1. An Overview of Family and Medical Leave

• What the FMLA Requires
• Your Obligations as a Manager
• How Other Laws and Company Policies Come Into Play
• How to Use This Book

2. Is Your Company Covered by the FMLA?

• Calculating the Size of Your Company
• Joint Employers and the FMLA
• If Your Company Is Covered
• Common Mistakes Regarding Employer Coverage -- And How to Avoid Them

3. Is the Employee Covered by the FMLA?

• Employee Eligibility, Step by Step
• Keeping Track of Employees' Work Hours
• Common Mistakes Regarding Employee Coverage -- And How to Avoid Them

4. Leave for a Serious Health Condition

• Your Role in Identifying a Serious Health Condition
• What Is a Serious Health Condition?
• Leave for Employee's Own Serious Health Condition
• Leave for a Family Member's Serious Health Condition
• Common Mistakes Regarding Serious Health Conditions -- And How to Avoid Them

5. Leave for a New Child

• Leave for Birth
• Leave for Adoption
• Leave for Placement of a Foster Child
• Parental Certifications
• Timing of Parenting Leave
• Intermittent or Reduced-Schedule Leave
• Substitution of Paid Leave
• Parents Who Work for the Same Company
• Combining Parenting Leave With Leave for a Serious Health Condition
• Common Mistakes Regarding Leave for a New Child -- And How to Avoid Them

6. Military Family Leave

• Leave for a Qualifying Exigency
• Leave to Care for an Injured Servicemenber
• Common Mistakes Regarding Military Family Leave -- And How to Avoid Them

7. How Much Leave Can an Employee Take?

• Counting the 12-Month Leave Year
• How Many Weeks May an Employee Take?
• Counting Time Off as FMLA Leave
• Intermittent and Reduced-Schedule Leave
• Common Mistakes Regarding Leave Duration -- And How to Avoid Them

8. Giving Notice and Designating Leave

• Counting Time Off as FMLA Leave
• Individual Notice Requirements
• Employee Notice Requirements
• Common Mistakes Regarding Giving Notice and Designating Leave -- And How to Avoid Them

9. Certifications

• Types of Certifications
• Requesting Certification
• After You Receive the Certification
• Common Mistakes Regarding Medical Certifications -- And How to Avoid Them

10. Managing an Employee's Leave

• Scheduling Leave
• Covering an Employee's Duties During Leave
• Continuing Employee Benefits During Leave
• Managing Intermittent Leave
• Requesting Status Reports
• Disciplining or Firing an Employee During Leave
• Common Mistakes Regarding Managing Leave -- And How to Avoid Them

11. Reinstatement

• The Basic Reinstatement Right
• Fitness-for-Duty Certifications
• Restoring Pay and Benefits
• When Reinstatement Might Not Be Required
• When Employees Don't Return From Leave
• Common Mistakes Regarding Reinstatement -- And How to Avoid Them

12. How Other Laws Affect FMLA Leave

• Federal Laws
• State Laws
• Common Mistakes Regarding Other Laws and Benefits -- And How to Avoid Them

13. Record Keeping Requirements

• Why You Should Keep Records
• Keeping Track of Company Workforce FMLA Data
• Individual Employee Records
• Medical Records
• Review by the Department of Labor (DOL)
• Now You're Ready!
• Common Mistakes Regarding Record Keeping -- And How to Avoid Them

Glossary

Appendixes

A: State Laws and Departments of Labor

B: Company Policies Regarding FMLA Leave

• Family and Medical Leave Policy
• How Your FMLA Policy Affects Company Obligations

C: Using the Downloadable Forms on the Nolo Website

• Editing the RTFs
• List of Forms and Podcasts

Index

Chapter 1
An Overview of Family and Medical Leave

The Family and Medical Leave Act (FMLA) is a law with an undeniably noble purpose: to help employees balance the demands of work with personal and family needs. Since the FMLA was enacted in

1993, millions of employees have relied on it to protect their jobs while taking time off to recover from a serious illness, to care for an ailing family member, or to bond with a new child. The FMLA has been amended several times since its enactment. In 2008, for instance, the law was expanded to allow military family leave. And in 2020, Congress temporarily expanded the FMLA to allow parents to take paid leave to care for children whose school or care provider was closed or unavailable due to COVID-19; these provisions expired at the end of 2020.

