FMLA – we’ve all heard of it, but what exactly is it and what does it require?
The Family Medical Leave Act (FMLA) is an expansive federal regulation that safeguards an employee’s job when that employee requires a family or medical related absence from work. In addition, FMLA provides for continuation of health coverage while a person is taking FMLA leave under the same terms as if the employee was still on the job.
What employers have to comply with FMLA?
FMLA applies to private-sector large employers (averaging 50 or more employees for 20 or more weeks in the current or prior calendar year). FMLA also applies to all public agencies and local educational agencies, regardless of the number of employees. This includes federal, state and local governments, public school boards, and public and private elementary and secondary schools.
To calculate the number of employees employed during each week of the calendar year, an employer must count any employee whose name appears on the employer’s payroll employed each working day of the calendar week, regardless of whether they received any compensation for the week. This includes full-time, part-time, seasonal and variable hour employees. Each employee is counted as a single employee towards the 50 employee threshold, meaning that part-time workers are not counted as fractional employees as they are for COBRA and ACA purposes.
Related employers must aggregate their total employees to determine FMLA applicability. These ‘integrated employers’ are considered a single entity where there is sufficient common management and control between the companies. If the corporations, as a whole, employ more than 50 employees for 20 or more weeks in the current or prior calendar year, then they are all subject to FMLA.
What does FMLA require?
Large employers subject to FMLA must provide up to twelve (12) weeks of protected leave to qualified employees for specified, family-related reasons, such as the birth or adoption of a child, to care for a family member with a serious medical condition, or to care for oneself when the employee has a serious medical condition.
Who is eligible for FMLA?
To be entitled to FMLA leave, an individual must be considered a qualified employee. This means that, prior to the start of their protected leave, they have worked for a covered employer for at least twelve (12) months cumulatively, for at least 1,250 hours. In addition, to be entitled to FMLA leave, their employer must employ at least 50 employees within 75-miles of the workplace at which the employee works.
What constitutes protected FMLA leave?
Only certain situations will give rise to protected FMLA leave.
- The birth and care of a child;
- Placement of a child for adoption or foster care;
- To care for a family member with a serious health condition;
- To care for oneself when the employee has a serious health condition;
- Due to a ‘qualifying exigency’ due to a family member’s active duty status in the Armed Forces
- To care for a ‘covered service member’ with a serious injury or illness.
The Department of Labor (DOL) has defined a ‘serious health condition’ as an illness, injury, impairment, or physical or mental condition that involves either: 1) inpatient care in a hospital, hospice, or residential medical care facility; or 2) continuing treatment by a health care provider.
Interestingly, the DOL has released recent guidance confirming that organ donation surgery can qualify as a ‘serious health condition’ entitling a person to qualified FMLA leave.
For more information regarding FMLA or whether leave qualifies as protected leave under FMLA, click here.
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