Are You a Legal Professional?

Complying with the FMLA

Businesses with 50 or more employees must comply with the federal Family and Medical Leave Act (FMLA), which protects a worker's right to a certain amount of time off (leave) for a medical necessity and/or family obligations. To be eligible, employees must have been employed with the company for at least 12 months and must have worked 1,250 hours or more during the 12-month period prior to the first day of leave.

Employers are not required to pay qualified employees who request FMLA leave but must return them to their positions, under the same terms and conditions as if he or she had not taken leave, once the period of leave is completed. Employers also must provide continuation of health insurance coverage, if applicable.

Any state and local family or medical leave regulations that provide more protections to workers must be followed in place of their federal FMLA counterparts. For example, some states provide family and medical leave coverage for businesses with fewer than 50 employees. Check the family and medical leave laws in your state (FindLaw Employee Rights Center) before administering an employee's leave request.

Qualifying Reasons for FMLA Leave

Employees are entitled to 12 work weeks of unpaid leave within a 12-month period for the following circumstances:

  • Birth of a child and care of a newborn within its first year
  • Placement of child with an employee for adoption or foster care within the first year of placement
  • Care for employee's spouse, child or parent with a serious health condition
  • Serious health condition that interferes with employee's ability to perform the essential duties of the job
  • Any qualifying exigency (details below) related to the fact that an employee's spouse, son, daughter or parent is on active military duty

Employees may take up to 26 weeks of leave within a 12-month period to care for a close family member (spouse, son, daughter, parent or next of kin) who has sustained a serious injury or illness as a result of active military duty.

Military Leave: Qualifying Exigencies

The U.S. Department of Labor has determined a wide range of activities and circumstances that may qualify a covered employee for FMLA leave with respect to active military duty. Some examples of qualifying exigencies are listed below, while employers and employees may agree on others:

  • Up to seven days leave from the date of notification for a covered military member's short-notice deployment (i.e. deployment on seven days of notice or less)
  • Military events, such as official ceremonies and informational briefings sponsored by the military (includes American Red Cross events)
  • Some childcare activities arising from the call to active duty, such as arranging for childcare and transferring child to a new school
  • Making financial and legal arrangements related to a covered military member's active duty
  • Attending counseling for oneself, a covered military member or the child of the military member (pertaining to a call to active duty)
  • Up to five days leave to spend with a covered military members on short-term, temporary R&R leave during deployment
  • For the attendance of some post-deployment activities, such as arrival ceremonies and reintegration briefings, for up to 90 days following the termination of active duty status (or for the death of a covered military member)

FMLA: Employer Responsibilities

Covered employers (those with 50 or more employees) are required to post a notice of FMLA regulations (FindLaw Employee Rights Center), in plain view of employees, explaining the rights and obligations under the law. See FindLaw's "Required State and Federal Labor Posters" page for FMLA and other posting requirements. An explanation of FMLA rights and responsibilities also must be included in the employee handbook or other literature explaining employee benefits.

An employee requesting leave under FMLA need not explicitly identify it as "FMLA leave." However, the employer is required to notify the employee of his or her rights and obligations under the federal law when leave is requested. Once the employer confirms that the employee's leave request does indeed fall under the protections of FMLA, then the employer must inform the employee that the absence will be counted as FMLA leave.

Employers may require medical certification (PDF, DOL) for a leave request related to a serious health condition of the employee or the employee's close family member, but are not required to do so. The employer also may request second or third opinions, periodic recertifications and certification that an employee may safely resume work. Any policy requiring medical certification must be applied equally among all employees.

Once an employee returns from FMLA leave, the employer must restore the employee to his or her original position or one with equivalent duties, pay and benefits. Employment decisions may not be based on an employee's FMLA leave (i.e. you can't fire a worker because you interpreted a period of FMLA leave as a lack of dedication to the company) but employers are not required to pay bonuses that could have been earned if not for the leave.

Next Steps
Contact a qualified business attorney to help you
prevent and address human resources problems.
(e.g., Chicago, IL or 60611)

Help Me Find a Do-It-Yourself Solution