Surveys consistently show that the FMLA has not had a negative impact on business growth or profitability. In a 2013 survey by the federal Department of Labor, for example, more than 90% of responding employers said that complying with the FMLA had either a positive effect or no noticeable effect on their companies. This same survey also revealed that suspected employee abuse of the FMLA was rare (2.5% of responding employers) and actual proven abuse even more so (only 1.6% of responding employers).

At the same time, surveys also reveal that employers find it difficult to comply with some parts of the FMLA. In 2020, the Department of Labor issued a Request for Information seeking input on certain regulations interpreting the FMLA. In response, the Society for Human Resource Management wrote that its members have reported challenges in tracking and managing intermittent leave, determining whether an employee has a serious health condition, and dealing with late or incomplete employee notice regarding the need for leave, among other things.

Experience has shown that it can be difficult to apply the FMLA when dealing with employees in the real world. For example, do you know what to do in the following situations?

• An employee who needs leave is also covered by workers’ compensation, a state family and medical leave law, and/or the Americans with Disabilities Act—and the requirements of those laws appear to conflict with the FMLA.An employee asks for time off but won’t tell you why or is reluctant to reveal personal medical information that might entitle the employee to leave.
• An employee wants to take FMLA leave at your company’s busiest time of year.
• An employee wants to take time off as needed for a chronic ailment, rather than all at once, and can’t comply with your company’s usual call-in procedures.
• An employee doesn’t give exactly the right amount or type of notice, hands in a medical certification form late, or can’t return to work as scheduled.
• An employee decides, after taking FMLA leave, not to come back to work.

These issues—and many more like them—come up every day, and managers have to figure out how to handle them legally and fairly, while protecting the interests of their companies. That’s where this book comes in: It explains, in plain English, how the FMLA works. While it can be tricky to figure out what to do in a particular situation, this book’s step-by-step approach will help you sort things out and meet your obligations.

This chapter will help you get started. It introduces the FMLA’s basic requirements, with special emphasis on your responsibilities as a manager. It explains how other laws and company policies can affect your obligations under the FMLA when an employee needs time off for family or medical reasons. And it provides a roadmap to the rest of the book, so you’ll be able to easily find the answers to all your FMLA questions.

What the FMLA Requires

The FMLA provides a separate entitlement for military caregiver leave. Employees may take up to 26 weeks of leave, in a single 12-month period, to care for a family member who incurs or aggravates a serious illness or injury in the line of duty while on active military duty. However, this provision doesn’t renew every year like the 12-week leave provisions described above. Instead, it is available only once per servicemember, per injury. Employees who are entitled to this military caregiver leave may also take other types of FMLA leave, but they can take no more than 26 weeks off, total, in a single 12-month period for all types of FMLA leave.

FMLA leave is unpaid, although an employee may choose—or the company may require employees—to use up accrued paid leave, such as sick leave or vacation, during this time off. The employer must continue the employee’s group health coverage during FMLA leave. When the employee’s leave is over, the employee must be reinstated to the same position or an equivalent position, with the same benefits as the employee had before taking time off. Although there are a few exceptions to this requirement, they apply only in very limited circumstances.

Tax Credits for Employers That Offer COVID-Related Leave

In March of 2020, Congress passed the Families First Coronavirus Response Act (FFCRA), which created two temporary paid leave programs: Emergency paid sick leave was available for up to two weeks for employees in quarantine or isolation; employees with COVID-19 symptoms; employees caring for ill, isolating, or quarantining family members; and employees caring for children whose school, care facility, or other daycare provider was closed or unavailable due to COVID- related concerns. This leave was paid up to a cap of $511 per day for the employee’s own health concerns, and $200 per day for employees caring for children or other family members. Public health emergency leave was available for up to 12 weeks to employees who couldn’t work (or work from home) because they were caring for children whose school, care facility, or other daycare provider was closed or unavailable due to COVID-19. This provision was an amendment to the FMLA, although different eligibility requirements applied. The leave was unpaid for the first two weeks, then paid up to a cap of $200 per day. Under the law, employers could obtain reimbursement of the costs of providing leave through refundable tax credits. While the FFCRA expired at the end of 2020, employers who continue to voluntarily provide paid leave for COVID-related reasons (including vaccination) are eligible for tax credits through September 30, 2021. This deadline might be extended further— check the Department of Labor’s website to learn the latest.

