Are your FMLA policies up to date? What you need to know about recent changes in the law

By Steven Austin Stovall

FMLA Paper chain family protected in cupped handsWhen the Family and Medical Leave Act was signed into law in 1993, few realized how far-reaching it would become or how our definitions of “family” and “medical reason” might evolve. But now that the FMLA is approaching its 20th anniversary, it’s probably time to refresh your knowledge of this law, as well as highlight some recent changes.

The objective of the FMLA was—and is—to provide employees with a protected leave of absence for family or medical reasons. From the outset, FMLA gave a sense of security and consistency for employees. Previously, each employer could decide whether or not to grant a leave of absence and for how long. Once enacted, FMLA provided 12 weeks of unpaid leave for dealing with an employee’s illness or that of his family members. Of course, as with most federal legislation, it’s not that simple—there are nuances associated that should be explained.

FMLA basics

To qualify for leave under FMLA, certain requirements must be met on the part of the employer and the employee. For the employer, you must have at least 50 or more employees, including full-time, part-time and temporary workers. But it’s important to remember that the language of the act reads an employer that “employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year.” This can get tricky if your staff hovers right around the 50 mark.

For example, if you employ temporary workers, the number of temps you hire during any given 20-week period would be counted on a per-day basis. In other words, let’s say you have 40 employees throughout the year. If you staff up during the summer with a large number of temps and that puts your total number of workers for the month of July at 80, you still would not be required to offer FMLA leaves because you don’t have a 20-week period with a daily employee count of 50 or more.

For employees to be eligible, they must have worked for you for 12 months—but those 12 months don’t have to be consecutive. They could have worked for you for three months, left for two months and then returned for nine months. In this scenario, they would have worked for you for 12 months. But they also must have worked for 1,250 hours during that counted 12-month period. In addition, an employer may require that an employee use up any paid vacation that has accrued before going on FMLA-sanctioned leave.

Generally, an appropriate reason for FMLA leave is because of an employee’s own serious health condition or that of an immediate family member. Events such as the birth of a child, care for a child or assisting with the medical needs of a spouse or parent are all viable reasons for leave. For the employee, a “serious health condition” includes needing overnight medical attention, continuing treatment for three calendar days from work, pregnancy or when the employee is incapacitated because of a chronic condition, such as asthma or epilepsy.

Defining a family member

When originally written, the act considered parents, children and spouses as eligible family members. But interpretations of eligibility have progressed over the past two decades. For example, although caring for an ill parent is eligible under FMLA, caring for a parent-in-law is not. Also, the definition of “parent” has been clarified by the U.S. Department of Labor. In 2010, the DOL issued an interpretation of the act in which “parent” includes anyone who has day-to-day caregiving responsibilities of a child. This might include a grandparent who has begun caring for her granddaughter when her son was unable to do so. The new interpretation also may apply to one of an employee who is the same sex partner of another and shares in the raising of a child. Therefore, even if a biological or legal relationship doesn’t exist, the employee may still be a “parent” under these guidelines and FMLA would be applicable. In addition, time requested under FMLA can be not only for the care of the child, but also for the birth of the child and even time for bonding with that child.

Similarly, the definition of “child” can be less than straightforward. Though the act is clear about the care for a sick child—and most people intuitively would consider anyone younger than 18 as being a “child”—FMLA leave also can apply to adult children. The catch is that the adult child (no matter the age) must be incapable of “self care.” This means that daily care—because of mental or physical incapacity—is provided by someone other than the child. This might include an adult child who remains at home or in a hospital or residential care facility.

Updates to FMLA

In the 20 years since FMLA was enacted, numerous court cases and amendments have altered or augmented the act. These further clarified the law, but some may have slipped through the cracks as you’ve been applying the act in your business. In addition to the definitions of parent and child, it’s important to be aware of other new rules.

U.S. army uniform with American flagProbably the most significant recent change is the inclusion of military service as a viable reason for FMLA leave. In 2008, the National Defense Authorization Act amended FMLA. With the passage of NDAA, an employee who has met all other requirements mentioned earlier can take up to 26 weeks of leave if his parent, child or spouse is an Armed Forces service member who requires medical attention. This specific leave is called “military caregiver leave” and only can be used once for any given service member and his injuries.

For example, an employee can use unpaid time off to care for a spouse who was injured by a roadside bomb in Afghanistan. Once the 12-month period is up, however, the employee can no longer take time off for that specific injury for that spouse. A “qualifying exigency leave” is one in which an eligible employee may take unpaid time off for a parent, child or spouse who is deployed on short notice, engages in post-deployment activities, requires counseling, is going through physical therapy or recuperation and so forth. With a qualifying exigency leave, however, the time off is part of the normal 12-week FMLA timeframe.

A couple of recent court cases also have further defined FMLA rules. In one case, an employee complained that he was fired in retaliation for filing for FMLA leave for a back injury. As you may know, it’s illegal to terminate an employee in retaliation for filing a grievance or protection under a federal law. But in this case, several of the employee’s coworkers saw him at a local festival with no noticeable signs of pain or injury. The company let the employee go for committing fraud. A U.S. Court of Appeals upheld the company’s termination, citing the company’s thorough investigation.

In another case, an employee who called in to say that he was sick was terminated for excessive absences. The employee claimed that when he called in to say he was ill, he actually was protected under FMLA rules. The court upheld the termination because the employee failed to provide any documentation that the illness was covered under FMLA. Cases like these will continue to alter our interpretations of the law, but the lesson learned is to maintain solid records and provide consistency in your application of FMLA entitlements.

State-to-state variations

The state variations for FMLA are numerous. For example, the federal definition of “family” does not include parents-in-law, but Connecticut, Hawaii, New Jersey, Oregon, Rhode Island, Vermont and Wisconsin do include them. In Maine, siblings are counted as part of the immediate family. Also, how FMLA is used can vary from state to state. In Connecticut and Maine, for instance, an employee may request time off under FMLA for donating an organ. And the military leave component under FMLA is expanded in California, Illinois, Indiana, Maine, Minnesota, Nebraska and New York.

Other states are considering further changes to FMLA, so an annual check on your state’s specific rules regarding FMLA is well worth the effort. Often, this information can be found on your state’s labor department website (which may be called Department of Labor, Department of Commerce, Department of Industrial Compliance or something similar).

Record keeping

As mentioned, it’s prudent to maintain good records and keep abreast of changes that occur with any law—not just FMLA. Understand how the eligibility time is calculated and be clear with your employees about this. For example, do you use a fiscal year, calendar year or rolling 12-month calendar to determine the “year” in FMLA calculations? These are all permitted by FMLA. Next, specify how you’re going to count hours worked toward the 1,250 required before an employee can take FMLA leave. For exempt, salaried employees, this is usually a straightforward calculation, as they typically will work more than 1,250 hours.

But for hourly, or even more importantly, part-time employees, it may be more problematic. FMLA permits employers to average the hours worked per week for part-timers. The DOL also provides some simple rules of thumb for determining eligibility. Employees are considered to have met eligibility if any of the following apply:

  1. They have worked 24 hours in each of the 52 weeks of the year
  2. They have worked 104 hours in each of the 12 months of the year
  3. They have worked 40 hours per week for more than 31 weeks of the year.

Also, be familiar with the term “medical certification.” This is documentation provided by a health care provider that substantiates that the employee has a serious health condition requiring time away from work. Although employees must provide notice to you that they’re taking time off under FMLA with a 30-day advance notice, they have up to 15 calendar days to obtain the medical certification. Of course, the 30-day notice is when the anticipated leave is foreseeable. If it is sudden, then a verbal notice one or two days in advance is considered appropriate.