What the FMLA Requires

In a nutshell, the FMLA requires companies to allow employees to take time off to fulfill certain caretaking responsibilities or to recuperate from a serious illness. If your company is covered by the law, an eligible employee is entitled to take up to 12 weeks of unpaid leave every 12 months to bond with a new child, care for a family member with a serious health condition, or recover from his or her own serious health condition.

FMLA leave is unpaid, although an employee may choose -- or the company may require employees -- to use up accrued paid leave, such as sick leave or vacation, during this time off. The employer must continue the employee's group health coverage during FMLA leave. When the employee's leave is over, the employee must be reinstated to the same or an equivalent position, with the same benefits, as the employee had before taking time off. Although there are a few exceptions to this requirement, they apply only in very limited circumstances.

Special rules apply to public employers and schools. The FMLA imposes slightly different obligations on government employers and schools; we don't cover these rules in this book. Similarly, in unionized workplaces, the collective bargaining agreement -- the contract between the company and the union -- might impose different family and medical leave obligations. Because every collective bargaining agreement is different, we can't cover them here.

Your Obligations as a Manager

The moment an employee comes to your office and says, "My wife is having a baby," "My mother has to have surgery," or "I've been diagnosed with cancer," you'll have to figure out whether the FMLA applies, provide notices and meet other paperwork requirements, manage the employee's time off, and reinstate the employee according to strict rules and guidelines.

Ten Steps to FMLA Compliance

Whenever you're faced with a leave situation that might be covered by the FMLA, you should ask yourself the questions listed below. This checklist will help you make sure that you meet all your legal obligations and don't forget anything important. Each of these topics is covered in detail in this book.

Step 1: Is your company covered by the FMLA? It is if it has had at least 50 employees for at least 20 weeks in this or the previous year. If your company is covered, it has to post a notice and perhaps adopt a written FMLA policy, even before an employee requests leave. Company coverage is explained in Chapter 2.

Step 2: Is the employee covered by the FMLA? An employee who has worked for at least a year, and at least 1,250 hours during the prior year, at a company facility that has at least 75 employees within a 50-mile radius, is covered. Chapter 3 explains how to make these calculations.

Step 3: Does the employee need leave for a reason covered by the FMLA? Leave is available for the employee's own serious health condition or to care for a family member with a serious health condition. Chapter 4 explains what a serious health condition is. Leave is also available to bond with a new child; that's covered in Chapter 5.

Step 4: How much leave is available to the employee? An employee is entitled to take up to 12 workweeks of leave, either all at once or intermittently, in a 12-month period. Chapter 6 will help you figure out how much leave an employee may take.

Step 5: Did you and the employee meet your notice and paperwork requirements? The employee must give reasonable notice and provide certain information; you must designate FMLA leave and give the employee required notices, among other things. Chapter 7 provides the details.

Step 6: Did you request a medical certification -- and did the employee return it? You can -- and should -- ask an employee who needs leave for a serious health condition to provide a medical certification from a health care provider. Chapter 8 explains how.

Step 7: Did you successfully manage the employee's leave? You must continue the employee's health benefits, manage and track intermittent leave, arrange for substitution of paid leave, and more. In addition, you have to make sure the work gets done while the employee is out, whether by distributing the employee's responsibilities to coworkers, hiring a temporary replacement, or outsourcing the job. Chapter 9 covers all of these issues.

Step 8: Did you follow the rules for reinstating an employee returning from leave? You must return the employee to the same or an equivalent position and restore the employee's seniority and benefits, unless an exception applies. Chapter 10 explains these rules, as well as what to do if the employee doesn't return from leave.

Step 9: Have you met your obligations under any other laws that apply? Whether or not the FMLA applies, the employee may be protected by the Americans With Disabilities Act, workers' compensation statutes, state family and medical leave laws, and other laws. To find out about your obligations under these other laws, see Chapter 11.

Step 10: Have you met your record keeping requirements? If your company is covered by the FMLA, you must keep certain payroll, benefits, leave, and other records, and you'll certainly want to keep proper documentation of your decisions and conversations, in case you need to rely on them later. These issues are covered in Chapter 12.

The Compassionate Manager

One of the challenges of implementing the FMLA is that you must meet your legal obligations within a context that can be emotional. After all, employees who qualify for FMLA leave are undergoing major life changes. On the positive side, the employee may be welcoming a new child, with all the joy and excitement that brings. On the more sobering side, perhaps the employee is losing a parent or spouse to a terminal illness, caring for a seriously ill child, or suffering through a painful disease. Although you have to follow the law's requirements and make sure your company's needs are met, no one wants to be the hardhearted administrator who responds to an emotionally distraught employee by handing over a stack of forms to be completed in triplicate.

The FMLA recognizes that employees who need time off for pressing family or health concerns might not always be able to dot every "i" and cross every "t." The law provides guidance on what to do if, for example, an employee is too ill or injured to communicate with you, can't return to work on time because of continuing health problems, or doesn't complete forms on time. These rules will help you balance your legal obligations with the natural human desire to be compassionate during a difficult time.

