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February 9, 2023

February Marks 30 Years of the FMLA. Here is a refresher on FMLA Compliance

On February 5, 1993, then President Clinton, signed into law the Family Medical Leave Act (FMLA). Thirty years later the U.S. Department of Labor is marking the occasion with events across the nation including the launch of a dedicated FMLA website providing new and updated resources.[i]

FMLA requires covered employers to provide eligible employees with leaves or a series of leaves totaling 12 weeks (26 weeks for servicemember care leave) in any 12-month period. Leaves may be taken for an employee’s own serious illness, the birth or adoption of a child, placement of a foster child, the care of a seriously ill family member, or for certain military family leaves with guarantees of job security and certain employment benefits during the leave.

FMLA covers employers who employ at least 50 employees within 75 miles of the employer’s work site (including full-time, part-time, and temporary employees) during at least 20 calendar weeks in the current or preceding calendar year. The 20 weeks need not be consecutive. An employee must have worked for the employer for at least 12 months and at least 1,250 hours over the prior 12-month period to be eligible for leave.

Employees may not lose employment benefits accrued before taking leave.

Important Notice Issues to Keep In Mind When it Comes to FMLA[ii]:

Employees must comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances. Notice must be provided to the employer:

  • 30 days in advance when the need for leave is foreseeable, or as soon as practicable if the need for leave is foreseeable less than 30 days in advance.
  • As soon as practicable if the need for leave is unforeseeable.

Employers may notify the employee that unreasonable failure to provide proper notice can result in delaying the leave until proper notice is given; if the employee fails to follow the employer’s internal leave rules, absent unusual circumstances, the employer can take appropriate action as long as it is not discriminatory.

Employers are required to notify employees of their eligibility for FMLA leave and rights and responsibilities regarding the leave within five business days of a request for FMLA leave or otherwise becoming aware of a possible need for FMLA leave, absent extenuating circumstances.

Employers can require certification of the need for leave as appropriate based on the type of leave. In most cases this request should be made at the time the employee gives notice of the leave or within five business days (or for unforeseeable leave, within five business days after the leave commences).

NOTE: Employees must provide the requested certification within fifteen calendar days of the employee’s request, unless it is not practicable despite the employee’s diligent, good faith efforts.

If the certification provided is incomplete or insufficient the employee must be given seven calendar days to cure the deficiencies (unless not practicable despite the employee’s diligent, good faith efforts).

Employers (absent extenuating circumstances) must provide a designation notice to the employee as to whether the leave will be counted as FMLA leave within five business days after the employer has enough information to determine whether the leave is being taken for an FMLA qualifying reason (e.g., after certification is received).

Employers can generally request recertification of the continuing need for leave (if leave is for the employee or a family member’s serious health condition) every 30 days if the employee remains absent from work. However, if the minimum duration of the condition is more than 30 days the employer can only request certification when the minimum duration expires, or every six months.

Additionally, a recertification can be requested in less than 30 days if the employee requests an extension of the leave; the circumstances of the prior certification have changed significantly; or the employer receives information that casts doubt on the employee’s reason for absence of the validity of the certification.

NOTE: Employee must provide the certification within the time requested by the employer but no sooner than fifteen calendar days after the employer request (unless not practicable to do so despite the employee’s diligent, good faith efforts).

Click here for additional information.

 


[i] Checkout resources for employers under the “For Employers” tab at the top of the website.

[ii] This timeline is specific to FMLA.