Our recent webinar included the topic of what happens when a business reaches various employee levels. Fifty employees is one of those major thresholds where two major regulations kick in: the Affordable Care Act (ACA) and Applicable Large Employers (ALE), both at 50 full-time equivalent employees and the Family and Medical Leave Act (FMLA), at 50 or more employees for at least 20 weeks per year. This article will delve into the minefield of what FMLA compliance means and how it helps employees balance their work lives with serious family and medical situations. For an employer, FMLA compliance means granting eligible employees job-protected, unpaid leave for specified family and medical reasons while maintaining their health benefits.
Who is Covered
First, let’s cover who is eligible to take leave. Just because a company is covered doesn’t mean every employee qualifies. To take FMLA leave, an employee must meet all three of these criteria:
- Have worked for at least 12 months (does not need to be consecutive)
- Have worked at least 1,250 hours during the 12 months immediately preceding the start of the leave
- Have worked at a location where the employer has 50 or more employees within a 75-mile radius
A covered employer with an eligible employee means two things: Time Off and Job/Benefits Protection.
Time Off
- 12 workweeks of unpaid leave in a 12-month period for standard medical and family reasons (e.g., birth/adoption of a child, caring for an immediate family member with a serious health condition, the employee’s own serious health condition)
- 26 workweeks of unpaid leave in a single 12-month period to care for a covered service member with a serious injury or illness (Military Caregiver Leave)
Note: Leave doesn’t always have to be taken all at once. It can be taken intermittently, in separate blocks of time or on a reduced leave schedule, if medically necessary.
Job and Benefits Protection
- Job Restoration: When the employee returns from FMLA leave, they must be restored to their original job or to an equivalent job with equivalent pay, benefits and other employment terms.
- Health Insurance: You must maintain the employee’s group health insurance coverage under the same conditions as if they had continued to work. This means the employee is still required to pay their share of the premium.
Myth-Busting
- Myth: FMLA is paid leave. Fact: FLMA is federally unpaid, though employees can often substitute accrued paid time off.
- Myth: An employee on FMLA can never be terminated. Fact: FMLA offers “job protection,” not “job immunity.” If your business is going through a company-wide layoff or if an employee was already being investigated for misconduct before they requested leave, they can still be terminated.
- Myth: An employee must explicitly say “FMLA” to trigger the process. Fact: Employees don’t need to be legal experts. If a worker tells you, “I need two weeks off because my chronic back condition flared up and I can’t sit,” or “I need time off to care for my mom who was just hospitalized,” that is enough to trigger the employer’s obligation.
- Myth: Employers can demand a copy of the employee’s medical records. Fact: Employers have the right to request a complete and sufficient medical certification form, signed by a doctor, to prove a serious health condition exists. However, they cannot demand the employee’s actual medical records or a specific diagnosis, due to privacy laws.
Key Employer Responsibilities
To stay compliant and avoid costly lawsuits, employers must manage the administrative side correctly:
- Post Notices: You must display a general FMLA poster explaining rights and responsibilities where employees can see it, and include FMLA info in your employee handbook.
- Designate the Leave: Once you have enough information to determine the leave qualifies as FMLA, you must provide the employee with US DOL Form 380, within 5 business days, detailing their specific expectations and obligations with the inclusion of what happens if they fail to meet them.
- If you require proof of the medical condition, which most employers should do, you must also provide the employee the appropriate medical certification form. The employee has 15 calendar days to return it to you.
- Form WH-380-E: Use if the leave is for the employee’s own serious health condition.
- Form WH-380-F: Use if the employee is taking leave to care for a family member.
- If you require proof of the medical condition, which most employers should do, you must also provide the employee the appropriate medical certification form. The employee has 15 calendar days to return it to you.
- Final Approval: Once the employee returns their completed medical certification and you have enough information to officially determine that the leave qualifies under FMLA, you have another five business days to provide them with Form WH-382.This is the official approval form. It tells the employee that their leave is approved and outlines exactly how much of the time off will be counted against their 12-week FMLA entitlement. It also explicitly details if they are required to provide a “Fitness-for-Duty” (doctor’s release) certification before they can return to work.
- Keep Accurate Records: Maintain detailed records of FMLA usage, premium payments and documentation for at least 3 years. Keep all medical records strictly confidential and separate from regular personnel files.
At first glance, FMLA compliance can look like a mountain of rigid deadlines and complicated Department of Labor paperwork, but when you strip away the legal jargon, successful FMLA management boils down to two things: proactive communication and meticulous recordkeeping. By understanding who qualifies, training your managers to spot leave requests early and utilizing standard DOL forms to create a bulletproof paper trail, you protect your business from costly litigation and expensive compliance penalties. More importantly, executing FMLA correctly allows you to support your team when they need it most, proving that a compliant workplace is ultimately a more resilient, loyal and productive one.
While we make every attempt to ensure the accuracy and reliability of the information provided in this article, the information is provided “as-is” without warranty of any kind. Romeo Chicco or PayMaster, Inc. does not accept any responsibility or liability for the accuracy, content, completeness, legality or reliability of the information contained. Consult with your CPA, Labor Attorney and/or HR Professional, as laws may vary or change and your situation may vary.
