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Ask the Attorney: Answering Your Questions About Your Responsibilities Under the FMLA

Ashley Kaplan, Esq., who heads the expert legal team behind Poster Guard® Compliance Protection, answers questions about this complicated law.

Q: I have 45 full-time employees. Is my business required to grant FMLA leave?

Ashley: Whether the FMLA covers your businesses depends on the size of your company. For FMLA to apply, federal law says a business must have 50 or more employees on its payroll for at least 20 workweeks in the current or preceding calendar year. It’s important to note the FMLA applies as long as the total number of employees is 50, even if those employees work in different locations.

Employee eligibility is a separate matter. To be eligible for FMLA leave, an employee must work in a location with at least 50 employees within a 75-mile radius (among other requirements).

Besides federal law, states often enact their own regulations to provide greater protection for their workers. If there’s a conflict between federal and state law, you have to apply the one that is beneficial to the employee. Some state and local leave laws apply to smaller employers, those with only 20 employees, for example. Some provide longer periods of leave – and may even require you to pay employees while they are out of work.

The bottom line is, it’s essential to know and follow all applicable federal, state and local laws before denying an employee’s request for FMLA leave based on your company size.

Q: What is Military Caregiver Leave, and is it longer than regular FMLA leave?

Ashley: Military Caregiver Leave provides up to 26 weeks of leave in a single year to care for close family members who have been injured in the line of duty. This special provision extends FMLA job-protected leave beyond the normal 12 weeks.

Q: How long does an employee have to work at my business to qualify for FMLA?

Ashley: To be eligible for FMLA protection, an employee must meet three requirements: (1) The employee must have at least 12 months total of employment with your company (not necessarily consecutive months); (2) the employee has to have been employed by your company for at least 1,250 hours of service during the 12-month period immediately preceding the commencement of the leave; and (3) the employee must work at a location where 50 or more employees are employed by your company within 75 miles of that worksite.

Q: What types of situations qualify for leave under the FMLA?

Ashley: If the employee’s request falls under one of the following categories, FMLA applies:

  • Birth and/or care of an employee’s child
  • Adoption or foster care of a child
  • Care of an employee’s serious health problem or that of an immediate family member

The FMLA also grants additional leave to eligible employees who have covered family members in the military, reserves or covered military veterans.

Q: Am I required to return the employee to the same job after FMLA leave?

Ashley: Yes. FMLA is job-protected time off, which means you can’t terminate someone for missing work if it is covered by the FMLA. In general, you’re also required to reinstate the employee to his/her original position or to an equivalent position with equivalent pay, benefits, and other terms and conditions of employment, including substantially similar duties and responsibilities.

Q: What qualifies as a “serious health condition” under the FMLA?

Ashley: The definition of a serious health condition is an illness, injury, impairment or physical or mental condition that involves either inpatient care or continuing treatment by a healthcare provider. Common colds, the flu, an ear infection, and similar conditions don’t count. Neither do cosmetic treatments unless complications develop.

Q: May I request medical confirmation from a physician?

Ashley: If your employee requests FMLA leave, you have the right to obtain a completed medical certification from the employee’s healthcare provider (or the family member’s healthcare provider). Once you give the employee a blank medical certification, you have to give him or her at least 15 days to return the completed paperwork.

Q: Does an employee have to formally request FMLA to receive benefits?

Ashley: Employees don’t have to mention FMLA to be given their rights. Companies must properly train their managers to recognize a potential FMLA-qualifying event so they can bring it to the attention of a senior manager or human resources department. Otherwise, an employee could be wrongly punished for too many absences, and this could expose your company to a lawsuit.

Q: Does posting compliance matter when it comes to the FMLA?

Ashley: Absolutely. For example, if an employee didn’t know what the procedures were for requesting a leave of absence because of a missing labor law poster, the employer could be held responsible for damages if that employee was terminated for being absent too often. Neglecting to post the required labor law postings can also extend the statute of limitations, and is a factor considered by courts when imposing “bad faith” damages.

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