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The FMLA and Small Business Compliance

The Family and Medical Leave Act of 1993 (FMLA) provides unpaid leave to eligible employees. This federal law aims to:

  • Ensure workers have a balance between their personal lives and work
  • Promote equal employment opportunities

Generally, businesses with 50 or more employees must comply with the FMLA, although some exceptions apply. It provides workers a certain amount of time off (leave) due to medical necessity and family obligations. The law has eligibility requirements that employees must meet before using FMLA.

This article discusses the FMLA in depth. It starts with some frequently asked questions (FAQs) about the FMLA. It then explains which employers must comply with the FMLA's requirements and which employees qualify for FMLA leave. It concludes by describing different types of FMLA leave and an employer's obligations regarding FMLA leave.

Frequently Asked Questions

Before researching different aspects of the FMLA in-depth, consider these FAQs about FMLA leave.

When can an employee take FMLA leave?

The FMLA provides that eligible employees may take FMLA leave for several reasons. For example, parents may take FMLA leave to care for their newborn child. A caregiver may take FMLA leave to care for an immediate family member who suffers from a serious medical condition. Also, someone may take FMLA leave due to their own serious health condition. This article explains these situations, and others, in more depth below.

Who can take FMLA leave?

Only eligible employees may take FMLA leave. The FMLA requires that employees work for an employer for at least 12 months and at least 1,250 hours in a 12-month period before they take leave. The FMLA also has several other requirements. For more information about who can take leave, read the Eligible Employees section below.

How long is FMLA leave?

Generally, eligible employees may take up to 12 weeks of FMLA leave in a 12-month time period. However, employees who must take care of a military member who suffers an illness or injury due to their military service may take up to 26 weeks of FMLA leave in a 12-month period. The Qualifying Reasons for FMLA Leave section below provides more information.

Do employees who take FMLA leave get paid?

No, the law does not require employers to pay eligible employees who request FMLA leave. FMLA leave is not the same as sick leave, paid time off (PTO), or other forms of employer-provided paid leave.

Employees may, however, use available paid leave while on FMLA leave if the paid leave covers the reason they took FMLA leave. For example, if someone takes FMLA leave for their own medical condition, they may also use the sick leave they previously earned.

Do employees who take FMLA leave lose their jobs and benefits?

No. Employers must generally return employees who take FMLA leave to their positions under the same terms and conditions as if they had not taken leave. This is known as job-protected leave. Employers also must provide continuation of health insurance coverage or health benefits, if applicable.

What responsibilities does the FMLA place on an employer?

The FMLA places several responsibilities upon covered employers, including:

  • Recordkeeping requirements
  • Returning an employee to the same or an equivalent position when they return to work
  • Providing notice to employees about FMLA leave
  • Providing a rights and responsibilities notice to employees who request FMLA leave

Read the FMLA Compliance and Employer Responsibilities section below for more information about employer responsibilities.

Employers must also follow state laws and local medical and family leave regulations that provide more protections to workers than their FMLA counterparts. For example, some states provide family and medical leave coverage for businesses with fewer than 50 employees. Check your state's family and medical leave laws before administering an employee's leave request.

Not all employers must provide FMLA-protected leave. Employers with over 50 employees must typically provide FMLA leave. For more information about covered employers, read the following section.

Covered Employers and FMLA Requirements

The FMLA applies to covered employers. Covered employers include the following:

  • A private-sector employer with 50 or more employees is subject to FMLA requirements.
  • A public agency is subject to FMLA requirements regardless of the number of employees. Examples of public agencies include the federal government, state governments, or state agencies.
  • Public and private schools are subject to FMLA requirements regardless of the number of employees.

There are, however, other types of employers who must provide FMLA coverage.

Integrated Employers

Separate businesses may constitute a single employer for the FMLA's purposes. The FMLA classifies these separate businesses as integrated employers. The FMLA considers the following factors to determine whether separate businesses constitute a single employer for coverage purposes:

  • Whether the businesses share joint management
  • The interrelation, if any, between the businesses
  • Whether the labor relations of each business are centralized
  • Whether or to what degree the businesses share common ownership or financial control

Consider contacting a business attorney for more information about whether your business qualifies as an integrated employer.

