Benefits Compliance

Family and Medical Leave Act (FMLA)

Updated May 2013

The Family and Medical Leave Act of 1993 (FMLA) provides certain employees with up to 12 work weeks of unpaid, job-protected leave a year. Employees with military caregiver responsibilities may be entitled to up to 26 work weeks of unpaid, job-protected leave a year. FMLA requires group health benefits to be maintained during the leave as if the employees continued work instead of taking leave. These resources provide general information about FMLA and include a discussion of the 2013 final FMLA regulations released on Feb. 8, 2013.

What employers are subject to FMLA?

FMLA applies to private employers with 50 or more employees within a 75 mile radius. The law also applies to public employers (governmental and school entities) regardless of size.

What employees are eligible for FMLA?

To be eligible for FMLA, an employee must:

  • Have worked for the employer for at least 12 months (not necessarily consecutive)
  • Have worked at least 1,250 hours for the employer within the last 12 months
  • Have a qualifying reason for leave

What are the qualifying reasons that entitle an employee to FMLA?

  • Birth, care for a newborn, adoption, or placement of a child for foster care
  • To care for an immediate family member who has a serious health condition
  • The employee's own serious health condition
  • Qualifying exigencies arising out of an immediate family member that is on or has been called to active military duty or notified of an impending call to active duty in the Armed Forces.
  • To care for a family member with a serious illness or injury that was incurred during active military duty or for a serious illness or injury that existed prior to duty, that was subsequently aggravated in the line of duty (permitted to take up to 26 weeks of leave)

Recent Developments

On Feb. 6, 2013, the U.S. Department of Labor (DOL) published final regulations that expand FMLA's military family leave entitlements and provides special rules for airline flight crews. The new regulations completely republished the regulations in their entirety. The change in the law was to reflect changes to FMLA under two recent laws: the National Defense Authorization Act for Fiscal Year 2010 (NDAA) and the 2009 Airline Flight Crew Technical Corrections Act. The changes can be broken into four main areas:

  • Qualifying exigency leave
  • Military caregiver leave
  • Leave taken by flight crew members
  • Changes and "non-changes" to the "traditional FMLA"

In addition, the DOL revised all FMLA forms to reflect the new provisions. These topics are summarized below. The final regulations are effective March 8, 2013.

Qualifying Exigency Leave
In 2008, FMLA was amended to include a new category of leave called qualifying exigency leave. The qualifying exigency leave is for employees who have a family member on active duty and who have been notified of an impending call or order to active duty. The National Defense Authorization Act for Fiscal Year 2010 (NDAA FY 2010) expanded the leave to include employees whose family members are serving in the regular Armed Forces and added a requirement that the military member must be deployed to a foreign country. The new final regulations implement the amendments of NDAA FY 2010.

A qualifying exigency is defined as:

  • Short notice deployment
  • Military events and related activities
  • Childcare and school activities
  • Financial and legal arrangements
  • Counseling
  • Rest and recuperation (Revised)
  • Post-deployment activities
  • Additional activities
  • Parental care leave (New)

The final regulations added the last type of qualifying exigency leave category for parental care leave as a new category. Under this new category, an eligible employee may take leave to care for a military member's parent, or someone who stood in loco parentis to the military member, who is incapable of self-care when the care is necessitated by the military member's covered active duty. The term "incapable of self-care" requires a review of the specific facts and circumstances, just like the current child 18 years or older rule.
Additionally, the rest and recuperation leave has been expanded from five days to 15 days. This is to align leave available for a family member with the fact that military members themselves are provided up to 15 days for rest and recuperation. Further, the 15 days of leave may now be taken intermittently.

Other significant changes to the qualifying exigency leave changes include:

  • Broadening the applicable military members to include eligible employees with family members serving in the "Regular Armed Forces" in addition to reservists
    NDAA FY 2010 broadened the definition of the family member serving in the military so that service members on active duty or employees who have been notified of an impending call to active duty are included. Previously, only family members of the National Guard and Reserves were covered. The final FMLA regulations reflect this expanded definition.
  • Including a requirement that the military family member show "foreign deployment"
    A new development, the deployment of the military member must be to a foreign country. The DOL noted that the active duty member's orders will generally specify when deployment is to a foreign country.
  • Clarifying the provisions regarding "short-notice deployment" category
    Short-notice deployment is defined as arising from the military member's call up or impending call or order to active duty for seven or fewer calendar days. The DOL recognized that this seven-day leave maximum may be "inadequate" in some circumstances, but elected not to extend the maximum period for this leave. However, the DOL did clarify that an employee who takes seven days of short-notice deployment would still have the remaining 12 weeks to take other types of qualifying exigency leaves.

