Compliance Corner: Q&A on FMLA

Friday May 28th, 2021

Estimated time to read: 3 minutes

There are many employee-specific laws and regulations that employers need to be aware of – ranging in scope from EEO-1 reporting to processing I-9 forms and much more.

Every month, isolved’s People Services team tackles topics like these in a Compliance Corner Q&A. This month, HR Business Partner Gary Churnovic is taking on the topic of the Family Medical Leave Act. Find out the answers to common FMLA questions employers have by reading the Q&A below:*

1. What is FMLA?

According to the Department of Labor, the Family Medical Leave Act (FMLA) entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave.

2. Do all employers need to provide FMLA coverage?

No, only private employers with 50 or more employees and all state, local and federal government employers are required to provide leave. Some states may also have individual laws governing medical-related leaves.

3. When is an employee eligible for FMLA leave?

In order to be eligible to take leave under the FMLA, an employee must (1) work for a covered employer and (2) work 1,250 hours during the 12 months prior to the start of leave. However, it is important to note that some states may have different eligibility rules.

4. Do employees get paid during FMLA leave?

On a federal level, the FMLA only requires unpaid leave. However, the law permits an employee to elect, or the employer to require the employee, to use accrued paid vacation leave, paid sick or family leave for some or all of the FMLA leave period. Some states mandate paid family leave, which is why it is important to check your state of operation.

5. What are some of the common reasons why employees take FMLA leave?

Eligible employees may take FMLA for their own serious health condition, to care for a child or parent with a serious health condition, or for the birth or adoption of a child.

6. How far in advance do employees need to provide notice to their employer before taking FMLA leave?

Employees must give notice at least 30 days in advance if their need for FMLA leave is foreseeable (for example, for non-emergency surgery). Employees who need leave for an unforeseeable reason must give as much notice as is practical, usually the same or next business day after the employee learns of the need for leave.

7. What proof does an employee need to provide to their employer in order to take FMLA leave?

An employer may require that the need for leave for a serious health condition of the employee or the employee’s immediate family member be supported by a certification issued by a health care provider – Certification of Health Care Provider forms can be found on the U.S. Department of Labor, Wage and Hour Division website. The employer must allow the employee at least 15 calendar days to obtain the medical certification.

8. Do employees need to take FMLA leave all at once or can time off be split up?

When it is medically necessary, employees may take FMLA leave intermittently, taking leave in separate blocks of time for a single qualifying reason – or on a reduced leave schedule – reducing the employee's usual weekly or daily work schedule.

9. Can employers change an employee’s job/position when they are on FMLA leave?

Yes, in some cases. Generally, unless an employment contract or a collective bargaining agreement states otherwise,an employer may change an employee's job duties, schedule or work location without the employee's consent, within reason (employers must be able to show a business reason for the decision and ensure it is not retaliatory). Upon returning from FMLA leave, employees must be reinstated to their job or an equivalent one.

10. Do employees need to provide proof that they are healthy before returning to work after FMLA leave has ended?

As a condition of restoring an employee whose FMLA leave was due to the employee's own serious health condition that made the employee unable to perform the employee's job, an employer may have a uniformly-applied policy or practice that requires all similarly-situated employees to obtain and present certification from the employee's health care provider that the employee is able to resume work. Keep in mind that in some instances, employers may need to consider reasonable accommodations under the Americans with Disabilities Act (ADA).

Gary is part of isolved’s People Services team and has more than 30 years of experience in HR. His areas of expertise include employee relations, policy development, recruitment and compliance. Throughout his career, Gary has worked within the health care, manufacturing, marketing, retail, banking and finance industries.

isolved People Services is following the ever-changing regulations that employers need to know about as part of our commitment to our customers. Should new legislation related to paid family leave pass, our team is prepared to help employers navigate updates that could impact their business.

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