Back to the Basics: FMLA

With the myriad of federal and state employment laws it’s easy to forget the basic application principles of each one. For the next few weeks, I plan on taking the time to outline the basic application factors of certain state and federal employment laws. It may seem basic, but getting back to the basics is helpful for a beginner in the employment law field and a good reminder for the seasoned veterans. I will begin with the Family Medical Leave Act (FMLA).

  • The FMLA applies to employers who have had 50 or more employees in 20 or more calendar weeks.
  • Eligible employees must meet the following criteria:
    • 12 cumulative months of employment within the previous seven years unless the break in service was for National Guard or Reserve military service or per a written agreement.
    • 1,250 hours actually worked during the 12 month period
    • Works at a site with 50 employees or where the employer has 50 employees within a 75-mile radius
  • The FMLA provides 12 unpaid workweeks of leave in a designated 12-month period for eligible employees and for the following reasons:
    • Birth, adoption or placement of a child for foster care
    • When the employee has a “serious health condition” that makes him/her unable to perform the functions of his/her position
    • The employee is needed to care for the employee’s parent, spouse or child with a “serious health condition” and
    • Qualifying exigency leave
  • The FMLA provides 26 unpaid workweeks of eave in a single 12-month period to care for an injured service member.
  • The FMLA leave may run concurrent with paid-time-off but employer’s can enforce notice policies for vacation and sick leave. For example, if an employer requires two weeks’ advance notice for vacation requests, an employee must give notice two weeks in advance to substitute vacation time for FMLA leave, even for unforeseeable FMLA leaves.
  • Leave may be consecutive, intermittent or on a part-time basis.
  • Employees must give 30 days’ notice if the leave is foreseeable. For unforeseeable reasons employees must give as much notice as practicable, which has recently been defined as within the deadlines and following the procedures prescribed by the employer’s usual notice requirements for missing work.
  • Employers are required to provide 4 notices to employees:
    • A general notice
    • An eligibility notice
    • A rights and responsibilities notice
    • A designation notice
  • Employers may request certification, recertification every 6 months for an ongoing condition, and require employees to submit a fitness for duty certification under certain circumstances
  • Employer must maintain health insurance coverage on FMLA leave on the same terms as if the employee continued to work, but is not required to maintain non-health benefits during unpaid leave provided that such benefits do not accrue for employees on other types of unpaid leave.
  • Generally, employees are entitled to return to a position that is the same with respect to job duties, pay, benefits and terms and conditions as before leave.

For more detailed information on the FMLA rules and regulations visit the Department of Labor's website or speak to your attorney.

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Comments (3) Read through and enter the discussion with the form at the end
Annette Grant - October 5, 2010 8:40 PM

Can my employee change my normal work hours once I am hired. I have a child with special needs and he is 10 years old and cannot be left alone by himself. I usually was working 8-4pm. Now he wants me to work 1-9pm. I have noone who will watch him. I can't afford a nurse to care for him. Will the family leave act cover me????

Tammy Byrd - July 29, 2011 8:36 AM

Is the employer responsible for letting the employee know that FMLA is available to him/her?

Liz - July 29, 2011 10:36 AM

@Tammy:Here is a link to the DOL compliance guide:

The compliance guide indicates that the employer does have responsibilties for informing employee's of their FMLA eligibility.

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