FMLA Qualifications

FMLA Qualifications can be unclear, and employees are often uncertain about what they are exactly. FMLA qualifications refers to the requirements for an employee to successfully request and take leave under the FMLA. The FMLA, the shortened name for the Federal Family and Medical Leave Act (FMLA) a law that helps ensure that employees can take leave from work when they need to care for the serious medical or other specified need of themselves or of a close, immediate family member.

FMLA Basics

The FMLA is an important federal employment law. The goal of the FMLA is to provide legal protections that help employees balance their personal health and family obligations with their work. It seeks to achieve this goal by allowing qualifying employees at qualifying employers with qualifying circumstances to take time away from work to care for their obligations while maintaining job security. The FMLA does not ensure payment for time spend away from work – the guaranteed leave under the Act is unpaid.

Not everyone qualifies for FMLA leave to take care of important needs. Employees that do not qualify may be able to take leave through other means. They might qualify for leave under a law in the state where they work or they might have leave time, like vacation or sick time, from their employer that they can use to care for their family or medical need. If the employee, not a family member, is the one suffering a medical condition that hampers their ability to work, they may be able to take leave through short-term or long-term disability programs.

Employees who are unsure whether they qualify for FMLA leave should check with their employer’s human resources department and with the Department of Labor’s Wage and Hour Division. The FMLA can be complicated and both employees and employers make mistakes. For this reason, employees who are denied FMLA leave should consult with an experienced employment lawyer who might be able to help them get leave they are entitled to.

Basic FMLA Qualifications

FMLA qualifications for employees are tied primarily to three factors: (1) how long the employee has worked for the employer; (2) the type of issue the employee or their family member has; and (3) and how much FMLA time the employee has left.

Length of Employment. To be eligible for FMLA leave, an employee must have worked for their employer for at least 12 months before requesting leave. They do not have to be a full-time employee but time worked for the employer during that period must equal about 25 hours per week. Vacation and sick time off does not count towards this hourly requirement even though it may have been paid. What many don’t know is the 12-month requirement does not need to be consecutive unless the gap in employment with the employer was seven years or more.

Qualifying Scenario. The FMLA allows leave for a variety of reasons that can broadly be described as employee medical issues, employee’s family medical issues, and employee’s family military needs. Not all reasons in these broad categories qualify so it is important to research whether yours does before taking leave. There are some issues that seem like they might qualify because they are similar to valid reasons for FMLA leave but which do not. The most commonly confused uncovered event is a minor short-term illness, like a cold or flu, even though the employee may have to take a few days off from work.

Additionally, if the employee's issue is related to their family member, they must have a certain relationship with that family member to qualify. The FMLA lays out what family members an employee is entitled to leave to care for or provide military-related assistance to. For example, employees cannot obtain leave for issues related to their in-laws.

Remaining FMLA Leave. It is possible to take multiple, nonconsecutive segments of FMLA leave. However, there are limits on the total amount of FMLA leave a qualifying employee has. Qualifying employees get 120 days of FMLA leave in a 12-month period. If an employee has already used all of this time, they cannot take any additional FMLA leave no matter how sympathetic their situation is. They may still have other options available though.

Is Your Employer Covered?

Not all employers are bound by the FMLA leave. If your employer is not covered, then you will not get FMLA leave even if you present otherwise qualifying circumstances. Many governmental agencies are covered regardless of size. For private employers to be covered they must have 50 or more employees for a little less than half of the year. Part-time employees are counted but independent contractors do not count towards the total.

If you do not know how many employees your employer has, which is very normal, simply go to your human resources department and ask about FMLA or review your employee handbooks, posted notices and other guides for information. Covered employers cannot hide the fact that they must offer FMLA leave. Quite the opposite; they are required to provide information to you and other employees about FMLA.

All qualified employers are required to post an official Department of Labor notice outlining employee's’ FMLA rights in a highly visible location for every employee to see. If the employer has multiple locations, they are required to post one in every location or risk getting fined $110 per location. All new hires should be provided a copy of FMLA protections via handbook or new-hire packet. The information should be available if you know where to look.

Maintaining FMLA Coverage

In addition to meeting the basic requirements for leave, to qualify for FMLA, employees must follow rules and processes set by the FMLA and their employer for requesting FMLA leave or risk losing the protection of the FMLA.

The employee’s main obligations are to provide notice, describe and provide support for their qualification for FMLA, and keep their employer informed of changes.

