There are many pitfalls associated with FMLA, but few employers have time to read statutes, regulations, opinion letters, or court decisions to ensure ongoing compliance.
Check out our eligibility and requirement checklists below to learn more about FMLA. Leave management can be made easier with the help of HRQUEEN.
FMLA Leave Eligibility Checklist for Employers
In addition to posting notices and educating employees about FMLA, employers need to be prepared for when staff members inevitably request leave.
To ensure you're meeting all your Family and Medical Leave Act obligations, please follow our checklist below or download our FREE infographic.
Determine whether the employee is eligible for FMLA. If they are, notify them as soon as possible that their scheduled leave qualifies.
Employees should be provided with a Notice of Eligibility and Rights & Responsibilities.
Assess whether a medical certification is required. Inform the employee immediately if one is required.
Make sure the request for leave qualifies under the FMLA.
Employees should be granted or denied leave and a Designation Notice given.
Ensure that health benefits are maintained during the leave.
After a return from leave, the employee must be reinstated to the same position or an equivalent position.
Make detailed notes and maintain accurate records.
FMLA Leave Eligibility Requirements for Employees
FMLA protections are not available to everyone. Taking FMLA-protected leave requires employees to meet certain criteria. Therefore, one of the first tasks an FMLA administrator has when learning that an employee needs leave is determining whether the employee in question meets three criteria.
An employee qualifies for FMLA leave if:
Worked at least 12 months for the company.
The 12 months do not have to be consecutive.
Months worked before a seven-year break in service should not be considered by employers, unless the break was due to military duty or a collective bargaining agreement.
An employee might be on non-FMLA leave when the 12-month threshold is met. The employee would be entitled to FMLA leave if any leave is taken after the threshold has been reached (assuming the employee meets the rest of the criteria).
Worked at least 1,250 hours in the 12 months prior to starting leave.
The 1,250 hours include only actual work hours; vacation, PTO, and other leaves are not included.
FMLA leave may be available to part-time employees who meet this criteria.
In the case of exempt employees who do not keep work records, the employer would have to prove that the employee has not worked the requisite hours. The FMLA and the Fair Labor Standards Act do not restrict employers from keeping such records of exempt employees.
Work at a site with at least 50 company employees within 75 miles.
75 miles is measured in surface miles, using public streets, roads, highways, and waterways, by the shortest route from the place where the employee working on leave is located.
Under the FMLA, employees' private residences do not qualify as worksites. A person's worksite is where they report to or where assignments are made.
An employee who meets all three requirements is eligible to take FMLA leave for a period of up to 12 weeks within a 12-month period.
Also, once the eligibility criteria are met, employees remain eligible for the duration of the 12-month leave year period. Eligibility may be recalculated at the time of the first absence for the condition after the conclusion of the 12-month leave year period.
What are the qualifying reasons for FMLA leave?
FMLA leave is only available to employees who meet at least one of the following criteria.
1. For the birth of and bonding with a child
Taking care of a newborn requires a lot of time and effort. It is possible for FMLA-eligible employees to take FMLA leave after the birth just to be with their new child. It applies to all parents, including fathers and anyone who will act as a parent to the child, regardless of their legal or biological relationship.
Leave must be taken within 12 months of the birth. In most cases, this reason is quite simple, but it does not apply when a mother is pregnant or incapacitated for other reasons - that is covered under the serious health condition provisions. This reason covers time spent solely on bonding, when no one has a serious health condition.
A qualifying employee is entitled to up to 12 weeks of FMLA leave for this reason. It is, however, not automatically permissible for them to take intermittent or reduced schedule leave for this reason; the employer would have to agree to it. A certification may not be requested by an employer if the employee is solely taking leave to bond with a healthy child. Generally, your employer/HR will require a note from your doctor stating that you cannot work.
2. Placement of a child through adoption or foster care, along with bonding with the child
It takes time and focus to adjust to changes in a family's dynamics. Adoption or foster care leave might be required before the actual adoption or placement, which can be taken intermittently as needed. Court appearances and other appointments required for the adoption or placement to proceed are included. The leave for placement applies to all parents, including fathers and those who will stand in as parents even if they have no biological or legal relationship to the child.