Joint Employers

Sometimes, employees are doubly covered by the FMLA. For instance, temporary employment agencies often loan people to other employers. The temporary employer and the other employer must count the employee for FMLA purposes. The FMLA refers to these employers as joint employers.

Small-business owners should pay special attention to their employee count if they share employees as a joint employer. For example, suppose a small business has 20 employees. They then hire 30 temporary employees from an agency. At that point, they have 50 employees, which subjects them to the FMLA's requirements.

In the above situation, suppose one of the joint employees requests FMLA leave to care for a newborn baby. Whether the employer or the temporary agency is responsible for FMLA-covered leave requirements depends on the following factors:

  • Who has direct control of the employee's work duties
  • Who can hire or fire the employee
  • Who determined the employee's wages and frequency of payment
  • Who provides leave
  • Who provides benefits, if any, to the employee

The U.S. Department of Labor (DOL) notes that the temporary agency is typically the primary employer, while the employer receiving borrowed employees is the secondary employer. Generally, the primary employer provides health insurance to the covered employee during leave and places the employee back into an equivalent job upon their return. In some circumstances, the secondary employer is responsible for those tasks. For more information, read the DOL's Fact Sheet on Joint Employment.

Successor Employers

A business that acquires a covered employer may become a successor employer. The FMLA considers the following factors when determining whether the acquiring employer is a successor employer:

  • Whether the acquiring business continues the acquired company's business
  • Whether the acquiring business continues to provide products or services similar to the acquired company
  • Whether the acquiring business kept the acquired business's employees and/or supervisor structure
  • Whether the acquiring business continues to use the acquired business's facilities, location, and equipment

This article focuses on private-sector employers. For more information about covered employers, visit the FMLA website or read the Employer's Guide to the FMLA.

Private-Sector Covered Employers

The FMLA applies to private employers who employ 50 or more employees. An employee is any person "suffered or permitted" to work under the Fair Labor Standards Act. The employees must work 20 workweeks in the current or previous calendar year for the FMLA to apply. The DOL notes that the FMLA does not require the workweeks to be consecutive. Additionally, if a person works one day a week, the FMLA considers that week a workweek.

The FMLA requires employers to consider the following people as employees:

  • Anyone who works in the United States (or a United States territory)
  • Any person who appears on the employer's payroll records, regardless of whether the employee compensates them
  • Any person on paid or unpaid leave, assuming there is a reasonable expectation the person will return to work
  • Employees of a foreign firm that operates in the United States
  • Anyone who works part time, full time, temporarily, or seasonally

The FMLA does not require employers to consider the following people as employees:

  • Anyone whose employment ends with the employer (e.g., firings and layoffs)
  • Volunteers whom the employer does not pay and who do not appear on the employer's payroll
  • Anyone who works outside of the United States (or a United States territory)
  • Employees of foreign firms that do not operate in the United States

Once an employer meets the FMLA's definition of covered, it remains covered so long as it employs 50 or more employees in 20 or more workweeks in the current or previous calendar year.

Eligible Employees

Not every employee is eligible for FMLA benefits. An employee must meet the following criteria to have FMLA leave eligibility:

  • They must work for the employer for at least 12 months before the first day of leave. The 12 months do not have to be consecutive; any combination of 52 weeks counts as 12 months.
  • They worked at least 1,250 hours during the 12 months before their first day of leave.
  • They work for a covered employer.
  • They work for the covered employer at a location that employs 50 or more employees within 75 miles of said location.

Employees who do not meet all the criteria cannot take FMLA leave. Instead, the employee and employer may discuss other leave options under the employer's policy. If the employee becomes FMLA-eligible during the agreed-upon leave, the FMLA may protect the rest of the leave.

The FMLA requires employees to give proper notice to their employer about taking leave (usually 30 days). They must give notice as soon as possible for unexpected leaves.

Employers generally have a right to inquire about an employee's request for FMLA, and they can require the employee to provide specific certifications. Employers also have certain FMLA recordkeeping requirements.

