The Family and Medical Leave Act (FMLA) is often viewed as a convoluted maze of arcane rules. Generally, FMLA requires covered employers provide qualifying employees up to 12 weeks of unpaid leave for certain qualifying events. This simple explanation belies how technical FMLA can be. FMLA is one of the laws that employers most frequently ask questions about. Taking one wrong turn can easily lead to employer liability. Below we will review the steps an employer should follow when dealing with the FMLA labyrinth.
Step 1: An employer determines whether it is a covered employer.
Step 2: If it is covered, an employer should then prepare and share an FMLA leave policy with its employees and must post certain notices to its employees.
Step 3: If an employee requests FMLA leave, or the employer learns that an employee’s absence may be for a qualifying reason, then a covered employer must determine whether the employee is eligible for FMLA leave. If the employee is not eligible, the employer must notify the employee of the decision and utilize the appropriate designation form. If the employee is eligible, the employer must proceed to the next step.
Step 4: Provide the employee eligibility and rights and responsibilities notices to the employee.
Step 5: The employer must then determine if the leave request is for an FMLA-qualifying reason.
Step 6: The employer should determine whether the employee qualifies as a “key employee” for whom specialized rules apply.
Step 7: The employer may require the employee go through a certification process, which is optional. If the certification process is utilized, then the employer should notify the employee about the certification and provide time for certification.
Step 8: The employer must either grant or deny the leave request and provide a designation notice to the employee.
Step 9: After leave is granted, then the employer must i) restore the employee to the same or an equivalent position at the end of the leave (unless the employee is a “key” employee) and ii) maintain benefits during the leave (with exemptions).
Step 10: Maintain records for the entire decision-making process.
The first step in navigating the FMLA maze represents a core concept of FMLA. Below is a series of questions and answers designed to assist in understanding the concept of the “covered employer.”
What is a covered employer?
It’s an employer that has legal obligations under FMLA.
Who are covered employers?
There are a couple types of covered employers subject to the provisions of FMLA. One of the main covered employers is private employers with 50 or more employees during 20 or more workweeks in the current or previous calendar year. Public agencies, regardless of the number of employees (public agencies include state, local and federal employers, and local educational agencies), are also covered employers. In addition, public and private elementary and secondary schools are covered employers, regardless of the number of persons employed. Covered employers also include any person who acts in the interest of the employer toward any of the employees of such employer, and any successor in interest of the employer.
How does a private-employer count employees to determine coverage?
With few exemptions, any employee whose name appears on the employer’s payroll will be considered employed each working day of the calendar week and must be counted regardless of whether compensation is received for the week. However, employees added to the payroll after the beginning of a calendar week or terminated before the end of a calendar week are not counted. There are special issues that arise when an employer does not by itself have the requisite number of employees but is considered a joint employer with a second company. For example, when two or more businesses exert control over the workplace or working conditions, it is possible that the employees of both businesses are counted together.
What about employees on paid or unpaid leave?
They are counted so long as the employer reasonably expects the employee to return later to active employment.
Does the same rule apply for employees on disciplinary suspensions?
Yes, again, so long as the employer reasonably expects the employee to return later to active employment, the employee is counted.
What about employees who are laid off?
Employees on temporary or permanent layoff are not counted.
For more on FMLA, visit The Williams Parker Labor & Employment Blog (williamsparker.com/LEblog).
Jennifer Fowler-Hermes and John C. Getty are labor and employment attorneys with Williams Parker in Sarasota. They represent private, public, for-profit, and not-for-profit employers in a wide range of labor and employment matters. Additionally, Jennifer is board certified in labor and employment law and is also a Florida Supreme Court certified circuit civil mediator.