Family and Medical Leave Act (FMLA)
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, and requires group health benefits to be maintained during the leave as if the employees continued work instead of taking leave. HR managers often name FMLA issues as their top headache. These resources can help you manage leave under FMLA.
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
- 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
- To care for a family member with a serious illness or injury that was incurred during active military duty (permitted to take up to 26 weeks of leave)
All covered employers are required to keep on display a poster explaining the provisions of the Family and Medical Leave Act (FMLA). The poster, prepared by the U.S. Department of Labor (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 poster is available in English and Spanish. To access the Spanish version, please see Additional Resources below.
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. 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.
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.
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.
- The FMLA Statute: 29 U.S.C. 2601, et seq.
- The FMLA Regulations: 29 CFR Part 825
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