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The FMLA covers all public employers as well as privatre employers with 50 or more employees for each working day during 20 or more calendar workweeks in the current or preceding calendar year. Full-time, part-time, temporary, or even seasonal workers may be eligible for FMLA leave, as long as they are on the payroll and satisfy a three-prong test:
- Minimum Service Requirement: The employee has worked for the employer for at least 12 months (not necessarily consecutive) at the time the leave is to commence;
- Minimum Hours Requirement: The employee has worked for the employer for at least 1,250 hours during the consecutive 12-month period before the leave begins; and
- Minimum Employee-Count Requirement: The employee works at a worksite that employs at least 50 employees at or within a 75-mile radius of that worksite.
These eligibility requirements are explained in further detail below.
The minimum-service requirement is calculated as of the date leave begins, not the date leave is requested. If an employee requests leave before the eligibility criteria is met, the employer may have to project to when the date of leave is scheduled to begin to determine if the employee will be eligible for leave.
The 12-month service requirement does not require consecutive months of service and includes periods of paid or unpaid leave (sick, vacation) during which other benefits or compensation are provided by the employer (workers’ compensation, group health plan benefits, etc.).
The employee must work for the employer for at least 1,250 hours during the 12-month period before the leave begins.Hours an employee was on vacation or on leave, even if the vacation or leave is paid, do not count as time actually worked and are not included in determining if an employee satisfies the 1,250-hour threshold.
Minimum Employee-Count Requirement
To satisfy this portion of the test, an employee must work at a location that has at least 50 employees at that site or within 75 miles of that worksite. This evaluation is made when the employee requests leave, not when the employee begins leave. Once an employee is determined eligible for leave, his or her eligibility is not affected by an employee count that drops below 50. To be counted toward the 50 employee size threshold, employees must be on the payroll for each working day during 20 or more calendar workweeks in either the current or the preceding calendar year.
Leave for Pregnancy, Birth, Adoption or Foster Care:
Both parents are entitled to FMLA leave for the birth of a child or the placement of a son or daughter in the employee’s care following adoption or a foster arrangement. An employee is eligible to take up to 12 weeks of leave within one year of the child’s date of birth or placement.
Intermittent or reduced schedule leave: An eligible employee may use intermittent leave (leave used in separate blocks of time for a single qualifying reason) or reduced schedule leave (a type of intermittent leave that results in a change to an employee’s usual number of work hours per day or per week) following the birth or placement of a child only if the employer agrees. Note:The employer’s consent is not required for intermittent leave taken for a newborn child’s serious health condition.
Leave for Serious Health Condition:
Eligible employees can take up to 12 weeks of unpaid leave in a one year period for their own serious health condition or to care for the employee’s spouse, child, or parent who has a serious health condition. A serious health condition is defined as an illness, injury, impairment, or physical or mental condition that involves:
- Any period of incapacity or treatment connected with inpatient care (an overnight stay) in a hospital, hospice, or residential medical care facility;
- A period of incapacity requiring absence of more than three calendar days from work, school, or other regular daily activities that also involves continuing treatment by (or under the supervision of) a health care provider;
- Any period of incapacity due to pregnancy, or for prenatal care;
- Any period of incapacity or treatment for a chronic serious health condition;
- A period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective; or
- Any absence to receive multiple treatments (including any period of recovery from such treatments) by a health care provider for a condition that likely would result in incapacity of more than three consecutive days if left untreated.
Leave for this purpose may be taken on an intermittent or reduced schedule basis.
Spouses who work for the same employer: Spouses who are eligible for FMLA leave and are employed by the same employer may be limited to a combined total of 12 weeks of leave during any 12-month period for the employee’s parent with a serious health condition, for the birth or placement of a child.
Leave for a Qualifying Exigency:
Eligible employees can take up to 12 weeks of unpaid leave for qualifying exigencies arising when the employee’s spouse, son, daughter, or parent is on covered active duty, or has been notified of an impending call or order to active duty in a foreign country. Qualifying exigency leave is intended to allow eligible employees to take FMLA leave to address common issues that arise when a covered military member is deployed, such as attending military-sponsored functions, making appropriate financial and legal arrangements, and arranging for alternative childcare.
FMLA leave may be taken intermittently for a qualifying exigency arising out of the covered active duty status or call to covered active duty of a covered military member.
Military Caregiver Leave:
A covered employer must grant an eligible employee up to 26 weeks of unpaid leave in a 12-month period to care for a covered service member with a serious injury or illness. An employee can take military caregiver leave if they are a spouse, son, daughter, parent, or next of kin of a covered service member with a serious injury or illness.