Military Caregiver Leave
In 2008, FMLA was amended to include a new category of leave called military caregiver leave. An employee is eligible for up to 26 weeks of leave if he/she has a family member who is a current service member of the armed forces, including National Guard and Reserve members. The military member must have a serious illness or injury that is incurred in the line of duty while on active duty. NDAA FY 2010 previously expanded the definition of serious injury or illness to include a pre-existing condition that is aggravated during the line of duty.

The final regulations implement the amendments of NDAA FY 2010and expand military caregiver leave to include employees whose family members are veterans who have a serious injury or illness. The veteran must have been discharged or released (under conditions other than dishonorable) at any time during the five-year period prior to the employee's military caregiver leave under FMLA. Importantly, all time between the passage of NDAA FY 2010 (Oct. 28, 2009) and the effective date of the regulations (March 8, 2013) is disregarded, so as not to unfairly penalize employees whose five-year period had expired or been diminished during this timeframe. Thus, as a result of the final rule, military caregiver leave for a veteran is available as of the effective date of March 8, 2013.

In another change, the DOL broadened the list of health care providers authorized to qualify a military caregiver leave. It used to be limited to only providers affiliated with the Department of Defense or the Department of Veterans Affairs, but is now expanded to include health care providers as defined under the "traditional" FMLA. Further, the regulations also allow an expansion of health care providers available to perform second and third opinions. As long as the original certification is provided by a health care provider on the broader, traditional FMLA list, a second and third opinion may also be performed by a health care provider on the broader list.

The DOL provided a new certification form to be used by an employee requesting military caregiver leave for a family member that is a veteran (WH-385-V).

Special Provisions for Flight Airline Crews
The 2013 final FMLA regulations also implement the Airline Flight Crew Technical Corrections Act (AFCTCA), which was passed by Congress in 2009 to establish FMLA eligibility requirements for airline flight crewmember and flight attendants.

The final regulations provide that airline flight crew members are entitled to 72 days of leave (as opposed to 12 weeks) during a 12-month period for FMLA qualifying reasons other than military caregiver leave, under which they are entitled to 156 days. If the crew member takes intermittent leave, the employer is allowed to round the leave up to one day ("traditional" FMLA maximum increment is one hour) as long as the employee is sent home or does not work during that time. In other words, any employee who uses less than a full day cannot be charged for any of the time taken as the employee cannot be charged for more than the actual time used.

"Traditional" FMLA Changes
The 2013 final FMLA regulations included very minor clarifications and restatements with minor impact for most employers. The important aspects include:

  • Restating the "physical impossibility" standard
    This is where an employee using intermittent (or reduced schedule) leave then reports late or requests to leave midway through a shift and cannot because it is physically impossible due to the nature of the job. For example, a laboratory employee who is unable to enter or leave a sealed "clean room" during a certain period of time, or a railroad engineer missing a train. The DOL simply clarified that the employee can only be charged for the leave for the period that the employer is "unable to permit the employee to work" where the employee is "forced to be absent." In other words, if the employee can return to a same or equivalent job, the employer cannot require the employee to use FMLA.
  • Reminding employers regarding the use of the minimum increment rule of intermittent leaves
    The DOL reminded employers within the 2013 regulations that employees can only be charged for the leave they actually use, up to a maximum of one-hour increments. For example, if an employee is late for her shift by 10 minutes, the employer cannot charge the employee one hour for that time. The employer may either reduce the increment to capture the time or require the employee not to work until the hour elapses.
  • Removing the template forms from the regulations themselves
    The DOL removed the template FMLA forms, which allows it to revise the forms at any time without having to follow the regulatory review process.
  • Creating a new workplace poster
    The DOL revised its workplace poster for employers to hang in the workplace. The new workplace poster is available under "Additional Resources" below, and must be replaced effective March 8, 2013.

FMLA Poster

All covered employers are required to keep on display a poster explaining the provisions of the FMLA. The poster, prepared by the DOL, must be displayed prominently where employees and applicants for employment can see it. The poster and all the text must be large enough to be easily read and contain fully legible text. Covered employers must display the poster even if no employees are eligible for FMLA leave.

Where a significant portion of workers who are not literate in English comprises the employer's workforce, the employer is required to provide the notice in a language in which the employees are literate. To meet the posting requirements, employers may use the sample poster prepared by DOL or may use another format so long as the information provided includes, at a minimum, all of the information contained within the model FMLA Poster provided by the DOL. Electronic posting is permitted as long as it meets all of the posting requirements.

