What Family and Medical Leave Laws Must Employers Follow?

This article discusses small business owners‘ responsibilities under the FMLA. For guidance tailored to your business, consult a local employment attorney.

Which Employers Must Comply With the FMLA?

The FMLA applies to specific “covered employers.” You must comply with FMLA regulations if your business or organization is one of the following:

• A private business with 50 or more employees for at least 20 weeks in the current or previous year
• Any public agency, including federal, state, and local government offices, regardless of the number of employees
• Any local educational agency, such as public school boards, and private elementary or secondary schools, regardless of the number of employees

Small businesses that are not required to offer FMLA may still choose to do so voluntarily. If they do, they must comply with all FMLA requirements.

Employee Eligibility Requirements

Not every employee is eligible for FMLA benefits, even if they work for a covered employer. For an employee to be eligible, they must meet all of the following criteria:

• Have worked for the employer for at least 12 months (the months do not need to be consecutive)
• Have worked at least 1,250 hours for the employer during the 12 months immediately preceding the leave
• Work at a location where the employer has 50 or more employees within a 75-mile radius

Independent contractors do not qualify for FMLA leave. Employers must be careful not to misclassify workers when determining FMLA eligibility.

What Are Employees Entitled to Under the FMLA?

Eligible employees can take up to 12 weeks of unpaid, job-protected leave during any 12-month period. For military caregiver leave, this can extend to 26 weeks. This entitlement includes:

• Job protection: Employers cannot fire or retaliate against an employee for taking FMLA leave. Upon their return, the employee must be restored to their original job or an equivalent position with similar duties, pay, and benefits.
• Unpaid leave: Employers are not required to pay employees during FMLA leave. However, company policy may require or permit employees to use their accrued paid leave, such as sick leave or PTO, during this period.
• Continuation of health benefits: Employers must maintain the employee’s health insurance coverage under the group health plan during their leave. This must be done under the same terms and conditions as if they had not taken leave.

A company’s policy should be outlined in the employee handbook and available to be discussed with the human resources (HR) department.

What Are Qualifying Reasons for FMLA Leave?

An employee must have a qualifying reason to take FMLA leave. These reasons include:

• The birth of a child and caring for the newborn within one year of birth
• The placement of a child with the employee for adoption or foster care within one year of placement
• Caring for an employee’s spouse, child, or parent who has a serious medical condition
• The employee’s own serious health condition that makes them unable to perform the essential functions of their job
• Any qualifying exigency arising because the employee’s spouse, son, daughter, or parent is a military member on covered active duty
• Caring for a covered service member with a serious injury or illness (military caregiver leave)

This is not an exhaustive list.

What Is a “Serious Health Condition?”

Not every illness qualifies for FMLA leave. The Department of Labor defines a serious health condition as an illness, injury, impairment, or physical or mental condition that involves:

• An overnight stay in a hospital, hospice, or residential medical care facility
• A condition that incapacitates the patient for more than three consecutive days and involves follow-up medical treatment
• A chronic condition that causes occasional periods of incapacitation and requires medical treatment at least twice a year

Minor issues like the common cold or flu typically do not qualify unless complications arise that meet the above criteria.

What Doesn’t FMLA Cover?

The above situations are examples of when the FMLA applies. An employee may need time off for other medical reasons, but FMLA does not cover them. These include:

• Time off to care for other family members: Siblings, in-laws, and other dependent adults and children are not immediate family members.
• Minor medical issues: FMLA does not cover colds, flu, sprained ankles, and other problems that keep workers home but don’t require medical intervention
• Wellness leave: The health benefits of time away from work are well known, but not covered by FMLA
• Healthy child care: Parents may need to stay home with their kids if their school or daycare is closed, but FMLA does not cover staying home to take care of healthy children

Small business owners may voluntarily choose to offer FMLA leave. If they do, they must comply with the FMLA’s requirements. The DOL offers additional Fact Sheets to help employers understand their obligations.

What Are an Employer’s Responsibilities Under the FMLA?

Covered employers have several key responsibilities to ensure compliance. These include:

• Posting notice: You must display a general FMLA notice in a conspicuous place where employees and applicants can see it. This poster explains FMLA provisions and employee rights. See FindLaw’s Required State and Federal Labor Posters page for more information.
• Handbook policy: If you have an employee handbook, it must include information about FMLA rights and responsibilities. This is in addition to any other policies you may have.
• Responding to leave requests: When an employee requests leave, you must notify them of their eligibility within five business days. If they are eligible, you must also provide a notice of their rights and responsibilities under the FMLA.
• Requesting certification: You may require medical certification to support a request for leave due to a serious health condition. You must give the employee at least 15 calendar days to obtain this certification.
• Recordkeeping: Employers must maintain records related to FMLA compliance for at least three years. These may be digital or paper.

Failing to meet these obligations can lead to civil penalties and lawsuits.

Do State Laws Offer Additional Leave?

Many states have their own family and medical leave laws that may offer greater benefits or cover smaller businesses. Fourteen states and the District of Columbia have mandatory paid family and medical leave programs. Some states also require school-related parent leave for things like parent-teacher conferences. Always check your state’s laws to ensure full compliance.

Questions About FMLA Compliance? Talk to an Attorney

Complying with federal and state family and medical leave laws is a complex but crucial task for businesses. If you have questions about FMLA requirements or need help creating compliant policies, consider contacting an experienced employment law attorney in your state. An attorney can provide critical legal advice to help ensure your business avoids costly fines and penalties.