification from their health care provider
  • The employee’s rights to use paid leave, and whether paid leave must be used first 
  • Whether the employee can maintain their health coverage and if premium payments will be the employee's responsibility
  • Definition of the 12 month period used to track the FMLA usage. (i.e. a calendar year, or some other 12 month period)
  • The rights the employee has to return to their job at the end of the FMLA leave

3.  Evaluate the Employee’s Documentation and Certification

You may require additional documentation beyond the medical certification mentioned above. For example, you may need to receive proof that the family member with the serious health condition is a qualifying relationship.  If the employee must provide a completed certification, they must be allowed at least 15 calendar days to return it. 

The certification request must include the following information:

  • Contact information from healthcare provider
  • Health Condition start date
  • How long the condition is expected to last
  • Medical facts about the condition (i.e. symptoms, hospitalization, doctor visits, etc.)
  • Whether employee is unable to work or the family member is in need of care 
  • Whether leave will be continuous or intermittent 

There are several different certification model forms at the link above for various situations, which are not required but are highly recommended to avoid requesting disallowed information.  If necessary information is missing from the certification, the employee will need to be notified in writing what still needs to be complete in the certification. The employee must provide this information within 7 calendar days. 

If you have concerns regarding the validity of the certification, a second opinion can be requested at the employer’s cost. If the 1st and 2nd opinion differ, a 3rd opinion can be obtained, again at the employer cost. 

4.  Respond by Officially Designating the Leave as FMLA Protected (or not)

Employers must notify employee about FMLA eligibility within 5 days of the first notification.  If you have determined that the leave is protected, then you will need to state that it will be designated as FMLA leave. If the employee is not eligible for the FMLA then you must state the reason why the employee is not eligible (for example, the employee has not worked a total of 12 months). 

5.  Communicate with employees who are on leave

Ongoing communication between the employer and employee will avoid confusion or misunderstandings about the FMLA process.  Employers can require periodic updates to the condition or the employee’s intent to return to work.

6.  Prepare for the Employee’s Return to Work Following FMLA Leave

The employee will need to be given the same job or similar upon returning to work. If you do not give the employee the same position then it must meet the following guidelines:

  • Involve the same or similar duties, responsibility or status
  • Include the same skill set 
  • Offer identical pay, including overtime and bonus
  • Offer identical employee benefits
  • Offer same work schedule and location.

Note: Key Employees are not guaranteed reinstatement to their positions after FMLA leave. This special circumstance would apply to those who are salaried and among the highest paid 10% of all employees within a 75 mile radius of the employer worksite. 

 

If you work at a growing company not yet subject to FMLA but getting close, please This email address is being protected from spambots. You need JavaScript enabled to view it. to better understand your obligations.  Getting up to speed on the FMLA process will definitely save you a potential employee complaint to Department of Labor’s Wage and Hour Division (WHD). 

Please note this information is only a high level summary of your FMLA obligations, and that we cannot provide legal advice.  If you need further information on the FMLA guidelines, we recommend consulting your legal counsel or going to the Department of Labor website.

Read 12622 times Last modified on Tuesday, 24 November 2015 15:24
Amy Schnicker

Amy Johnston is an Account Manager with extensive experience working with both large and small employers as a broker.  In addition to five years of broker experience prior to joining Fall River, she also brings eight years of insurance carrier expertise.  Amy is an expert on ERISA, the Affordable Care Act, and other compliance issues.

Ms. Johnston received a Bachelor of Arts degree in Communications from Colorado State University. She is a Colorado native from Steamboat Springs, and loves spending time in the mountains with her husband, two children, and Tucker the cocker spaniel. She enjoys snowshoeing, hiking, and philanthropy work to promote education.