The DOL's model FMLA posteris available in English and Spanish. It has been revised with the issuance of the 2013 Final Rule, and must be replaced no later than March 8, 2013. To access the Spanish version, see "Additional Resources" below.

General Notice

If a covered employer has any eligible employees, it must also provide a general notice to each employee by including the notice in employee handbooks or other written guidance to employees concerning benefits or leave rights, if such written materials exist. If such written materials do not exist, the employer may meet the notice requirement by distributing a copy of the general notice to each new employee upon hire.

An employer may duplicate the text of the FMLA poster to meet this general notice requirement (keep in mind there is a revised version of the FMLA poster, effective March 8, 2013). Or, it may use another format so long as the information provided includes, at a minimum, all of the information contained in the FMLA poster. Where an employer's workforce is comprised of a significant portion of workers who are not literate in English comprises the employer's workforce, the employer must provide the general notice in a language in which the employees are literate.

An employer is permitted to use the same model notice as used in the FMLA poster, described above, to satisfy the General Notice requirement.

Eligibility Notice

When an employee requests FMLA leave or the employer acquires knowledge that an employee's leave may be for an FMLA-qualifying reason, the employer must notify the employee of the employee's eligibility to take FMLA leave within five business days, absent extenuating circumstances. The eligibility notice must state whether the employee is eligible for FMLA leave, and if the employee is not eligible, must state at least one reason why the employee is not eligible.

The DOL has a model Eligibility and Rights and Responsibilities Notice (Form WH-381) that employers can adapt as appropriate for their use to meet their eligibility and rights and responsibilities notice requirements. Please see "Additional Resources" below.

Rights and Responsibilities Notice

Each time the Eligibility Notice is provided, the employer is also required to provide a written notice detailing the specific expectations and obligations of the employee and explaining any consequences of a failure to meet these obligations. If leave has already begun, the employer should mail the notice to the employee's address of record. The employer must translate this notice in any situation where it is obligated to translate the general notice into a language in which employees are literate. Rights and Responsibilities Notices must include the following information, as appropriate:

  • Employee leave requests that qualify as FMLA leave can be designated and counted against employees' annual FMLA leave entitlement
  • The applicable 12-month period for the FMLA entitlement
  • Any certification requirements and consequences for failing to provide such certifications
  • Employees' right to substitute paid leave for unpaid FMLA leave, whether employers require substitution of paid leave and any related conditions, and employees' entitlement to take unpaid FMLA leave if employees do not meet employer conditions for paid leave
  • Any requirements that employees must make premium payments to maintain their health insurance benefits during FMLA leave, the procedures for making such payments, and consequences for failing to make payments on a timely basis
  • Employees' responsibility to reimburse employers for health insurance premiums if they do not return to work following FMLA leave
  • Employees' rights to maintenance of benefits while on FMLA leave and restoration to the same or equivalent job upon return from leave
  • If employees are key employees, notification that they might not be restored to their jobs following FMLA leave and an explanation of the conditions required for such a denial
  • Consequences of failing to comply with any applicable obligations related to taking FMLA leave

If the specific information provided by the notice changes, the employer must provide written notice setting forth any of the information that has changed. This notice of changes should be provided within five business days of receipt of the employee's first notice of need for leave subsequent to any change.

The DOL has a model Eligibility and Rights and Responsibilities Notice (Form WH-381), which employers can modify as appropriate for their use to meet their eligibility and rights and responsibilities notice requirements. Please see Additional Resources below.

Designation Notice

The employer is responsible in all circumstances for designating leave as FMLA-qualifying and giving notice of the designation to the employee. When the employer has enough information to determine whether the leave is being taken for an FMLA-qualifying reason, such as after receiving a certification, the employer must notify the employee whether the leave is designated and will count as FMLA leave within five business days, absent extenuating circumstances. Only one designation notice for each FMLA-qualifying reason per applicable 12-month leave year is required. The employer must also notify the employee if it determines that the leave is not FMLA-qualifying and will not be designated as FMLA leave.

If the employer is requiring the employee to submit a fitness-for-duty certification to be restored to his or her job, the employer must provide notice of the requirement with the designation notice. If the employer will require that the fitness-for-duty certification address the employee's ability to perform the essential functions of the employee's position, the employer must indicate so in the designation notice and include a list of the essential functions. If the employer handbook or other written documents describing the employer's leave policies clearly provide that a fitness-for-duty certification will be required in specific circumstances, the employer is not required to provide written notice of this requirement, but must provide at least oral notice no later than at the time off the designation notice.

