FMLA: When Does it Apply & How Should Organizations Handle it?

FMLA is a federal law that allows qualified individuals to take time off for personal or medical needs, but when exactly does it apply? Are there other resources that can supplement FMLA? When and how is an employee considered eligible? Read on to help your organization answer these questions and learn more about what FMLA entails and exactly how it works. 

What Is FMLA?

FMLA provides eligible employees with up to 12 weeks of unpaid, job-protected leave. According to the Department of Labor, employers with at least 50 employees are required by law to provide FMLA. This includes schools, public agencies, and public and private companies as well.

Employees of these covered entities are considered eligible for FMLA under the following conditions:

• The birth and care of a child 

• Fostering or adopting children

• Attending to the health needs of an immediate family member

• Medical leave due to serious health condition

How Does HR Handle FMLA?

It is crucial that HR maintain a clear understanding of all rules and regulations involving FMLA. In order to remain compliant, they will need to follow all requirements carefully and completely. 

This involves a number of preemptive measures to ensure employees are made aware of FMLA policies and procedures. Organizations must make available an FMLA notice somewhere employees will have ease of visibility. This ensures that employees can familiarize themselves with the basics of FMLA and learn how to file complaints with the Department of Labor should their rights be violated.

It’s important to note that organizations are still required to post this notice regardless of their employees’ FMLA status. This can be done in a culture guide or employee handbook. 

The notice must include the following information at a minimum:

• The employer’s set time frame for counting FMLA leave

• The requirements for furnishing certifications and consequences for lack of doing so

• Information involving the employee's rights, conditions involving substitution, and employees' rights to choose unpaid FMLA leave should the conditions be met

• All information and instruction regarding premium payments

• Notice of what constitutes a key employee

• An employee’s rights to maintain their job and benefits

HR must also maintain strict and detailed records of all FMLA requests, eligibility, and disputes. This includes leave dates, total hours, responses, policy details, payments, and any relevant medical records.

Lastly, make sure your organization stays up to date on the latest FMLA updates from the DOL to ensure compliance. 

Disability vs. FMLA

Many people confuse FMLA with disability but there are some distinct differences. Disability is a form of insurance that an individual may purchase to help supplement missing income, should an employee become sick or injured and unable to continue working. For example, if an employee cannot work due to a serious car crash and they have disability insurance, they will receive direct payments based on their policy and level of coverage. 

When it comes to disability there are two types, long-term and short-term. The amount of time that disability insurance lasts depends on each policy, but short-term or temporary disability is usually 3-6 months. Depending on the plan, long-term disability can provide coverage anywhere from 5-20 years, or until retirement.

The difference between disability and FMLA is that FMLA will always be offered by a covered organization and is unpaid. Disability on the other hand can cover different amounts of time depending upon the insurance offering. Disability will replace pay while the employee is unable to work. In addition, employees may need to pay separately for disability as there is no requirement for businesses to offer and supply this form of insurance. 

One thing to note is that while disability can supplement up to 60% of your paycheck, you will not be granted job protection with the insurance alone. FMLA, while unpaid, will protect your job for up to 12 weeks. 

When Does Eligibility Begin?

In order for an employee to be considered eligible for FMLA they must meet several key requirements: 

• They are employed by a covered employer

• They have worked at least 12 months prior to the leave start date 

• They have worked 1250 hours during this time frame

• They must be within 75 miles or less of at least 50 other employees 

Time worked does not need to be consecutive so long as it reaches 12 months. If an employee has spent time seasonally with an employer, they may use that time to qualify for the 12-month requirement. Once there is a break of 7 years or more, that time will no longer count toward the 12-month requirement with two exceptions: 

• Military service is covered under the Uniformed Services Employment and Reemployment Rights Act 

• A collective bargaining agreement whereby the employer intended to rehire the employee after the allotted time

If an employee has taken leave but is not yet eligible for FMLA, then they will not be considered eligible for the benefits of FMLA at that time. Should they qualify while already on non-FMLA leave, then any remaining time following that qualification date will be considered and recognized as FMLA leave.