And, as we'll remind you from time to time, you have little to gain from imposing strict deadlines and paperwork requirements on employees who are truly in dire straits. Judges and juries are people, too, and they can find ways to enforce the spirit of the law in favor of an employee who needed its protection -- even if the employee failed to meet deadlines, give adequate notice, hand in forms on time, or provide required information.

Of course, people have different comfort levels when dealing with emotional subjects. Some can easily offer support and a shoulder to cry on; others would rather volunteer for a root canal. If you fall on the more stoic end of this spectrum, take heart: You don't need to become a therapist -- or the employee's best friend -- to show some understanding in a difficult situation. Just remember that a little kindness goes a long way. Acknowledge what your employees are dealing with, cut them some slack if necessary, and work with them to make the law serve its purpose.

Why You Need to Get It Right

Properly managing your FMLA obligations is a win-win situation. Employees win because they get time off when they really need it, with the assurance that their jobs will be waiting for them when they come back. You and your company win because helping employees balance work and family leads to greater employee loyalty to the company and all of the other benefits that flow from it, including better morale, stronger retention, and even improved productivity.

That's the carrot -- and here's the stick: Violating the FMLA can lead to serious trouble. And we don't just mean the morale problems and associated woes that can crop up if employees feel that their needs aren't important to the company. Mishandling family and medical leave issues can also give rise to lawsuits -- not just against your company, but against you, individually, as the manager who made the flawed decision. Of course, this is the ultimate worst-case scenario, and chances are good that you'll never have to face it. If you're one of the unlucky few, however, your personal assets -- such as your home, your car, and your bank accounts -- could be on the line, not to mention your career and reputation.

How Other Laws and Company Policies Come Into Play

The FMLA isn't the only law you need to consider when employees need time off for family or medical reasons. Other federal and state laws might also come into play, depending on the circumstances. In addition, a company's own policies often affect family and medical leave -- by, for example, providing paid sick, vacation, or family leave; requiring employees to follow certain procedures before taking time off; or dictating how seniority, benefits, and other issues are handled when an employee is on leave.

This possibility of overlap means two very important things to managers:

• Whenever an employee requests time off pursuant to any law or company policy, you must ask yourself whether the FMLA applies. The employee isn't required to explicitly ask for "FMLA leave"; it's your responsibility to determine whether the employee's time off is FMLA-qualified. An employee on workers' comp leave, temporary disability leave, parental leave, or even vacation might be protected by the FMLA, if the employee meets all of the criteria. And you will certainly want to count that time off as FMLA leave, not only to make sure the employee's rights are protected, but also to put some limit on the total amount of time an employee can take off in a year.
• When the FMLA and another law or policy both apply, you may have to provide more than the FMLA requires. If other laws or your company's policies give employees additional rights, you must honor them as well. The employee is entitled to every protection available, whether it is provided by the FMLA, another law, or your company's policies.

Overlapping Laws

The basic rule about what to do when the FMLA and another law overlap is easy to state: You must follow every applicable provision of every applicable law. In other words, you may not focus solely on the FMLA and ignore your company's obligations under other state or federal laws. If both laws apply to the same situation, this means that you must give the employee the benefit of whichever law is more generous or provides greater rights.

Here are some of the other laws that might also apply to an employee who takes FMLA leave (Chapter 11 explains each in detail; you can find information on each state's leave laws in Appendix A):

• Antidiscrimination laws, which prohibit discrimination based on certain protected characteristics. The Americans With Disabilities Act (ADA) and similar state laws might come into play if an employee's serious health condition is also a protected disability. Laws that prohibit gender and pregnancy discrimination sometimes also overlap with the FMLA.
• Workers' compensation statutes, which require most employers to carry insurance that pays for medical treatment and partial wage replacement for employees who suffer work-related injuries or illnesses. An employee who needs workers' compensation leave almost always has a serious health condition under the FMLA, as explained in Chapter 11.
• State leave laws, which require employers to give time off for specified reasons. Some states give employees the right to take pregnancy disability leave, parental leave, or other types of family and medical leave. If the employee takes leave for a reason that's covered by both state law and the FMLA, you can count that time off against the employee's allotment of FMLA hours. However, if state law provides leave that isn't covered by the FMLA, you can't count those types of leave against the employee's FMLA entitlement -- which means that the employee might be legally allowed to take more than 12 weeks off. (See Appendix A for detailed information on state family and medical leave laws.)
• State insurance programs, which provide some wage replacement, usually funded by payroll deductions, for employees who are unable to work due to a temporary disability (including pregnancy and childbirth). California also has a paid family leave insurance program, which provides similar benefits to employees who take time off to bond with a child or care for a family member. An employee on FMLA leave might be entitled to some compensation from this type of program.

Company Policies

Company policies interact with the FMLA in a slightly different way. For the most part, the employee gets the benefit of whichever provision, law or policy, is more generous. If your company's policies give more rights to employees than the FMLA does, you must follow your policies. For example, if your company has a family and medical leave policy that allows employees to take up to 16 weeks of leave, you cannot disregard that policy and give employees only the 12 weeks required by the FMLA. If your company's policies are less generous, however, the company must follow the FMLA: It must, for example, give employees a full 12 weeks of FMLA leave, even if the company's policies provide for only six.