Special rules apply to public employers and schools. The FMLA imposes slightly different obligations on government employers and schools, which we don’t cover in this book. Similarly, in unionized workplaces, a collective bargaining agreement—the contract between the company and the union—might impose different family and medical leave obligations. Because every collective bargaining agreement is different, we can’t cover them all here.

Your Obligations as a Manager

The moment an employee comes to your office and says, “My wife is having a baby,” “My mother has to have surgery,” “My son was injured in Afghanistan,” or “I’ve been diagnosed with cancer,” you’ll have to figure out whether the FMLA applies, provide notices and meet other paperwork requirements, manage the employee’s time off, and reinstate the employee according to strict rules and guidelines.

Ten Steps to FMLA Compliance

Step 1: Is your company covered by the FMLA? The answer is yes if you’ve had at least 50 employees for at least 20 weeks in the current or previous year. If your company is covered, it has to post a notice and may have to provide written notice to employees, even before an employee requests leave. Company coverage is explained in Chapter 2.

Step 7: Did you successfully manage the employee’s leave? You must continue the employee’s health benefits, manage and track intermittent leave, arrange for substitution of paid leave, and more. In addition, you have to make sure the work gets done while the employee is out, whether by distributing the employee’s responsibilities to coworkers, hiring a temporary replacement, or outsourcing the job. Chapter 10 covers all of these issues.

Step 8: Did you follow the rules for reinstating an employee returning from leave? You must return the employee to the same or an equivalent position and restore the employee’s seniority and benefits, unless an exception applies. Chapter 11 explains these rules, as well as what to do if the employee doesn’t return from leave.

Step 9: Have you met your obligations under any other laws that apply? Whether or not the FMLA applies, the employee may be protected by the Americans with Disabilities Act, workers’ compensation statutes, state family and medical leave laws, and other laws. To find out about your obligations under these other laws, see Chapter 12.

Step 10: Have you met your record-keeping requirements? If your company is covered by the FMLA, you must keep certain payroll, benefits, leave, and other records, and you’ll certainly want to keep proper documentation of your decisions and conversations, in case you need to rely on them later. These issues are covered in Chapter 13.

The Compassionate Manager

One of the challenges of implementing the FMLA is that you must meet your legal obligations within a context that can be emotional. After all, employees who qualify for FMLA leave are undergoing major life changes. On the positive side, the employee may be welcoming a new child, with all the joy and excitement that brings. On the more sobering side, perhaps the employee is losing a parent or spouse to a terminal illness, caring for a seriously ill or injured child, or suffering through a painful disease. Although you have to follow the law’s requirements and make sure your company’s needs are met, no one wants to be the hardhearted administrator who responds to an emotionally distraught employee by handing over a stack of forms to be completed in triplicate.

The FMLA recognizes that employees who need time off for pressing family or health concerns might not always be able to dot every “i” and cross every “t.” The law provides guidance on what to do if, for example, an employee is too ill or injured to communicate with you, can’t return to work on time because of continuing health problems, or doesn’t complete forms properly. These rules will help you balance your legal obligations with the natural human desire to be compassionate during a difficult time.

And, as we’ll remind you from time to time, you have little to gain from imposing strict deadlines and paperwork requirements on employees who are truly in dire straits. Judges and juries are people, too, and they can find ways to enforce the spirit of the law in favor of an employee who needed its protection, even if the employee failed to meet deadlines, give adequate notice, hand in forms on time, or provide required information.

Of course, people have different comfort levels when dealing with emotional subjects. Some can easily offer support and a shoulder to cry on; others would rather volunteer for a root canal. If you fall on the more stoic end of this spectrum, take heart: You don’t need to become a therapist—or the employee’s best friend—to show some understanding in a difficult situation. Just remember that a little kindness goes a long way. Acknowledge what your employees are dealing with, cut them some slack if necessary, and work with them to make the law serve its purpose.

Why You Need to Get It Right

That’s the carrot; here’s the stick: Violating the FMLA can lead to serious trouble. And we don’t just mean the morale problems and associated woes that can crop up if employees feel that their needs aren’t important to the company. Mishandling family and medical leave issues can also give rise to lawsuits, not just against your company, but against you, individually, as the manager who made the flawed decision. Of course, this is the ultimate worst-case scenario, and chances are good that you’ll never have to face it. If you’re one of the unlucky few, however, your personal assets—such as your home, your car, and your bank accounts—could be on the line, not to mention your career and reputation.

