FMLA: Paying Employees on Family Leave

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What is FMLA, and how does it work?

Employee Rights Under FMLA: Family and Medical Leave

What is FMLA? In 1993, President Clinton signed the Family & Medical Leave Act (FMLA), which allows eligible employees to take up to 12 weeks of unpaid leave for childbirth, adoption, foster care, to care for a child, parent, or spouse with a serious medical condition, or if the employee themselves has serious medical condition.

Who is covered by FMLA?

The U.S. Department of Labor’s Employment Standards Administration’s Wage and Hour Division enforces FMLA. FMLA applies to all public agencies, including state and local governments, and local education agencies such as schools. In the private sector, FMLA also applies to employers with 50 employees within 75 miles of the worksite, who have employed 20 or more workweeks in the current or preceding calendar year. Most federal and congressional employees are under the jurisdiction of the U.S. Office of Personnel Management (OPM) or Congress.

There are guidelines to who is eligible for FMLA benefits. An eligible employee is one who works for a “covered” employer and has worked for 12 months or more. This includes anyone working at least 1,250 hours during the preceding 12 months. FMLA employees also must work in the United States or in any territory of the United States.

How Does FMLA Work?

When leave is foreseeable, an employee must provide the employer with at least 30 days notice or as much notice as is practicable. Foreseeable events would include scheduled surgery, adoption, or the birth of a child. An employer may require medical certification of a serious health condition from the employee’s health care provider, periodic reports of the employee’s status, and intent to return to work. In addition, the employer can ask for the employee to provide a fitness-for-duty certification prior to returning to work.

Employees may take FMLA in the form of a reduced work schedule or intermittently. Intermittent leave is not an entitlement under FMLA. Supervisors and department heads may choose to grant such a request to assist an employee in coping with their reason for the leave.

A number of states have separate family leave statutes whose regulations may differ from the standard FMLA. Employers must comply with the more beneficial provision.

Health Benefits Maintenence

The FMLA provisions start when the employee first goes on leave. It requires your employer to keep your job open while you are gone, although it does not require your employer to pay you during this time. Under most circumstances, an employee may elect or the employer may require the use of any accrued paid leave (vacation, sick, personal, etc.) for periods of unpaid FMLA leave.

If the employee has health insurance coverage through the employer’s group health plan, the employer is required to maintain coverage for the duration of the FMLA leave. If applicable, arrangements will need to be made for employees to pay their share of health insurance premiums while on leave. The employer cannot require pre-payment. The regulations state that if an employee does not meet the agreed upon date for payment of the premium, he or she has a 30-day grace period during which provision of health coverage will not be affected. If coverage lapses for nonpayment of premium coverage or if the employee elects not to retain his or her group health care benefits while on leave, the health care benefits must be restored with the same plan upon return with no restrictions.

Job Protection

The law requires that when the employee returns from FMLA leave, the employee is entitled to be restored to the same or an equivalent job. An equivalent job is one with equivalent pay, benefits, responsibilities, etc. Taking leave will not result in the loss of employment benefits accrued prior to the date that the leave begins. The law does not entitle you to continue to accrue seniority or other benefits while on unpaid FMLA leave. However, employees must return to employment with the same benefits, at the same levels, as existed when the leave commenced.

Employers must post a notice in a visible and common area of the organization that outlines FMLA’s basic provisions. If an FMLA notice is not posted companies are subject to a civil money penalty. Employers are also prohibited from discriminating against or interfering with employees who take FMLA leave.

Examples illustrating FMLA

Cherie will go on maternity leave soon. She has 10 days of vacation and sick pay remaining. She has short-term disability insurance that covers 66.7 percent of her salary starting the third week and continuing through the 12th week of her leave. Because of the FMLA, Cherie is entitled to 12 weeks of unpaid leave. In this circumstance, however, Cherie’s company policy dictates that she is paid her entire salary for 10 days (her remaining sick leave), and two-thirds of her salary through the 12th week.

Deborah is also about to go on maternity leave. She has one week of sick time remaining. Her company offers six weeks of short-term disability at 66.7 percent (two-thirds) of her salary. She, too, is entitled to 12 weeks of unpaid leave through the FMLA. During the first seven weeks she would be covered by her company plan; the remaining five weeks – bringing the total time to 12 weeks – she would be covered by the FMLA. So, in Deborah’s case, the first week would be sick time (full pay); the next six weeks would be disability (two-thirds pay), and the final five weeks would be FMLA leave (no pay).

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