Employees are also entitled to use whichever applicable provisions -- from the FMLA or from your company's policies impose less strict requirements. For example, many companies require employees to follow certain procedures to take advantage of company benefits. A company might require employees to request vacation time a month in advance, to call in at least an hour before missing a shift due to illness, or to provide a doctor's note for sick leave lasting more than a couple of days. If these types of policies conflict with -- or are stricter than -- the FMLA, you cannot enforce them against an employee who needs FMLA leave. On the other hand, if your policies require less of employees than the FMLA does, you may require the employee to comply only with your policies, not with the stricter requirements of the FMLA.

In addition to these general rules, the FMLA also makes explicit reference to particular types of employer policies. For example, the FMLA says that you can fire an employee for substance abuse, even if the employee takes FMLA leave to go to rehab, but only if your company has a policy allowing it to do so.

Because this is a potentially confusing area, we've devoted Appendix B to company policies that can affect your FMLA rights. This appendix identifies the most common areas in which company policy might come into play and provides some sample policy language that will help you maximize your company's rights. In addition, you'll find policy alert icons throughout the book. These icons let you know that your company's policy could determine your rights and obligations regarding that topic.

How to Use This Book

This book explains every aspect of the FMLA, from figuring out whether your company is covered by the law to reinstating an employee returning from FMLA leave. We cover these topics in the order in which you will generally encounter them as you administer an employee's leave. In addition, we provide helpful appendixes that explain how your state's laws and your company's policies could affect your company's FMLA rights and obligations.

We strongly advise you to read the whole book, even if you are already familiar with some aspects of the FMLA. Because the FMLA imposes fairly tight deadlines on employers -- and because the way you handle initial issues can affect your company's rights down the road -- you'll find it very helpful to understand the whole picture before you have to handle a leave request. Once you've reviewed every chapter, you can use the book as a reference, to quickly look up the information you need.

Each chapter includes features that will help you meet your obligations, including:

• Chapter Highlights, which explain the main topics to be covered
• Lessons From the Real World, which show how courts have handled particular issues in the real world
• Examples, which will help you understand how to apply the material to real-life situations
• Sample Forms, which allow you to request information from, and provide information to, employees about FMLA leave (all forms are included in Appendix C and on the CD-ROM at the back of the book)
• Manager's Checklists and Flowcharts, which you can use to make sure you've considered every important factor when making decisions about key FMLA issues, and
• Common Mistakes -- And How to Avoid Them, which will help you steer clear of legal trouble in applying the FMLA.

Complying with the FMLA can be a challenge, but the materials in this book will help you handle your responsibilities legally, fairly, and confidently. The first step is to figure out whether your company is covered by the law -- and, if so, to give employees notice of their rights under the law -- using the guidelines in Chapter 2. If you already know that your company is covered and has met its posting and policy obligations, move on to Chapter 3, which will help you figure out which employees are eligible for leave.

Introduction

The Family and Medical Leave Act (FMLA) is a law with an undeniably noble purpose: to help employees balance the demands of work with personal and family health needs. Since the FMLA was enacted in 1993, millions of employees have relied on it to protect their jobs while taking time off to recover from a serious illness, care for an ailing family member, or bond with a new child.

Surveys conducted by the Department of Labor (DOL), the federal agency that administers and enforces the law, show that the majority of companies covered by the FMLA find it very or somewhat easy to administer and that it has had little or no impact on company productivity, profitability, or growth. But managers and human resources professionals know that there's another side to this story. Experience has shown that it can be difficult to apply the FMLA when real employees take leave in the real world. For example, do you know what to do in these situations?

• An employee who needs leave is also covered by workers' compensation, a state family and medical leave law, and/or the Americans With Disabilities Act -- and the requirements of those laws appear to conflict with the FMLA.
• An employee asks for time off but won't tell you why or is reluctant to reveal personal medical information that might entitle the employee to leave.
• An employee wants to take FMLA leave at your company's busiest time of year.
• An employee wants to take time off as needed for a chronic ailment, rather than all at once, and can't comply with your company's usual call-in procedures.
• An employee doesn't give exactly the right amount or type of notice, forgets to hand in a medical certification form, or can't return to work as scheduled.
• An employee decides, after taking FMLA leave, not to come back to work.

These issues -- and many more like them -- come up every day, and managers have to figure out how to handle them legally and fairly, while protecting the company's interests. That's where this book comes in: It explains, in plain English, exactly how the FMLA works and what it requires. Although it can be tricky sometimes to figure out what to do in a particular situation, this book's step-by-step approach will help you sort things out and meet your obligations.

This chapter will help you get started. It introduces the law's basic requirements, with special emphasis on your responsibilities as a manager. It explains how other laws and company policies can affect your obligations when an employee needs time off for family or medical reasons. And it provides a roadmap to the rest of the book, so you'll be able to easily find the answers to all your FMLA questions.