It is also required that this leave be completed within 12 months of the placement. The FMLA allows eligible employees up to 12 weeks of leave for the placement of a child. It is not automatically possible to take intermittent or reduced schedule leave for the part of the leave for bonding; the employer must agree to it. Employers may not request a certification for the part of the leave that is solely for bonding with a healthy child. It is possible, however, for them to request reasonable documentation of the family relationship before granting the bonding leave.
3. The employee suffers from a serious health condition
Sometimes, employees become ill or injured and may require FMLA leave for up to 12 weeks. To qualify as seriously ill, the employee must be unable to perform his or her job functions.
Serious health conditions include illnesses, injuries, impairments, or physical and mental conditions that require inpatient care or ongoing treatment. Generally, inpatient care involves an overnight stay in a medical facility. Continuing treatment, however, is more involved. An important point to remember is that treatment can include exams to diagnose serious health conditions and evaluations of those conditions.
Following are examples of serious health conditions requiring ongoing treatment:
Any period of incapacity (physical or mental inability to do something or to manage one's affairs) lasting longer than three consecutive, full calendar days, followed by any subsequent treatment that also involves
Two or more treatments must be provided by a health care provider within 30 days of beginning incapacitation, or
Treatment at least once, with continued treatment thereafter.
Pregnancy or prenatal care-related incapacity.
Incapacity (or treatment for) a chronic serious health condition that requires treatments at least twice a year. There may be a period of incapacity that occurs episodically rather than continuously.
Incapacity caused by a permanent or long-term illness for which treatment may not be effective.
It is a period where a patient is undergoing multiple treatment (such as chemotherapy, radiation, physical therapy, dialysis), or undergoes restorative surgery, or suffers from a condition that will likely result in more than three consecutive, full calendar days of incapacity without treatment.
An employer may request a certification supporting the need for leave due to a serious health condition.
4. To care for a family member with a serious health condition
FMLA allows employees to take up to 12 weeks off to care for a family member. A family member must have a serious health condition that makes them unable to perform regular daily tasks, such as attending school, and must basically meet the definition of a serious health condition.
The definition of family includes spouses as defined by state law, but also same-sex spouses and children (biological, adopted, foster children, stepchildren, legal wards, or children of a person standing in loco parentis). A person who is under 18 or is unable to care for themselves due to a disability is considered a family member; and a parent (a parent, adopted parent, stepparent, or foster parent who stood in for the employee as a child).
There must be a need to care for the family member, which can include providing psychological comfort and reassurance.
An employer may require an employee to submit a certificate supporting the need for family leave.
5. Because of the sudden military duty of a family member that has created a qualifying urgent need
It is not uncommon for employees to have family members serving in the military, and their military duty may put urgent demands on them and their families. When these demands arise, employees may take up to 12 weeks off. A deployment to a foreign country is required to accomplish this. In accordance with the FMLA, the following situations qualify for this "qualifying exigency" leave:
Short-notice deployment
Military events and related activities
Childcare and school activities
Financial and legal arrangements
Counseling
Rest and recuperation
Post-deployment activities
Parental care
Other agreed-upon reason between employer and employee
For purposes of childcare, this is only to arrange for alternative childcare when the military duty mandates a change in the current arrangement or to provide emergency child care — this is not to be used on a regular or ongoing basis. The employee will likely have a difficult time arguing that childcare is an emergency if he or she knows about the military duty months in advance.
6. Providing care for a family member whose serious injury or illness was caused or aggravated by military service
The FMLA allows employees to take up to 26 weeks of FMLA leave each year to care for a family member with a military-related condition. Regardless of which method is used for the other leave reasons, the 12 month period must be measured forward.
It must be a serious injury or illness. In the case of military members, this would be an injury incurred on duty or one that existed before duty that was aggravated by duty. Depending on the condition, the military family member may not be able to perform military duties.
Veterans are to be discharged under honorable conditions any time during the five-year period before the first date of FMLA leave.
In order to take FMLA leave for this reason, the employee must be the spouse, child, parent, or next of kin of the military family member. The term "next of kin" includes other blood relatives as well.
An employee may only take 26 workweeks of FMLA-qualifying leave within a 12-month period. It is possible for up to 12 of the 26 weeks to be for FMLA-qualifying reasons other than military caregiver leave.