U.S. Department of Labor Blog
This February marks the 33rd anniversary of the Family and Medical Leave Act (FMLA), a law that protects Americans from losing their jobs when they take leave from work to welcome a new child, for their own or a family member’s health reasons, or related to a family member’s military service. The Department of Labor is celebrating the anniversary this year with tips from the department’s Wage and Hour Division (WHD) to help employers and business leaders navigate this crucial labor law.
Here are six FMLA best practices:
- Determine if you are a covered employer.
The FMLA generally applies to public agencies, public and private elementary and secondary schools, and private sector employers with 50 or more employees.
- Recognize eligibility and qualifying reasons for leave.
WHD investigators frequently encounter FMLA violations stemming from an employer’s failure to inform employees of their rights or FMLA eligibility. If you are a covered employer, make sure you and your employees know who is eligible for FMLA leave – and when. Employees are eligible for FMLA leave if they:
- Work for a covered employer for at least 12 months,
- Have at least 1,250 hours of service during the 12 months before their FMLA leave starts, and
- Work at a location where the employer has at least 50 employees within 75 miles.
Eligible workers are entitled to up to 12 workweeks of leave in a 12-month period for:
- Birth of a child or placement of a child for adoption or foster care,
- Care of a spouse, child, or parent with a serious health condition,
- A serious health condition that makes the employee unable to work, or
- Any qualifying exigency arising from an employee’s spouse, child, or parent being a covered military member on “covered active duty.”
Eligible employees can take up to 26 workweeks of military caregiver leave during a single 12-month period to care for a covered servicemember with a serious injury or illness if the eligible employee is the servicemember’s spouse, child, parent, or next of kin.
- Understand the requirements.
Some of the more serious violations our investigators encounter include pressuring an employee to shorten their leave or denying qualifying leave requests. In the most egregious cases, employers may violate the law by disciplining or firing employees for requesting leave. Employers can avoid these pitfalls by reviewing Wage and Hour Division employer guidance on its website.
Remember:
- FMLA leave may be unpaid or used at the same time as employer-provided paid leave, though an employer may pay for FMLA leave time if it chooses.
- Generally, employees may use FMLA leave all at once, intermittently, or on a reduced leave schedule.
- Employers must continue to provide group health insurance coverage for an employee on FMLA leave under the same terms and conditions as if the employee had not taken leave.
- Employees who use FMLA leave are entitled to be reinstated to their same job or to an equivalent job at the end of their FMLA leave.
- Employers may not interfere with, restrain, deny, or retaliate against the exercise of any FMLA right.
- Know when you can require employees to provide certification for leave requests.
As an employer, you can ask your employee to certify that his or her leave request qualifies for FMLA coverage under certain circumstances. For example, you may require an employee to submit a certification from a health care provider to support the need for FMLA leave due to a family member’s or the employee’s own serious health condition. However, you may not request a certification for leave to bond with a newborn or a newly adopted or fostered child.
When you require certification:
- You must notify employees in writing each time.
- You must give the employee at least 15 calendar days to obtain the medical certification. If an employee never produces the certification, the leave is not FMLA-protected leave.
- You may require that requests for qualifying exigency and military caregiver leave be supported by a certification, but the notice and timing requirements are not the same. In some circumstances, an employee may not be held liable for administrative delays in the issuance of military documents.
- Notify employees of their rights.
Notice is very important for compliance and reducing misunderstandings, yet employers often violate the FMLA by failing to provide it. Covered employers must provide general notice explaining the FMLA’s provisions and how to file a complaint with WHD, along with general information in employee handbooks or other written materials.
When an employee first takes time off for a reason that may qualify for leave, the employer must notify the employee whether he or she is eligible for FMLA leave and, if eligible, of his or her rights and responsibilities. The employer also must notify the employee in writing whether the employee’s time off from work will be designated FMLA leave and the amount of time that will count against the employee’s FMLA leave entitlement.
- Communicate clearly.
Communication is critical at all stages of the FMLA process and is a key component of successfully administering the FMLA. Keeping open lines of communication is especially important when employees have questions or take time off unexpectedly.
Find more FMLA resources online, including a comprehensive guide for employers, forms, toolkits, the PAID self-audit program, and a new FMLA video series on YouTube. Our materials are designed to support employer compliance, while promoting employee well-being and retention.
Dana M. Deason is a senior policy advisor in the U.S. Department of Labor’s Wage and Hour Division.