FMLA lawsuits are on the rise. More employees are filing lawsuits alleging violations of the FMLA than ever before. For the year ending on March 31, 2020, there were more than 1,300 FMLA cases filed in the federal courts alone. The upshot for employers is clear: Compliance with the FMLA—and proof of compliance, in the form of records and policies—is more important than ever.

How Other Laws and Company Policies Come Into Play

 

This possibility of overlap means two very important things to managers: 

• Whenever an employee requests time off pursuant to any law or company policy, you must ask yourself whether the FMLA applies.
• The employee isn’t required to explicitly ask for “FMLA leave”; it’s your responsibility to determine whether the employee’s time off is FMLA-qualified. An employee on workers’ comp leave, temporary disability leave, parental leave, or even vacation might be protected by the FMLA, if the employee meets all of the criteria. And you will certainly want to count that time off as FMLA leave, not only to make sure the employee’s rights are protected, but also to put some limit on the total amount of time an employee can take off in a year.
• When the FMLA and another law or policy both apply, you may have to provide more than the FMLA requires. If other laws or your company’s policies give employees additional rights, you must honor them as well. The employee is entitled to every protection available, whether it is provided by the FMLA, another law, or your company’s policies.

Overlapping Laws

The basic rule about what to do when the FMLA and another law overlap is easy to state: You must follow every applicable provision of every applicable law. In other words, you may not focus solely on the FMLA and ignore your company’s obligations under other state or federal laws. If both laws apply to the same situation, you must give the employee the benefit of whichever law is more generous or provides greater rights.

Here are some of the other laws that might also apply to an employee who takes FMLA leave (Chapter 12 explains each in detail, and you can find information on each state’s leave laws in Appendix A):

• Antidiscrimination laws, which prohibit discrimination based on certain protected characteristics. The Americans with Disabilities Act (ADA) and similar state laws might come into play if an employee’s serious health condition is also a protected disability. Laws that prohibit gender and pregnancy discrimination might also overlap with the FMLA.
• Workers’ compensation statutes, which require most employers to carry insurance that pays for medical treatment and partial wage replacement for employees who suffer work-related injuries or illnesses. An employee who needs workers’ compensation leave almost always has a serious health condition under the FMLA, as explained in Chapter 12.
• State leave laws, which require employers to give time off for specified reasons. Certain states may give employees the right to take pregnancy disability leave, parental leave, leave for a family member’s military service, or other types of family and medical leave. If the employee takes leave for a reason that’s covered by both state law and the FMLA, you can count that time off against the employee’s allotment of FMLA hours. However, if state law provides leave that isn’t covered by the FMLA, you can’t count those types of leave against the employee’s FMLA entitlement. This means that the employee might be legally entitled to take more time off than the FMLA allows. (See Appendix A for detailed information on state family and medical leave laws.)
• State insurance programs, which provide some wage replacement, usually funded by payroll deductions, for employees who are unable to work due to a temporary disability (including pregnancy and childbirth). A few states, including California, have paid family leave insurance programs, which provide similar benefits to employees who take time off to bond with a child or care for a family member. An employee on FMLA leave might be entitled to some compensation from this type of program.

Company Policies

Company policies interact with the FMLA in a slightly different way. For the most part, your company may give employees more rights than the FMLA provides, but it may not take FMLA rights away. For example, if your company has a family and medical leave policy that allows employees to take up to 16 weeks of parental leave, you cannot disregard that policy and give employees only the 12 weeks required by the FMLA. If your company’s policies are less generous, however, the company must follow the FMLA: It must, for example, give employees a full 12 weeks of parental leave, even if the company’s policies provide for only six.

The FMLA regulations make clear that employers may require employees to follow their usual company procedures when taking leave, as long as those rules don’t violate the FMLA. For example, your company may enforce its usual notice rules—such as requiring two weeks’ notice to use paid vacation time—for employees who want to use paid leave during their FMLA leave. And, your company may generally require employees using FMLA leave to follow other leave requirements, such as calling a particular person to report an absence, as long as those rules don’t require more notice than the FMLA. These rules are explained in Chapter 8.

