What is FMLA and what do I do with all these forms? If you ask yourself these questions then this article is for you. Here I first give you an introduction to FMLA and then we talk about the FMLA forms. You may have heard of FMLA leave or FMLA paid leave, but did not understand it. You may be wondering what the FMLA guidelines are or you might just need a FMLA eligibility checklist, so you know you are good to go regarding labor laws.
What is FMLA?
FMLA stands for the Family and Medical Leave Act. This is a law that gives employees:
An entitlement to unpaid leave (this is FMLA leave and what some mistake for FMLA paid leave);
Job protection; and
Continuation of group health coverage.
An entitlement to unpaid leave means that you, as the boss, are not allowed to deny the leave request. It does not mean that you need to come up with a new type of paid leave. Job protection means that you cannot fire the employee when she returns to the office, for being gone too long. Lastly, continuation of group health coverage means that the employee gets to retain whatever health coverage she had before she went on leave. This does not mean that she does not have to pay her share of the costs. You would work out a system to account for the employee’s payment, but the big deal is that she retains coverage.
Employees cannot invoke FMLA (that’s fancy HR talk for the employee stating that she wants to take leave under FMLA) whenever they want. FMLA only applies to select absences.
12 weeks of leave under FMLA for:
Birth of a child, adoption, or foster care;
Care for a spouse, child, or parent with a serious health condition;
The employee’s serious health condition; and
Some items related to when a spouse, child, or parent is a covered military member on covered active duty.
Employees can also get 26 weeks for military caregiver leave. This applies to spouse, child, parent or next of kin.
That was a lot, so if you are still confused then let’s chat about it. I’m a little nerdy (ok - a lot nerdy) and would love to chat with you and answer all your questions. Figuring out what a serious health condition is or what is covered related to active duty or military caregiver leave can be difficult, so I recommend talking these things out with a human resources consultant (like me) or an employment law expert.
If you want a video version of this blog then check this out. This article has a little more information than the video, so I recommend checking both out.
Forms, forms, and more forms
Before we talk about FMLA forms, lets talk about why there are forms. You, as the business owner, are the one responsible for everything and need to ensure that an absence under FMLA meets the requirements we talked about earlier. Sure, you can take self certification (that’s more HR fancy talk - it just means that you take the employee’s word), but I recommend you don’t.
However, do not ask for medical that you already have. The employee might have given you information about her own serious health condition that included when she needed to be absent when she asked you for a sit-to-stand desk to help her back. In this case you already have the medical, so asking for it again would be super bad. This leads me to my next point… the format does not matter. Sure, the employee can use the handy forms, but if her doctor wrote a doctor’s note instead then that is fine.
Now we can talk about the forms.
The Department of Labor creates these forms. The current forms expire at the end of August, so make sure to go here to see the latest forms.
There are forms for everything. The first form is the one you send to the employee that informs her of her FMLA rights. This is great, because it is a handy resource for your employee, but it also creates a record that you really did provide the notice. Then you have a form to use to give the employee the answer. This could be that you grant or deny the request, or it could be that you need a little more information. This is great, because its gives you comfort that you are going through the correct process.
The next forms are for the employee. There is a form for each of the reasons to take leave under FMLA. So, the employee just picks the one that matches her need for leave. You fill out the top part that talks about the position. Then the employee gives it to her doctor. You must provide your employees at least 15 days to provide you the medical documentation. However, you should give up to 30 days if an extension is requested. Often times doctors think they have 15 days. This means that once you add the time it takes your employee to give the form to the doctor and then pick it up, we are past 15 days. The bottom line is to give at least 15 days, but also be reasonable.
Frequently Asked Questions
What is FMLA paid leave?
There really is no such thing as FMLA paid leave. FMLA leave is simply an entitlement to unpaid leave and job protections. FMLA is set by federal law, so there might be state or local laws that require you to provide paid leave to your employees. There are also rules about mandatory sick leave if you contract with the federal government. In summary, FMLA leave simply is an employee’s right to be away from the office for select reasons.
Why does my friend say they do FMLA differently at her job?
FMLA does not apply to all employers the same. To start, there are two types of FMLA. FMLA that is administered by the Department of Labor (this is the one you will care about) and FMLA that is administered by the Office of Personnel Management (this is for many federal agencies). One big different between these two is the employee notification requirement which only applies to FMLA administered by the Department of Labor. There can also be differences between employers regarding if they require employees to use any paid leave they have earned at the same time as using FMLA leave. FMLA administered by the Office of Personnel Management can be taken separately or together with paid leave. The employee gets to decide. However, this does not apply to FMLA leave administered by the Department of Labor. This means that you might have the option of forcing employees to take their paid leave at the same time that they are taking FMLA leave. This can be hard, so consult an expert.
I’m a small business, so do I need to worry about FMLA?
Maybe. FMLA applies to some small businesses. First you need to determine if you are a covered employer. If you are, then you need to see if each of your employees if an eligible employee. It is important that you do this even if none of your employees are interested in taking FMLA leave, because you likely are required to provide your workforce a FMLA notice. Below is a quick FMLA eligibility checklist.
Private-sector employer, with 50 or more employees in 20 or more workweeks in the current or preceding calendar year, including a joint employer or successor in interest to a covered employer;
Public agency, including a local, state, or federal government agency, regardless of the number
of employees it employs; or
Public or private elementary or secondary school, regardless of the number of employees it employs.
Works for a covered employer;
Has worked for the employer for at least 12 months;
Has at least 1,250 hours of service for the employer during the 12 month period immediately preceding the leave; and
Works at a location where the employer has at least
50 employees within 75 miles.
Therefore, as a small business owner you may not be entitled to provide FMLA leave to your employees, but that does not mean that you should not implement an employee friendly leave program. It always pays to take care of your employees.
We went over a lot of information in this article. I hope that you feel a little easier about FMLA guidelines, FMLA leave, and the FMLA forms. We talked about labor law and I cautioned you in some spots because I care and do not want to see a labor law dispute or discrimination issue. You can always get help from your hr consultant or attorney who specializes in employment law.
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