Family Medical Leave Act (FMLA)

The Family and Medical Leave Act (FMLA) is a federal law that entitles eligible employees of covered employers to take unpaid, job-protected leave for certain family and medical reasons.

Eligible Employers
The FMLA applies only to covered employers. These include:

Private-sector employers who employ 50 or more people during any 20-week period in the current or preceding calendar year within a 75-mile radius,
Public or private elementary or secondary schools, regardless of the number of employees they employ, or
Public agencies, including local, state, or federal government agencies, regardless of how many people they employ.

Eligible Employees
Employees covered by FMLA protections include:

Those who work for a covered employer (mentioned above);
Work for the employer for at least 12 months;
Have at least 1,250 hours of service for the employer during the 12-month period immediately preceding the leave; and
Work at a location where the employer has at least 50 employees within 75 miles.

The following sections may be modified in the sample policy:

The date from which leave is calculated. The FMLA provides multiple methods for calculating leave. Your organization can choose the method that works best for you.
The use of paid leave. Although FMLA is unpaid leave, employers may require the use of paid leave, such as vacation time, sick time, or short-term disability, to run concurrently with the FMLA leave.
The interaction of disability leave and FMLA leave. If your organization offers some form of short-term disability leave, include a section that explains how the two benefits work together.

Calculating Employees
The FMLA broadly interprets the calculation of 50 employees. For example, all part-time and full-time employees must be included. Also, if you have an affiliated organization, such as a church, day care, or school, you may have to combine the employees when determining the total number. If you question whether your organization meets the minimum employee requirement, consult local legal counsel.

Military Provisions
The FMLA also provides military caregiver leave. This helps families care for covered service members who are coping with serious injury or illness. It provides up to 26 workweeks of job-protected leave in a single 12-month period to certain eligible family members. Additionally, the FMLA provides qualifying exigency leave for military members in the Regular Armed Forces, the National Guard, and the Reserves. This helps eligible family members manage their affairs when a qualified military member is going to be or has been deployed to a foreign country. It provides up to 12 workweeks of job-protected leave in the applicable 12-month leave period.

Treating Absences
If your organization qualifies for the FMLA, you should carefully consider how you handle employee absences due to illness. Employees may not be penalized in any way for taking unpaid leave under the act if they are eligible for this benefit. For example, if an employee returns from an FMLA leave, the manager should not reference the time off in a performance appraisal—especially in a negative fashion. If the employee is excessively absent or tardy, any references in a performance appraisal or disciplinary document should specifically reference all “non-FMLA” absences.

NOTE: This act requires employers with 50 or more workers to provide up to 12 weeks of unpaid leave for the birth or adoption of a child or for a serious health condition experienced by the employee or the employee’s children, spouse, or parents.

State vs. Federal Protections

It’s important to note that many states impose greater leave benefits on employers than the federal government does. These benefits may apply to organizations with fewer than 50 employees. Consult a licensed local attorney for advice on any applicable leave laws in your state.

Italicized text in the policy is variable language. For simplicity, we’ve used the terms business administrator and your organization to refer to the operations covered by the handbook. You may choose to change the wording to suit your specific organization or to refer to the appropriate department or contact person.

When language is italicized in the sample policy, it’s either variable or only necessary under certain conditions. For example, additional language may be necessary for certain policies only if employees sign employment contracts.

SAMPLE POLICY:
FAMILY AND MEDICAL LEAVE ACT

It is the policy of (name of organization) to provide family and medical leaves in accordance with the Family and Medical Leave Act of 1993 (FMLA).

Eligibility

The FMLA entitles eligible employees to take up to 12 weeks of unpaid, job-protected leave in a 12-month period for reasons specified in the FMLA. Under certain circumstances, families caring for service members recovering from a serious injury or illness may take up to 26 weeks of unpaid, job-protected leave. You are eligible for FMLA leave if you have, before the first day of your FMLA leave, 1) worked for at least 12 months, and 2) provided 1,250 hours of service within the previous 12-month period. We calculate the 12-month period backward from the date the employee’s FMLA leave begins. If you and your spouse are both employed by (name of organization), your combined FMLA leave entitlement is 12 weeks for the birth, adoption, or placement of a child.

