Administering FMLA Leave Can Get Complicated

The Family Medical Leave Act (FMLA), enacted by Congress in 1993 to protect jobs, allows employees to take time off work for two reasons:

• Injury or illness
• To care for a family member who has been injured or is ill

While this sounds straightforward, administering FMLA leave can get complicated when employees want to take leave on an intermittent basis instead of all at once.

FMLA Basics

Public agencies, schools, and private sector employers who employ 50 or more employees for at least 20 workweeks in the current or preceding calendar year must provide eligible employees up to 12 workweeks of unpaid family and medical leave in a 12-month period for:

• The birth of a child or to bond with a newborn child within one year of birth
• The adoption of a child or placement of a foster child and to bond with the newly placed child within one year of placement
• A serious health condition that makes the employee unable to perform his or her job functions
• To care for the employee’s spouse, son, daughter, or parent who has a serious health condition
• Any qualifying exigencies arising out of the fact that the employee’s spouse, son, daughter, or parent is on covered active duty or is called to covered active-duty status as a member of the National Guard, Reserves or Regular Armed Forces.

To be eligible for FMLA, employees must have worked 1,250 hours during the 12 months prior to the start of leave. The 12 months of employment do not have to be consecutive.

Employees also must provide 30 days’ notice when they know they will need the leave. If possible, employees should try to schedule medical treatments, so they don’t disrupt the employer’s operations. When the need is not foreseeable, employees should provide as much notice as possible.

FMLA requests may be verbal or written and the employee does not have to say the words “FMLA” or “intermittent leave.”  They do need to provide enough information for an HR person to ascertain whether the leave should be covered by the FMLA.

Intermittent Leave Best Practices

Employers cannot deny an employee the right to take FMLA leave, nor can they penalize or discourage them from taking leave.

Employees can take the leave all at once or take intermittent leave, which can be taken in separate blocks of time due to a single qualifying reason. Another type of intermittent leave is when an employee requests a “reduced leave schedule.” The employee’s schedule is either reduced per week or workday. Examples of intermittent leave include time off for medical appointments, chemotherapy, or morning sickness.

Employers must deduct an employee’s leave by the actual amount of time they are off work. It’s a little more complicated when calculating exempt employees — especially if they work more than 40 hours in a workweek. To make it clear that an employee’s regular workweek is 40 hours, employers should include the information in their offer letters or employee policies.

It’s important for employers to have clear written policies and practices. The policies should detail the employer’s policy, including guidance on how to handle requests and tracking. Once the policies are in place, employees should receive regular communications about how FMLA works.

Managers must be trained to recognize FMLA leave requests and when to forward leave requests to HR.

An employer can fire an employee who is on FMLA leave if they can prove the discipline or termination was not related to the employee taking leave. Employers also can move an employee from his or her current position, if necessary. The new position must be equivalent in pay and benefits to the old position and something that fits the employee’s skills. These transfers should not go beyond the time of the FMLA leave.

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