In addition to posting FMLA posters and providing FMLA request forms, every covered employer must include a Federal Family and Medical Leave Act (FMLA) policy in their employee handbook, along with any state-specific FMLA policies. Because some states have their own FMLA and Paid Family Medical Leave (PFML) programs, it’s essential that an organization is in compliance with all FMLA policies in states where their employees work. Employers that have chosen to allow remote work since the pandemic may need to develop new, or multiple, FMLA policies to meet the requirements of state regulations. MP’s HR experts outline the ten key elements an FMLA policy must include.
10 Key Elements of a Federal FMLA Policy
1. Notation that FMLA, PFML, and paid sick leave will run concurrently.
If employers or their remote employees operate in states with PFML programs, employers must specify in their policy and notify their employees that FMLA and PFML will run concurrently if state law allows. (Note that in some cases, state law does not permit this.) Otherwise, employees may take PFML, then take additional time for FMLA. As a result, employees could be out of work for much longer than anticipated. Depending on the state laws, employers may be able to require employees to use their sick leave concurrently with their state and federal FMLA leave. Organizations should work with HR experts (like the ones at MP) to determine the most advantageous ways for their various leave programs to interact. They should clearly explain these interactions in their handbook policy.
2. Eligibility requirements.
The policy should include the qualifications an employee must meet to be eligible for leave. It should also list the types of leaves or qualifying events available under the various types of leave. For example, federal FMLA requires that an employee has been with the company for at least 12 months or worked at least 1,250 hours for the company. However, many state PFML programs do not require an employee to spend extensive time with the company before being eligible. It’s important to note that different states may expand FMLA or PFML rights.
3. Qualifying events for Federal FMLA.
To align with federal FMLA requirements, policies should clearly list the qualifying events that make an employee eligible for FMLA leave. They should also note the amount of leave available for the qualifying events. The amount of time employees may take leave during a single FMLA year may vary, depending on the circumstances and if the employee will be taking family leave, medical leave, or both. For instance, the amount of leave allowed will change for an employee taking leave for the birth of a newborn child or for adoption or foster care. In the case of a birth, the mother may take additional leave to receive health care for, or recover from, the birth. If an employee requests leave as a military caregiver or to care for a family member of the Armed Forces, they may be eligible to take a longer amount of time before they’re required to return to work. In some cases, employees may be eligible for up to 12 weeks, or as much as 26 weeks, of FMLA leave in a single FMLA 12-month period.
4. A definition of the employer’s FMLA year.
Some employers choose the conventional calendar year as their 12-month FMLA period. However, this is not necessary. It’s only required that all employees’ 12-month period are calculated using the same method. This protects employers from altering the 12-month FMLA year period in order to prevent employees from being able to take leave.
5. Requirements for bonding leave for foster or adoptive parents.
Employees must take this leave within 12 months of the foster placement or adoption. Employers may pull the language for this section from the FMLA FAQ sheet.
6. Employer requirements for FMLA notice.
An organization may choose to require that when taking FMLA leave, an employee gives advance notice. This period could be up to 30 days.
7. Call-in procedures.
Sometimes employees must unexpectedly take FMLA leave. This may happen when they have an emergency illness or injury, or must care for a family member with an emergency medical need. Employers must outline a procedure for these circumstances.
8. A comprehensive list of employee benefits and rights during leave.
Employers should outline employee rights during leave. In some states, employers may require employees to pay the employee portion of their premium towards their benefits. Organizations may reserve the right to discontinue employee benefits if the required payment towards the premium isn’t made. (If taking this action, employers should consult with a labor attorney or HR Professional to ensure compliance.) The policy should comprehensively cover this topic.
9. A list of employee FMLA obligations.
This list should be clear and thorough. MP’s HR experts strongly suggest that employers include a requirement for fitness-for-duty certifications for employees returning from FMLA leave. The fitness-for-duty certification reduces the likelihood of employees re-injuring themselves when returning from leave. They also protect the employer from related legal risks. Some state laws provide certain restrictions for requesting fitness for duty forms, so employers should ensure they comply with any applicable state regulations. Employers may also choose to require medical certifications from an employee when they’ve requested FMLA leave. Both medical certifications and fitness-for-duty certifications should address the employee’s ability to complete their essential job duties with or without reasonable accommodation. If employers require a medical certification, they must notify employees in this section of the policy. They must also advise an employee of this requirement within five business days of becoming aware of the need for FMLA leave. If the employer has concerns about the length of the FMLA leave, they may also request a medical certification at a later date.
10. Options for intermittent leave.
Some employers choose to offer the option to take FMLA during a reduced work schedule. If they do, the FMLA policy should outline how intermittent leave is calculated and advanced. In some cases, employers may choose to temporarily transfer an employee to an alternative position or reduced work schedule to accommodate intermittent FMLA leave. They should consult with an HR Professional or employment lawyer prior to taking this action.