Employees must provide 30-days notice of their intended leave of absence under the FMLA, if possible, otherwise, the notice must be provided as soon as possible. To support their request for leave the employee must sufficiently describe the need and provide a medical certification, when appropriate. The employee should also continue to keep their employer informed of changes in their circumstances while on leave. For example, if their immediate family members makes a faster-than-expected recovery, the employee should notify their employer of the change. Failing to comply with these requirements and best practices can result in denial of leave or other adverse consequences for the employee.

Employer Violations

The FMLA has benefitted countless employees, however, there are still concerns and issues with the application of the law. Chief among those concerns are the number of employer violations of the FMLA. FMLA compliance one of many compliance issues employers have to deal with. Most employers make genuine efforts to comply. Yet, many are confused. In a reputable study, over 15% of employers that the Department of Labor determined were covered by the FMLA, were not sure if they were covered or believed that they were not covered.

Unfortunately, it is not just honest mistakes that cause employers to violate the FMLA. Some employers try to circumvent their FMLA obligations, which can be expensive and burdensome for the employee who must run their business without the employee that is on leave. Employers who intentionally violate the FMLA usually don’t violate in obvious ways like completely denying leave. Instead, they often look for subtle opportunities to violate the act.

A common subtle violation is retaliating against the employee upon their return, which is itself illegal, by increasing work demands, decreasing resources, or otherwise setting the employee up for failure. Employers may also put the employee in a lower level position upon return because many employees don’t know that they are entitled to reinstatement in the same or an equivalent role. Employers may also try to classify an employee as a “key” employee whose position does not need to be safeguarded even when that employee does not meet the criteria for that FMLA exception.

How FMLA is Enforced

The FMLA is enforced by the Wage of Hour Division (“WHD”) of the Federal Department of Labor. The WHD learns of employer violations in two ways: from its independent investigations and from reports from employees. The WHD has limited resources so only investigates those employers that it suspects may be violating the law. Investigations do turn up violations but more often the WHD learns about violations through employee reports.

Because the WHD is reliant on employee reports, employees should learn about the FMLA and should not hesitate to report violations. If employees don’t know their rights, they might not know that they are being violated and won't report it or take other action to enforce their rights. If employees don’t report violations, the WHD may not know about them and employers who violate will get away with it. The FMLA provides protections but if employees don’t report and take other actions to help the WHD enforce them, then the FMLA becomes powerless – just words.

To file a complaint with the WHD, employees should locate the contact information for their local office, call the office, answer the representatives questions, and provide any other requested information. WHD complaints are confidential so employees should not fear reporting improper behavior by their employer. Employees who report are also protected by laws that prohibit retaliation for making complaints where the complaining employee sincerely and reasonably believes a violation exists.

If an employee’s complaint about an FMLA violation is found valid after a WHD investigation, the employee can pursue monetary compensation for the violation. Such compensation can include: lost wages, costs incurred during leave up to 12-weeks of pay, and full reinstatement with back-pay if the employee was terminated. The employee can also receive reimbursement for the legal costs and attorney's’ fees paid to pursue the action. To obtain these remedies, an employee usually has to go to court, but in some cases, an employer will make an offer to pay the employee a certain amount to settle the case and avoid court.

Influence of FMLA in States

Being flexible at both work and home is tough, especially in fast-paced, rapidly changing economy where work-life balance seems out of date. The FMLA, which was created in 1993, is among the most expansive and frequently invoked laws that was created to benefit the work-life balance of the citizen.

To strengthen the protection of employees, some states have unpaid leave that is similar to FMLA that allow employees to take time off for family or medical needs. For example, employers in Oregon are subject to FMLA if they have 25 or more employees. In Maine, private employers with 15 or more employees are subject to the law as well. Washington also has a law that provides parental leave (covering childbirth, newborn care, and adoptive or foster child care) to the employee if they meet the requirements of FMLA.

The Future of FMLA and Employment Laws

Labor laws have made a lot of progress towards providing adequate protections for employees in a relatively short time. In the early 1900s, there were very few laws that protected employees. As late as 1938 there was not even a minimum wage!

The FMLA is a particularly progressive law that tends to particularly benefit unskilled workers who often do not have the bargaining power to negotiate the leave packages they need on their own. In the years to come, the law and its state part counterparts are expected to continue to evolve and it is likely that there will be some pay requirement added at least for leave taken to care for a newborn child.

The Family Medical Leave Act is a complex and often misunderstood law. It grants valuable rights when taken advantage of but under which employees can accidentally forego rights if they do not use the process properly. If you’d like to discuss FMLA with an experienced attorney, post your legal need on Upcounsel’s attorney connection platform.