FMLA Rules | Types of Leave, Employer Obligations, & More
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FMLA Rules: What Small Businesses Should Know

The Family and Medical Leave Act (FMLA) can be confusing. There are a lot of rules to remember. To help you better understand the FMLA, here are the basics of the FMLA, information on when employees are eligible for FMLA leave, and guidance on which businesses have to comply.

What is the FMLA?

The FMLA is an act that requires you to grant employees up to 12 weeks of unpaid leave each year for specific health and family reasons. When employees are on FMLA leave, their jobs are protected. Employees can use FMLA leave for:

  • FMLA parental leave circumstances like the birth, adoption, or foster care placement of a child;
  • the care of a spouse, child, or parent who has a serious health condition;
  • a personal serious health condition that makes the employee unable to perform their job;
  • a situation that requires attention because of the military deployment of a spouse, child, or parent. Employees can take up to 26 weeks of unpaid leave during a 12-month period to care for a covered servicemember who is a spouse, child, or parent with serious injury or illness.

You must continue an employee’s existing health care benefits during FMLA leave, even though the leave is unpaid.

Intermittent leaves

Under the FMLA, employees can take intermittent leaves, but in a reduced amount. This is when an employee does not take the entire 12-week leave at once. Instead, the employee can use a few days or weeks of leave now and use more leave at a later time.

Employees can only take intermittent leaves under certain circumstances, such as medical therapy or treatment that cannot be performed outside of work hours. You can grant intermittent leaves in certain cases when the employee or their parent, child, or spouse is seriously ill. You may also agree to an intermittent leave plan for the birth of a child.

Tracking leaves

Employers can track the 12-week leave guarantee for the 12-month period in different ways:

  • Use a 12-month calendar year
  • Use a fixed time frame for the 12 months
  • Count forward 12 months from when the employee first uses FMLA leave
  • Use a rolling 12-month period where you count backward 12 months from the date the employee most recently used FMLA leave. Then count how much leave the employee used in that 12-month period.

To learn more about calculating the 12-month period, reference U.S. Department of Labor (DOL) Fact Sheet #28H. To learn about tracking an employee’s leave usage, reference DOL Fact Sheet #28I.

When do employees become eligible for FMLA benefits?

Employees become eligible for FMLA leave when:

  • they work for an FMLA-covered employer;
  • they work for the employer for at least 12 months (do not have to be consecutive months);
  • they have worked 1,250 hours for the employer during the 12 months immediately before the leave.

Both full- and part-time employees can use FMLA leave.

Which businesses must follow FMLA rules?

Does FMLA apply to small businesses? The number of employees you have determines if the FMLA applies to your business.

Businesses with more than 50 employees

Any business—public, private, or nonprofit—with at least 50 employees within a 75-mile radius of the business is required to follow the FMLA.

FMLA small business under 50 employees

FMLA requirements for small business will vary when you have fewer than 50 employees. Some, but not all, businesses with fewer than 50 employees must offer FMLA leave to employees.

Fluctuating worker base

A small business with a fluctuating worker base falls under the FMLA if it had at least 50 employees on board for 20 workweeks in the previous or current year.

Integrated and joint employers

Even if your business has fewer than 50 employees, you might be required to offer FMLA leave if you are considered an integrated employer or a joint employer.

You might be an integrated employer if you have two or more businesses with:

  • common management;
  • interrelated operations;
  • centralized control of labor relations; and
  • a degree of common ownership or financial control.

Integrated employers typically own multiple branches or locations of their business.

You might be a joint employer if:

  • you and another employer share an employee’s services or interchange employees;
  • one employer acts in the interest of another employer in relation to an employee; or
  • you and another employer share control of an employee because one employer controls, is controlled by, or is under common control with the other employer.

Joint employers typically use an employee sharing or leasing service, otherwise known as contract staffing.

If you are a joint employer or an integrated employer, you must count together the employees from all locations. If the combined number of employees is 50 or more, you must offer FMLA leave.

Example: You manage three restaurants, each with 20 employees within 75 miles. If you are considered an integrated employer, you will count the total number of employees at all the restaurants. Since there are 60 total employees (3 restaurants X 20 employees), you must offer FMLA leave to your employees.

Other businesses with fewer than 50 employees

If your business does not meet the 50 employee quota, you are not required to offer FMLA leave. However, you can still decide to offer FMLA leave to your employees. Offering FMLA leave will give your employees more flexibility to take time off work for personal or family medical reasons. Your employees less stressed if a medical condition arises and FLMA leave is available. You might also see reduced employee turnover since jobs are protected under the FMLA.

State rules

While the FMLA is a federal law, some states have laws that expand coverage. This could include offering more leave, offering leave sooner after an employee begins work, or requiring smaller employers to offer leave. Check your state’s laws to find out if you fall under more generous FMLA rules.

Your state may even have paid sick leave legislation, which doesn’t fall under the umbrella of the FMLA, but still involves sick leave.

For more guidance on the Family and Medical Leave Act, consult the U.S. Department of Labor.

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Original publication date was 4/3/2012.


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