The Family and Medical Leave Act is more than 20 years old, but it is still confusing to some employers. It’s important for employers to be familiar with the entire extent of the act and which parts of it apply to them.
If you aren’t sure how it applies to you, here’s an overview of what every employer needs to know about FMLA
Coverage and Eligibility
According to the act itself, FMLA applies to all public agencies — state, local and federal employers — and school districts, as well as private employers that have had 50 or more employees for at least 20 work weeks in the current or preceeding year. In most cases, eligible employees must have worked for a covered employer for at least 12 months and have worked at least 1,250 hours during the 12 months before they use FMLA leave.
Under the act, the employer must grant the eligible employee 12 work weeks of unpaid leave in a 12-month period for reasons including, but not limited to:
The birth of a child and to care for the newborn.
Adoption or foster care placement of a child and to care for the child.
To care for a spouse, child or parent who has a serious health condition (this does not include a partner’s parent).
If the employee can’t work because of a serious health condition.
The act provides definitions for these terms, as well as guidance on who is eligible to certify a “serious health condition.”
Employees may be required to provide advance notice to take FMLA or certification of the serious health issue. Employers covered by the act must post a Secretary of Labor notice explaining the act, as well take other action to inform employees of their rights and responsibilities, such as through the organization’s employee handbook or communication when an employee indicates he or she wants to take FMLA leave.
The paperwork requirements for employees who request FMLA leave and employers who receive an FMLA request can be complex and are time sensitive. It’s essential to complete everything carefully and to do so without delay.
Following the requirements of the act carefully is essential to avoid legal claims later on. Lisa M. Lamm Bachman, partner at Foley & Mansfield, says there are two potential claims that an employee can assert regarding the FMLA. First, an employer may be liable for violating the FMLA for interfering with or denying an employee’s entitlement to take qualified leave under the act, for example.
Second, employers face liability for retaliating against an employee for exercising the right to take the leave, Bachman says. “Claims of retaliation are usually based upon the employer’s retaliatory conduct directed toward an employee upon returning to work after FMLA leave.”
Training and clear communication can help ensure employers handle FMLA requests and administration correctly, Bachman says. “To prevent claims of interference with FMLA rights, employers need to train HR and supervisors regarding FMLA leave so that they are able to recognize the situations to which FMLA applies and to respond appropriately to employee requests for leave. Likewise, employers should maintain current policies and ensure that all employees are notified of their FMLA rights.”
Staying up-to-date on performance and discipline issues is another important part of avoiding FMLA claims, Bachman says. “Since FMLA requests are unpredictable, if an employer is having particular issues with an employee’s performance, it is much more difficult to avoid the appearance of retaliatory motive if the employer waits until an employee returns from FMLA leave to address performance or discipline issues.”
Bachman recommends employers “maintain current personnel records, including discipline and performance information, so that if there were performance issues before FMLA leave they are well-documented. Moreover, thorough records will provide a defense to claims of FMLA retaliation if the employer is faced with a post-FMLA leave decision to terminate an employee for performance issues.”
Contact us if you need help understanding FMLA and training your managers to apply it appropriately.
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