Even though you’re tasked with doing pretty much everything to keep your small business operating smoothly, you’re not expected to be an expert in human resources. HR laws can be super complex, even if you only have to worry about a handful of employees. And if you don’t comply – that could mean big penalties for your business.
One of the laws our HR Advisory service frequently gets questions about is the Family and Medical Leave Act (FMLA).
To refresh: The FMLA enables eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons. Please note that this is a federal law and individual states may have other requirements for leave.
Follow the nine steps below to create and maintain a compliant FMLA policy for your small business.
1. First confirm if your company is covered under the FMLA. According to the Department of Labor (DOL), FMLA only applies to employers who meet this criteria:
- Private-sector employer with 50 or more employees in 20 or more workweeks in the current or preceding calendar year, including a joint employer or successor in interest to a covered employer;
- Public agency, including a local, state, or federal government agency, regardless of the number of employees;
- Or a public or private elementary or secondary school, regardless of the number of employees.
If you meet one of those three criteria, the DOL says that you are considered a covered employer.
2. Determine the 12-month measurement period for determining eligibility and administering leaves.
Generally, employers are able to select one of four options to establish the 12-month period to be uniformly applied to all employees who take FMLA leave. This fact sheet explains these measurement periods in depth.
3. Properly display the Notice of FMLA Rights.
Just like the other list of labor law posters you’re required to post, this notice should be displayed in a conspicuous place where your employees can view them. Find more information about this particular poster here.
PrimePay offers HR Advisory services if you need help in understanding if you are compliant.
4. Include qualifying reasons for employees to take FMLA leave in your policy.
According to the Wage and Hour Division of the DOL, here are the qualifying reasons.
- The birth of a child and to bond with the newborn within one year of birth.
- The placement with the employee of a child for adoption or foster care and to bond with the newly placed child. This must be within one year of placement.
- A serious health condition where the employee is unable to perform the functions of his or her job.
- To take care of the employee’s spouse, son, daughter, or parent who has a serious health condition.
- Any qualifying need arising out of the fact that the employee’s spouse, son, daughter, or parent is a military member on covered active duty.
- An eligible employee may also take up to 26 workweeks of FMLA leave in a single 12-month period to care for a covered service member with a serious injury or illness if the employee is the spouse, son, daughter, parent, or next of kin of the service member (military caregiver leave).
Of course these are general, and you should visit the link above to get into the specifics of these reasons, including the DOL’s definition of a spouse and parent.
5. Determine the method your employees must use to request the leave.
Effective communication is key when administering a successful FMLA policy. Want proof? Just check out this recent case where the court ruled that a New Jersey employer violated FMLA for failing to provide calculation of when leave expires.
Click here to learn more details about this step.
6. Figure out how benefits premiums will be collected from employees who take FMLA leave.
Here’s a great fact sheet from the DOL that will help explain this step.
Under this step, you’ll also need to determine how benefits will be handled following exhaustion of FMLA leave per your company policy and plan requirements.
7. Determine if and how employees will be paid during leave.
Remember, FMLA entitles eligible employees to take unpaid leave. But under certain conditions, employees may substitute (or run at the same time as their FMLA leave) accrued paid leave to cover some or all of the period of FMLA leave.
8. Establish comprehensive communication guidelines for employees while on FMLA leave.
If you peek back at No. 5 on this list, you know just how important communication is. That’s why this fact is getting its own bullet point!
9. Determine steps for when employees return and how to re-integrate them after their leave.
In general, an employee is entitled to return to the same position he or she held when leave began, or to an equivalent position with equivalent benefits, pay, and other terms and conditions of employment.