The Designation Notice must be in writing. The DOL makes available a sample Designation Notice (Form WH-382) for employer's use. If the leave is not designated as FMLA leave because it does not meet the requirements for FMLA protection, the notice that the leave is not designated FMLA may be in the form of a simple written statement. If the information provided by the employer to the employee in the designation notice changes, the employer must provide written notice of the change within five business days of receipt of the employee's first notice of need for leave subsequent to the change.

Additionally, the employer must notify the employee of the amount of leave counted against his or her FMLA entitlement. If known at the time the leave is designated, the employer must notify the employee of the number of hours, days or weeks that will be counted against the employee's FMLA entitlement. If it is not possible to provide the hours, days or weeks that will be counted against the entitlement (such as in the case of unforeseeable, intermittent leave), then the employer must provide notice of the amount of leave counted against the FMLA leave entitlement at the request of the employee, but no more often than once in a 30-day period and only if leave was taken in that period. Notice of the amount of leave taken may be oral, but must be confirmed in writing, generally by no later than the following payday. Such written notice may be in any form, including a pay stub notation.

There is a model notice available. Please see "Additional Resources" below.

Notice of Opportunity to Change Plans

Notice of any opportunity to change plans or benefits must also be given to an employee on FMLA leave. For example, if the group health plan permits an employee to change from single to family coverage upon the birth of a child or otherwise add new family members, such a change in benefits must be made available while an employee is on FMLA leave. If the employee requests the changed coverage, it must be provided by the employer.

There is no model notice available for this notice requirement.

Notice of Nonpayment of Premiums

In terms of the consequences of the employee's failure to pay premiums while on FMLA leave, in the absence of an established employer policy providing a longer grace period, an employer's obligation to maintain the health insurance coverage of an employee on FMLA leave ends if the employee's payment of his or her share of the premium is more than 30 days late. Importantly, to drop coverage on this basis, however, the employer must have provided written notice to the employee that payment was not received. The notice must be mailed to the employee at least 15 days before coverage is to cease and must advise the employee that coverage will be dropped on a specified date at least 15 days after the date of the letter, unless the payment has been received by that specified date.

If coverage lapses because an employee has not made required premium payments, upon the employee's return from FMLA leave, the employer must still restore the employee to coverage equivalent to that the employee would have had if leave had not been taken. This means the employee cannot be denied coverage upon restoration of employment because a pre-existing condition developed while on leave. The employee may also not be required to meet any qualification requirements or wait the normal waiting period for coverage. Even though benefits must be restored upon return from leave, generally the employer may recover the employee's share of any premium payments missed during FMLA leave period.

There is no model notice available for this notice requirement.

Frequently Asked Questions

Q1. How soon after an employee provides notice of the need for leave must an employer determine whether someone is eligible for FMLA leave?
A. Absent extenuating circumstances, the regulations require an employer to notify an employee of whether the employee is eligible to take FMLA leave (and, if not, at least one reason why the employee is ineligible) within five business days of the employee requesting leave or the employer learning that an employee's leave may be for a FMLA-qualifying reason.

Q2. Does an employer have to provide employees with information regarding their specific rights and responsibilities under the FMLA?
A. At the same time an employer provides an employee notice of the employee's eligibility to take FMLA leave, the employer must also notify the employee of the specific expectations and obligations associated with the leave. Among other information included in this notice, the employer must inform the employee whether the employee will be required to provide certification of the FMLA-qualifying reason for leave and the employee's right to substitute paid leave (including any conditions related to such substitution, and the employee's entitlement to unpaid FMLA leave if those conditions are not met).

If the information included in the notice of rights and responsibilities changes, the employer must inform the employee of such changes within five business days of receipt of the employee's first notice of the need for FMLA leave subsequent to any change. Employers are expected to responsively answer questions from employees concerning their rights and responsibilities.

Q3. An employee never applied for FMLA and never contacted the employer about FMLA before going on worker's compensation or other medical leave. Does the employer have any responsibility in initiating an FMLA discussion with the employee?
A. An employee does not have to request FMLA or even mention it. The law states:

When an employee requests FMLA leave, or when the employer acquires knowledge that an employee's leave may be for an FMLA-qualifying reason, the employer must notify the employee of the employee's eligibility to take FMLA leave within five business days, absent extenuating circumstances.(29 CFR 825.300(b))

If the employer had knowledge that the employee was absent due to their own serious health condition, the employer should have sent the employee the FMLA paperwork within five days of obtaining that knowledge. If that was never done, the employer should send the Notice of Eligibility and Rights & Responsibilities as soon as possible.

Additional Resources

Citations

  • The FMLA Statute: 29 U.S.C. 2601, et seq.
  • The FMLA Regulations: 29 CFR Part 825
  • The Final Rule, 78 Federal Register 8833-8947, Feb. 6, 2013

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