Reasons for FMLA Leave

FMLA leave will be granted to eligible employees for any of the following reasons:

The birth, adoption, or placement of a child. (12 weeks)
The care of a spouse, child, or parent who has a serious health condition. (12 weeks)
The employee’s own serious health condition. (12 weeks)
A qualifying exigency arising out of a covered family member’s active duty or call to active duty in the Armed Forces in support of a contingency plan. (12 weeks)
The care of a covered family member who has become seriously ill or seriously injured in the line of duty in the Armed Forces. (26 weeks)

A serious health condition means an illness, injury, impairment, or physical or mental condition that involves:

Any period of incapacity or treatment in connection with, or after, inpatient care in a medical facility;
Any period of incapacity requiring absence from work, school, or other regular daily activities of more than three calendar days and involving continuing treatment by a health care provider;
Any period of incapacity due to pregnancy or for prenatal care; or
Continuing treatment by a health care provider for a chronic or long-term condition that would likely result in a period of incapacity of more than three calendar days. Unless complications arise or if left untreated, the following will generally not be considered serious health conditions: the common cold, the flu, upset stomachs, headaches, or orthodontic problems. Routine physical, eye, or dental examinations are not considered treatments indicative of a serious health condition.

Guidelines of FMLA Leave

Leave may be taken, if medically necessary, on an intermittent or reduced schedule basis for the serious health condition of the employee or an immediate family member. Intermittent or reduced leave may be taken for the birth or adoption of a child only if approved by (the business administrator).

(Name of organization) requires the employee to first use his or her paid sick leave, floating holidays, or vacation time for any part of the 12-week (26-week) period. All available paid sick leave, floating holidays, and vacation time must be used and will be designated as FMLA leave time before any remaining FMLA leave can be taken on an unpaid basis.

Notice and Medical Certification

If you become eligible for leave under the FMLA, you must follow these guidelines:

You must provide 30 days’ advance notice when the leave is foreseeable. When the need for leave is not foreseeable, you must provide notice to (the business administrator) within two business days of when you become aware of the need for leave. Notice may be provided by your spouse, family member, or other representative if you are unable to do so personally. Failure to provide notice could jeopardize your FMLA status.
FMLA requires that you attempt to schedule planned medical treatment or intermittent leave to avoid undue work-related disruption. This means that in cases where your treating physician is available, you may be required to schedule planned medical treatment outside of general business hours.
If you take leave to care for a spouse, child, or parent, you must provide a medical certification within 15 calendar days of the request for leave. Contact (the business administrator) to obtain a copy of the “Certification of Health Care Provider” form. A second and/or third medical certification at (name of organization’s) expense, may be required.
If you take leave for your own serious health condition, you are required to provide a fitness-for-duty report, along with the “Certification of Health Care Provider” form, before returning to work.
While on FMLA, you are required to report to (the business administrator) periodically on your status and your plans to return to work. (This organization) will take steps to maintain all medical information confidentially in accordance with the Americans with Disabilities Act.

Benefits During FMLA Leave

You may choose to continue your participation in our health care program while on leave. However, it’s your responsibility to arrange for payment of necessary premiums during your leave. Failure to make the appropriate premium payments may result in the cancellation of your insurance coverage.

Additionally, if you fail to return to work at the end of the leave, (name of organization) has the right to recoup the premiums paid for maintaining health coverage.

Returning to Work

When you return to work after your FMLA leave, you will be restored to your original position or to an equivalent position with equivalent pay, benefits, and other terms and conditions of employment.

Disability Plans and FMLA

Situations may arise in which both (this organization’s) short- or long-term disability plan and the Family and Medical Leave Act apply. While the purpose of FMLA is to provide 12 weeks (26 weeks) of unpaid, job-protected leave, the purpose of short- and long-term disability benefits is to help supplement lost income during long periods of incapacity.

Any leave granted under the disability policies shall run concurrently with the 12 weeks (26 weeks) granted under the FMLA. When an employee is eligible for FMLA only, all available paid sick leave, floating holidays, and vacation time must be used and will be designated as FMLA leave time before any remaining FMLA leave can be taken on an unpaid basis.

If you have any questions regarding how FMLA leave is applied, please contact (the business administrator).

Guidelines

When FMLA leave has been exhausted, employment may be terminated. If employment is not immediately terminated, (this organization) may designate any and all future absences as unexcused absences. Additionally, when FMLA has begun, and all sick and vacation time has been used, any non-qualifying FMLA absences may be considered unexcused absences.

This is a sample handbook policy only. Your organization is responsible for compliance with all applicable laws. Accordingly, this document should not be used or adopted by your organization without first being reviewed and approved by a licensed attorney in your area. Brotherhood Mutual assumes no liability in preparation and distribution of this sample document.

Family Medical Leave Act (FMLA)

SAMPLE POLICY: FAMILY AND MEDICAL LEAVE ACT

Request A Quote

Submit Your Question

SAMPLE POLICY:
FAMILY AND MEDICAL LEAVE ACT