The Family Medical Leave Act: FAQs for Employers

Posted January 7, 2019 by Justworks in Keeping Compliant
As an employer, it’s key to understand the rules and requirements of FMLA — including which employees are eligible and for what reasons.

The Family Medical Leave Act, commonly referred to as FMLA, requires some employers to provide their workers with job-protected, unpaid leave in the case of certain family or medical circumstances. Before the FMLA passed in 1993, it wasn’t uncommon for employees to lose their jobs if they needed time off for illness or pregnancy, or to care for a sick family member.

FMLA applies to “covered” employers — generally speaking, this means private-sector companies with more than 50 employees, as well as public agencies and schools with any number of workers. For startups and growing businesses, you may reach this number of employees faster than you think. It’s important for all employers to understand the rules and requirements of FMLA so that you are in compliance with the law and can clearly convey to employees their rights.

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FAQs About the FMLA

For a short introduction to the Family and Medical Leave Act, check out this 60-second explainer video:

Here are some answers to a few common questions from employers about the Family Medical Leave Act. These FAQs are intended as a helpful starting point — if you need more information, check out The Employer’s Guide to the Family and Medical Leave Act, a comprehensive guide produced by the U.S. Department of Labor.

Is my company required to offer FMLA?

Requirements for covered employers vary based on whether your company is in the public or private sector. According to the Department of Labor, “A private-sector employer is covered by the FMLA if it employs 50 or more employees in 20 or more workweeks in the current or previous calendar year.” This includes part-time or seasonal employees, as well as workers out on paid or unpaid leave.

For companies right on the edge of the requirements, keep in mind that once your company meets the employee requirement for FMLA coverage, you will remain a covered employer for the following year. In other words, if you employed 50 or more employees in 20 or more workweeks in the previous calendar year, you must provide FMLA coverage to employees in the current calendar year (even if your number of employees drops to, say, 47).

For public agencies and schools, the employee number requirement doesn’t apply — these employers are required to offer FMLA regardless of how many people they employ.

Which of my employees are eligible for FMLA?

The main eligibility requirements have to do with how long the employee has been with your company and how many hours they have worked. Eligible workers must have been employed at your business for at least 12 months prior to the date of the proposed leave, and have completed at least 1,250 hours of work (about 24 hours/week) during that time. (The 12 month time period does not need to be consecutive, so again, part-time or seasonal workers may be eligible.)

Another requirement has to do with the number of employees in proximity to the worksite of the employee in question: the employee must work “at a location where the employer employs at least 50 employees within 75 miles of that worksite as of the date when the employee gives notice of the need for leave,” according to the Department of Labor.

For example, if your company is a covered employer, but one of your employees is the sole worker at a given worksite and there are no other workers within 75 miles, she may not be eligible for FMLA. Note that a person’s home does not qualify as a “worksite” — so in the case of remote employees, these individuals’ worksite is considered the office they report to.

What are the qualifying reasons for FMLA leave?

Eligible employees are entitled to up to 12 workweeks of leave in a 12-month period for:

  • Childbirth/Adoption: Parents are entitled to FMLA leave for the birth of a child and/or bonding with a child within one year of birth. Adoptive parents are similarly entitled to leave to bond a child within one year of the child’s placement.
  • Serious Health Condition: Under the law, a serious health condition is one that “makes the employee unable to perform the functions of his or her job, including incapacity due to pregnancy and for prenatal medical care.”
  • Serious Health Condition in Close Family Member: Your employee may take FMLA to care for a spouse, son, daughter, or parent with a serious health condition.
  • Military Service of a Close Family Member: If a spouse, son, daughter, or parent is a military member on covered active duty, your employee may take FMLA leave. Employees may take up 26 weeks of leave in a 12 month period for military caregiver leave (that is, to care for a servicemember with a serious injury or illness — the servicemember must be the employee’s spouse, son, daughter, parent, or next of kin)

Related Article: 6 Paid and Unpaid Leave Laws Every Employer Should Know About

What qualifies as a serious health condition for FMLA?

To qualify for FMLA leave, employees (or their family members) must be in inpatient care or require continuing treatment by a doctor or health care provider. Examples of qualifying conditions include pregnancy, chronic conditions like diabetes or asthma, permanent conditions like Alzheimer’s or terminal cancer, or surgeries that require repeated treatments. More detailed information on requirements can be found in the Department of Labor’s employer guide.

What’s the difference between FMLA and short-term disability?

Short-term disability is usually part of a private insurance program. This program may be offered by you as the employer; either you or your employees can pay for the policy. Employees may also purchase short-term disability policies on their own if you do not offer the program. There are only five states that require employers to purchase short-term disability for their workers — California, Hawaii, New Jersey, New York, and Rhode Island.

Unlike FMLA, short-term disability is a paid benefit — so if a worker needs to be absent from work due to pregnancy, illness, or injury, this insurance will replace some portion of their wages. There are a few other notable differences. For example, unlike the FMLA, short-term disability does not:

  • Cover pre-existing conditions
  • Cover family members’ illnesses
  • Cover adoption of a child or bonding with an adopted child
  • Protect the employee’s jobs and ensure their health insurance will continue

What’s the difference between FMLA, Workers’ Compensation, and the Americans with Disability Act (ADA)?

Workers’ Compensation is a much broader form of insurance that applies to nearly every employer/employee. The laws are governed by states, so specific coverage varies, but in most places, any employee who has an injury on the job will be covered for some portion of their paycheck.

Related Article: Managing an Employee with a Medical Condition: What the Law Has to Say

Like FMLA, the ADA is a federal law. One of its components prohibits covered employers — usually those with more than 15 employees, in addition to some other agencies and organizations — from discriminating against individuals with disabilities. While the ADA does not require employers to provide medical or disability-related leave, it does require “reasonable accommodation” — for example, modified work schedules or access to assistive technologies as needed.

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According to the U.S. Department of Labor, “When employees need time off because of a medical or disability-related issue, it is important to remember that they may have rights under all these laws” — ADA, FMLA, and Workers’ Compensation — simultaneously. “For example, a Workers' Compensation injury that requires hospitalization or incapacitates an employee for more than three days and requires continuing treatment by a healthcare provider generally qualifies as a serious health condition under the FMLA. If the injury causes a permanent mental or physical impairment that substantially limits a major life activity, that same employee could be entitled to additional leave as a reasonable accommodation under the ADA.”

As an employer, you should also be cognizant of any family and medical leave acts enacted on the state level. For example, a few states — namely California, New Jersey, Rhode Island, and New York — offer paid family and medical leave funded through employee-paid payroll taxes. The general rule of thumb is that your workers are entitled to whichever coverage is more generous.

For more help making sense of laws around medical and disability-related leaves, refer to this article from the U.S. Department of Labor.

What notice do I need to provide to employees about the FMLA?

All covered employers must provide a required notice to their workers to inform of their rights under the FMLA. This includes:

  • Displaying an FMLA poster
  • Notifying employees about their eligibility status the first time the employee takes FMLA leave within a 12-month leave period, within 5 days of the request for leave

For more information, refer to this fact sheet from the U.S. Department of Labor.

This material has been prepared for informational purposes only, and is not intended to provide, and should not be relied on for, legal or tax advice. If you have any legal or tax questions regarding this content or related issues, then you should consult with your professional legal or tax advisor.