Qualifying Reasons for FMLA Leave

The FMLA provides eligible employees 12 work weeks of unpaid leave within a 12-month period for the following circumstances:

  • The birth of a child and caring for a newborn within its first year (this is available to both mothers and fathers)
  • The placement of a child with an employee for adoption or foster care within the first year of placement
  • Caring for an employee's spouse, child, or parent with a serious health condition
  • Certain other medical reasons, such as the employee's own serious health condition that interferes with their ability to perform their job's essential duties
  • Any qualifying exigency (details below) related to the fact that an employee's spouse, child, or parent is on active military duty

Employees may take up to 26 weeks of leave within a 12-month period to perform caregiving services for an immediate family member who is a service member and sustained a serious injury.

The FMLA limits an employee to a combined 26 weeks of leave during a single 12-month period. Employees may take all their FMLA leave at one time. Alternatively, they may take intermittent leave, which means they take leave at different times. For example, depending on the situation, an employee may use FMLA in different increments, such as every other week off or working a reduced schedule. Such situations often require employer approval, however.

Military Leave: Qualifying Exigencies

The DOL identifies various activities and circumstances that may qualify a covered employee for FMLA leave concerning active military duty. The following list provides various qualifying exigencies, although employers and employees may agree on other leave policies:

  • Up to seven days leave from the date of notification for a covered military member's short-notice deployment (i.e., deployment on seven days of notice or less)
  • Military events, such as official ceremonies and military-sponsored informational briefings (including American Red Cross events)
  • Some child care activities arising from the call to active duty military service, such as arranging for child care and transferring children to a new school
  • Making financial and legal arrangements related to a covered military member's active duty
  • Attending counseling for oneself, a covered military member, or a military member's child (pertaining to a call to active duty)
  • Up to five days leave to spend with a covered military member on short-term or temporary R&R leave during deployment
  • For the attendance of some post-deployment activities, such as arrival ceremonies and reintegration briefings, for up to 90 days following the termination of active duty status (or for the death of a service member)

Covered employees who face a qualifying exigency must give notice of leave to their employer as soon as possible.

FMLA Compliance and Employer Responsibilities

Covered employers must post a notice of FMLA regulations in plain view for their employees. The notice must explain the employee's legal rights and obligations. Employers' handbooks (or similar literature) must explain employee benefits and FMLA rights and responsibilities. See FindLaw's Required State and Federal Labor Posters page for FMLA and other posting requirements.

An employee requesting leave under FMLA need not explicitly identify it as FMLA leave. However, when they request FMLA leave, the employer must notify them of their rights and obligations. Failing to provide employees with notice of their rights and responsibilities may subject the employer to civil penalties. Once the employer confirms that the employee's leave request falls under the FMLA's protections, the employer must inform the employee that the absence counts as FMLA leave.

Employers may require medical certification for a leave request related to an employee's serious health condition. The law does not require an employer to obtain such certification. The employer also may request second or third opinions, periodic recertification, and certification that an employee may safely resume work. An employer's policy requiring medical certification must apply equally to all employees.

Once an employee returns from FMLA leave, the employer must restore the employee to either:

  • Their original position, or
  • A different position with similar duties and equivalent pay and benefits

Employers cannot make employment decisions based on an employee's FMLA leave. In other words, an employer cannot fire a worker just because they took FMLA leave. Employers also cannot retaliate against an employee who takes FMLA leave. The law does not require employers to pay employees bonuses they could have earned without the leave.

Small Businesses and the Option To Provide FMLA Coverage

Employers with less than 50 employees do not have to comply with the FMLA. However, see the above section regarding joint employers for situations where small businesses may have to comply with the FMLA.

Due to state rules and regulations, small businesses may have to offer paid family or medical leave. Check your state's laws regarding paid leave for more information.

A small business may voluntarily choose to offer FMLA leave. If they so choose, they must comply with the FMLA's requirements, like any other business that offers it. For more information about FMLA coverage, consider browsing the DOL's various Fact Sheets.

Questions About FMLA Compliance? Talk to an Attorney

Complying with the FMLA's requirements is a complex but crucial task for businesses. If you have questions about your business's compliance, consider contacting an experienced business attorney in your state. An attorney can provide critical legal advice, such as the following:

  • Coordination between your human resources department and the DOL regarding FMLA requirements and compliance
  • Legal advice regarding FMLA compliance language in the employee handbook
  • Whether the FMLA applies to specific employee leave requests
  • General information about FMLA rules

Failing to comply with the FMLA may lead to significant fines and penalties. Contact a business attorney today to ensure your business complies with the FMLA's rules.

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