Comprehensive FMLA Guide and Checklist
What businesses are required to have FMLA?
FMLA only applies to businesses that meets a certain criteria:
- Private-sector employer, with 50 or more employees in 20 or more workweeks in the current or preceding calendar year, including a joint employer or successor in interest to a covered employer;
- Public agency, including a local, state, or Federal government agency, regardless of the number of employees it employs; or
- Public or private elementary or secondary school, regardless of the number of employees it employs.
What employees are eligible under FMLA?
An employee of a covered employer who has been employed by the employer for at least 12 months AND has worked at least 1,250 hours (actual hours worked) during the 12-month period immediately preceding start of FMLA leave, and is employed at a work site where 50 or more employees are employed by the employer within 75 miles of that work site. The 12 months of employment need not be consecutive; employment prior to a continuous break in service of seven years or more need not be counted. The employee does not have to work at a work site with 50 or more employees; the employee could work at a site with only 25 employees, for example, and still be covered by the FMLA if other employer sites within the 75-mile radius employed at least 25 employees.
Due to non-traditional work schedules, airline flight attendants and flight crew members are subject to special eligibility requirements under the FMLA.
If you work for a business that FMLA applies to and you are an employee that is eligible for FMLA, here are some guidelines:
EMPLOYEE NOTICE TO EMPLOYER
When the need for FMLA leave is foreseeable (i.e., childbirth or adoption), generally the employee must provide the employer with at least 30 days’ notice. When an employee becomes aware of a need for FMLA leave less than 30 days in advance, it should be practicable for the employee to provide notice of the need for the leave either the same day or the next business day. When the need for FMLA leave is not foreseeable, the employee must comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances. It is important to familiarize yourself with your employer’s leave policy. There are several instances throughout the FMLA process where you will need to comply with both, FMLA Regulations (State and Federal) and Employer’s leave policy.
Overview of the Family and Medical Leave Act
The FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave. Eligible employees are entitled to:
Twelve workweeks of leave in a 12-month period for:
- The birth of a child and to care for the newborn child within one year of birth;
- The placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement;
- To care for the employee’s spouse, child, or parent who has a serious health condition;
- A serious health condition that makes the employee unable to perform the essential functions of his or her job;
- Any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty;” or
- Twenty-six workweeks of leave during a single 12-month period to care for a covered service member with a serious injury or illness if the eligible employee is the service member’s spouse, son, daughter, parent, or next of kin (military caregiver leave).
DOL amended the definition of spouse so that eligible employees in legal same-sex marriages will be able to take FMLA leave to care for their spouse or family member, regardless of where they live.
Employees guide to FMLA (By DOL).
Employers guide to FMLA (By DOL).
Eligible FMLA Flow Process
- Employee notifies the employer (page 1) of leave (You do not have to tell your diagnosis)
- Within 5 business days, employer notifies employee if they are eligible
- Employer provides the employee their FMLA rights and responsibilities along with any request for certification
- Within 15 calendar days, employee must provide employer with completed certification
- Employer must notify employee within 5 business days that leave has been designated as FMLA
- While on FMLA leave, communication between employee and employer is important to the quality of this flow process
- Return to work (Return to your same or nearly identical job)
If you exhaust your FMLA leave entitlement and are unable to return to work, your employer is not required to restore you to your position.
Certain key employees may not be guaranteed reinstatement to their positions following FMLA leave. A key employee is defined as a salaried, FMLA-eligible employee who is among the highest paid 10 percent of all the employees working for the employer within 75 miles of the employee’s worksite.
Special rules apply to employees of local education agencies. Generally, these rules apply when you need intermittent leave or when you need leave near the end of a school term.
Filing a Complaint
If you have questions, or you think that your rights under the FMLA may have been violated, you can contact The U.S. Department of Labor’s Wage and Hour Division (WHD).
The information below is useful when filing a complaint with WHD:
- Your name
- Your address and phone number (how you can be contacted)
- The name of the company where you work or worked
- Location of the company (may be different than the actual job site you worked at)
- Phone number of the company
- Manager or owner’s name
- The circumstances of your FMLA request and your employer’s response
- Please note that this guide/checklist is subject to change since the DOL updates its regulations often. We strongly recommend that employers obtain legal counsel to review. This guide is for reference only
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