In addition to these general rules, the FMLA also makes explicit reference to particular types of employer policies. For example, the FMLA says that you can fire an employee for substance abuse, even if the employee takes FMLA leave to go to rehab, but only if your company has a policy allowing it to do so. Because this is a potentially confusing area, we’ve devoted Appendix B to company policies that can affect your FMLA obligations. This appendix identifies the most common areas in which company policy might come into play and provides some sample policy language that will help you maximize your company’s rights. In addition, you’ll find policy alert icons throughout the book. These icons let you know that your company’s policy could determine your rights and obligations regarding that topic.

How to Use This Book

This book explains every aspect of the FMLA, from figuring out whether your company is covered by the law to reinstating an employee returning from FMLA leave. We cover these topics in the order in which they will generally come up as you administer an employee’s leave. In addition, we provide helpful appendixes that explain how your state’s laws and your company’s policies could affect your company’s FMLA rights and obligations.

Employee may sue for FMLA benefits promised in employee handbook, even though employee wasn’t eligible for leave. Steven Peters marketed pharmaceutical products to health care providers for Gilead Sciences, Incorporated. Peters was off work for shoulder surgery from December 5 to December 16, 2002; Gilead sent him a letter identifying his time off as FMLA leave. The letter tracked language in the company’s employee handbook, including that employees were entitled to 12 weeks of leave, followed by reinstatement. The letter also described the eligibility requirements for FMLA leave, but didn’t include the requirement that the company employ 50 employees within 75 miles. In fact, this requirement wasn’t met. On March 4, 2003, Peters began a second period of leave after he began using neurontin, a drug that can cause serious side effects. Gilead again sent him a letter identifying his time off as FMLA leave but Peters never got this letter. On April 16, Gilead received a letter from Peters’s doctor, releasing him to return to work on May 5. On April 21, Gilead offered Peters’s position to someone else, who accepted it and began work a week later. On April 25, Gilead sent Peters a letter indicating that it could not reinstate him because he held a “key” position (apparently an effort to use the “key employee” exception, covered in Chapter 11). Peters sued, and Gilead claimed that he wasn’t entitled to FMLA leave because he didn’t meet the eligibility requirements. The Court of Appeals eventually found that, although Peters may not have had an actual FMLA claim, he could still sue Gilead for promissory estoppel. Because Gilead’s handbook and letter promised that Peters was entitled to reinstatement after 12 weeks of leave, Gilead might be responsible for the damages Peters suffered because of his reliance on the promise in taking leave. Peters v. Gilead Sciences, Inc., 533 F.3d 594 (7th Cir. 2008).

 We strongly advise you to read the whole book, even if you are already familiar with some aspects of the FMLA. Because the FMLA imposes fairly tight deadlines on employers—and because the way you handle initial issues can affect your company’s rights down the road—you’ll find it very helpful to understand the whole picture before you have to handle a leave request. Also, there have been significant changes in the law and regulations in recent years, so you may need to learn some different requirements. Once you’ve reviewed every chapter, you can use the book as a reference, to quickly look up the information you need.

Each chapter includes features that will help you meet your obligations, including:

• Chapter Highlights, which summarize the basic rules covered in the chapter
• Lessons From the Real World, which show how courts have handled particular disputes between real employees and real employers
• Examples, which will help you understand how to apply the material to real-life situations
• Sample Forms, which allow you to request information from, and provide information to, employees about FMLA leave (you’ll find blank copies of all forms on this book’s companion page at Nolo’s website; see Appendix C for details)
• Managers’ Checklists and Flowcharts, which you can use to make sure you’ve considered every important factor when making decisions about key FMLA issues, and
• Common Mistakes—And How to Avoid Them, which will help you steer clear of legal trouble in applying the FMLA.

This Book Comes With a Website

Nolo’s award-winning website has a page dedicated just to this book, where you can:

DOWNLOAD FORMS - All forms in this book are accessible online. After purchase, you can find a link to the URL in Appendix C.

KEEP UP TO DATE - When there are important changes to the information in this book, we will post updates

And that’s not all. Nolo.com contains thousands of articles on everyday legal and business issues, plus a plain-English law dictionary, all written by Nolo experts and available for free. You’ll also find more useful books, software, online services, and downloadable forms.