The “single 12-month period” for leave to care for a covered service member with a serious injury or illness begins on the first day the employee takes leave for this reason and ends 12 months later, regardless of the 12 month period established by the employer for purposes of tracking other types of FMLA leave (see the Tracking Leave section for more information on this topic). An eligible employee is limited to a combined total of 26 workweeks of leave for any FMLA-qualifying reason during the “single 12-month period.”
Military caregiver leave may be taken intermittently whenever medically necessary to care for a covered service member with a serious injury or illness. When leave is needed for planned medical treatment, the employee must make a reasonable effort to schedule treatment to avoid unduly disrupting the employer’s operations.
Note on family members:
Under the FMLA, the definition of “son or daughter” includes biological and adopted children as well as a “foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis.” The definition of spouse includes couples in a legal same-sex marriage, regardless of whether the employee is located in a state that recognizes same-sex marriage.
Covered employers must post, in a conspicuous area of the workplace, the Employee Rights and Responsibilities under the Family and Medical Leave Act (WH Form 1420) notice and either:
- Include this notice in the employee handbook or other written materials concerning employee benefits or leave rights; or
- Distribute a copy of the notice to each employee upon hire if a handbook or other written material does not exist.
Notice of Eligibility and Rights and Responsibilities:
When an employee requests FMLA leave, or when the employer acquires knowledge that an employee’s leave may be for an FMLA-qualifying reason, the employer must provide the employee with Form WH 381 (Notice of Eligibility and Rights & Responsibilities). This notice must be provided within five business days and include the following information:
- Part A: The employer must indicate whether the employee is eligible for FMLA leave. If the employee is ineligible for FMLA leave, the employer must indicate why.
- Part B: If the employee is eligible for leave, this portion of the form explains their rights and responsibilities while on leave.
If an employee provides notice of a subsequent need for FMLA leave during the applicable 12-month period due to a different FMLA-qualifying reason, and there is no change to the employee’s eligibility status, you are not required to provide an additional eligibility notice. If, however, the employee’s eligibility status has changed, you must notify the employee within five business days, absent extenuating circumstances.
When the employer has enough information to determine whether the requested leave is for a FMLA-qualifying reason, the employer must notify the employee whether the leave will be designated as FMLA leave. This Designation Notice (Form WH-382)must be provided to the employee within five business days, absent extenuating circumstances. Among other things, the form must indicate whether the employee:
- Must use their accrued paid leave during FMLA leave.
- Will be required to present a fitness for duty certificate before returning to work. If this requirement extends to the employee’s ability to perform the essential functions of the job, you must attach a list of the employee’s essential job functions.
Intent to Return to Work:
An employer may require an employee on FMLA leave to report periodically on their status and intent to return to work, as long as the employer applies the policy consistently and in a nondiscriminatory manner.
If an employee gives explicit notice of their intention to not return to work, the employer’s obligations to maintain health benefits (subject to COBRA requirements) and to restore the employee to his or her position cease. However, these obligations continue if an employee indicates he or she may be unable to return to work but expresses a continuing desire to do so.
Upon return from FMLA leave, an employee must be restored to his or her original job, or to an “equivalent” job (virtually identical to the original job in pay, benefits, and other terms and conditions of employment). An employee’s use of FMLA leave cannot result in the loss of any employment benefit that the employee earned or was entitled to before using (but not necessarily during) FMLA leave.
‘Key’ Employee Exception:
Under limited circumstances where job restoration will cause “substantial and grievous economic injury” to its operations, an employer may refuse to reinstate certain highly-paid “key” employees. A key employee is a salaried employee who is in the highest paid 10 percent of the employer’s workforce within 75 miles of his or her worksite.
In order for this exception to apply, the employer must notify the employee in writing of his/her status as a “key” employee (as defined by the FMLA), the reasons for denying job restoration, and provide the employee a reasonable opportunity to make a written request to return to work after the employer’s notification.
The FMLA requires covered employers to maintain, for a period of three years, records of:
- Dates FMLA leave is taken
- Hours of FMLA leave, if taken in increments of less than one full day
- Copies of all notices provided to employees related to FMLA leave, including Designation Notices and Notices of Eligibility
- Copies of requests for FMLA leave
- Records of any disputes regarding the designation of FMLA leave
- FMLA-related medical records and documents (when FMLA leave is taken for a serious health condition). Note: These records must be kept separate from personnel files.