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FMLA at 25 Provides Challenges for Growing Companies

February 27, 2018
The federal Family and Medical Leave Act (FMLA) turns 25 this year. 
For established employers with 50 or more employees, the FMLA may present little to no challenge. For smaller and rapidly growing employers, however, the law may present a significant compliance challenge.
While the law sets out clear criteria on coverage, it also makes it clear that an employer with fewer than 50 employees may elect to be covered by the law. 
Does the FMLA apply to my company?
Covered employer –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. 
Eligible employee - Works for a covered employer, has worked for the employer for at least 12 months, has at least 1,250 hours of service for the employer during the 12-month period immediately preceding the leave and works at a location where the employer has at least 50 employees within 75 miles.
Leave Entitlement - Eligible employees may take up to 12 workweeks of leave in a 12-month period for one or more of the following reasons: 
  • The birth of a son or daughter or placement of a son or daughter with the employee for adoption or foster care; 
  • To care for a spouse, son, daughter, or parent who has a serious health condition; 
  • For a serious health condition that makes the employee unable to perform the essential functions of his or her job; 
  • For any qualifying exigency arising out of the fact that a spouse, son, daughter, or parent is a military member on covered active duty or call to covered active duty status; or
An eligible employee may also take up to 26 workweeks of leave during a "single 12-month period" to care for a covered service member with a serious injury or illness, when the employee is the spouse, son, daughter, parent, or next of kin of the servicemember. 
Using the Leave - In general, the leave may be used on a full-time, intermittent or reduced schedule basis, based on the supporting documentation. The most important exception is the one limiting the use of intermittent leave in connection with the birth or adoption of a child. In that case, intermittent leave is only available with the consent of the employer.  
Employee Notice
Employers must: 
  • Post a notice explaining rights and responsibilities under the FMLA. (Failure to post may lead to a penalty.)  
  • Include information about the FMLA in their employee handbooks or provide information to new employees upon hire; 
  • In response to an FMLA qualifying leave event, provide the employee with notice concerning the employee’s eligibility for FMLA leave, and rights and responsibilities under the FMLA; and 
  • Notify employees whether leave is an FMLA leave and the amount of leave that will be deducted from the employee’s FMLA entitlement. 
The necessary documents for this section are on the Department of Labor Web site
Paid Leave – No. The law provides that the benefit is paid or unpaid, at the employer’s discretion. Employers may allow employees to get pay or partial pay through allowing or requiring the employee to use earned sick time, paid time off or vacation time, or through short-term disability. The employer should state clearly in its FMLA policy how it intends to handle the paid leave issue. 
Designating the Leave – While based on the information presented by the employee, the employee’s spokesperson (e.g. spouse, other family member), and/or the medical professional, it is the employer’s responsibility to designate the FMLA leave. Depending on the circumstances, an employer may retroactively designate the leave. For example, when a presumed short period of absence turns into a much longer one, an employer may designate the time out of work back to the original date of absence. 
Principal FMLA benefits 
Job Reinstatement – Assuming the employee returns to work within the 12-week leave period, the employee must be reinstated to the same or similar job. The only exceptions are if the employee’s position would have been eliminated unrelated to the leave (i.e. layoff) or if the employee were a key employee (top 10 percent of employees by earnings) and the employer had to replace the person due to him or her being a key employee. Any employer considering using the key employee designation should review the FMLA regulations carefully prior to doing so to ensure compliance with the law. In the case of a key employee, all FMLA rights apply except the right to reinstatement. 
Health Insurance continuation – The employee is entitled to continue his/her group health insurance coverage at the same cost as if the employee were continuously working. The one issue for employers is to determine how the employee will pay the contribution. An employer may:
  • Let the employee pay the employee contribution in advance of the leave;
  • Let the employee pay monthly while on leave; or
  • Front the employee’s share while on leave and have the employee reimburse the employer after returning to work.
Any FMLA subject employer should familiarize itself with the resources on the U.S. Department of Labor Web site as a basis for complying with the law.  
Massachusetts leave laws that also apply at 50 employees
Massachusetts has two other leave laws that apply to employers with 50 or more employees. 
Small Necessities Leave Act (SNLA) – This law provides covered employees up to 24 hours of job protected leave to:
  • participate in school activities directly related to the educational advancement of a son or daughter of the employee, such as parent-teacher conferences or interviewing for a new school; 
  • accompany the son or daughter of the employee to routine medical or dental appointments, such as check-ups or vaccinations; and
  • accompany an elderly relative of the employee to routine medical or dental appointments or appointments for other professional services related to the elder's care, such as interviewing at nursing or group homes.
An Act Relative to Domestic Violence – This law provides victims of domestic violence with up to 15 days of job-protected leave per year. The leave is to be provided on a paid or unpaid basis, though bear in mind that the Earned Sick Time law provides that up to five days of earned sick time may be used for domestic violence-related leave.
Please contact the AIM Employer Hotline at 800-470-6277 if you have any questions about this or any other HR related matter.
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