FMLA for Small Businesses

If you are a small employer and you treat your employees like members of your immediate family, who can blame you?  

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But what happens when one of your employees can't report to work because of an extended illness or chronic condition? Or one of your employees has a child with medical needs that require a lot of doctors appointments? Or one of your employees is caregiver of a terminally ill parent?  

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What are your obligations to your employees if the dreaded happens?

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This guide will help small business owners understand whether they're obligated to comply with the Family and Medical Leave Act and its regulations.

What is the Family Medical Leave Act (FMLA)?

The Family and Medical Leave Act (FMLA) is a federal law that, since 1993, provides eligible employees with opportunities to take up to 12 weeks of “protected” unpaid leave to take care of medical issues or family emergencies if the employer and employee meet certain requirements. So what are those requirements? Read on to find out.

Does My Small Business Need to Offer FMLA?

In general, small businesses that employ 50 or more employees have to comply with the FMLA.

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Your business also has to employee these 50 or more employees for 20 workweeks or more. An employee is considered employed for an entire workweek if they work any part of that week, and workweeks don't have to be consecutive.

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The employees that count toward your FMLA total include:

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• Any employee working in the U.S. or U.S. territory
• Any employee on your payroll records, even if they aren't paid for the workweek
• Employees on paid or unpaid leave (including FMLA) as long as there is a reasonable expectation they'll come back to work
• Employees of foreign companies operating in the U.S.
• Part-time, temporary, seasonal and full-time employees.

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Tip #1: If your small business meets the 50-employee threshold, you must post a visible and obvious notice of employee FMLA rights in the workplace.

Does a Small Business with Less Than 50 Employees Have to Offer FMLA?

Even if your small business has less than 50 employees, you may still have to comply with FMLA if you have a joint employment relationship, or share employees with another business. These shared employees go toward your total employee count.

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So, if you have 35 employees, but share 15, then in the eyes of FMLA, you cross that 50-employee threshold and will need to follow FMLA regulations.

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Your responsibilities will vary based on whether you are the primary or secondary employer of the person taking FMLA leave. You can figure out which role you play by considering the following:

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• Who has the authority to assign work and to hire and fire the employee
• Who decides the amount the employee is paid, and how often
• Who provides leave and other forms of benefits

If you're this person, then you're the primary employer and it’s your job to give required notices to your employees, provide FMLA leave and restore the employee to the same job or an equivalent one when they get back. 

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And the secondary employer essentially can’t interfere in any way with the employee’s FMLA leave.

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Tip #2: When a temporary agency supplies employees to an employer, a “joint employment” ordinarily exists, and the temporary agency is most commonly the primary employer. BUT, according to leave laws, the secondary employer will have to restore the employee to the same or equivalent job when they return from FMLA leave.

When Can Employees Request Leave under FMLA?

An employee may be granted FMLA if:

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• They have a qualifying reason
• Worked for your company for 12 months (either consecutively or non-consecutively)
• Worked at least 1,250 hours during the prior 12-month period before the first day of requesting leave
• Work at a location where the small business has 50 employees within 75 miles of that worksite from the date when the employee asks for leave

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Tip #3: A qualifying reason includes recovering from a serious injury or medical condition that prevents an employee from performing his/her job; the birth of a child; the placement of a child or foster child with the employee; to care for a parent, spouse or child with a serious health condition; or to attend to a qualifying exigency which arises out of military service or the military service of an immediate family member/care for a servicemember with a serious illness or injury (if the military member is the employee's spouse, parent, child or next of kin).

How Does Requesting FMLA Work?

When requesting leave under FMLA, an employee isn't necessarily required to use the specific phrase “FMLA leave” for the request to be valid. For example, mentioning a need to take time away for medical reasons due to ongoing chemotherapy treatments is sufficient for the request to be covered under FMLA.

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In addition, a small business can require employees to provide medical documentation of the need for FMLA leave within a reasonable timeframe (i.e. 15 calendar days). You then have five days to give the employee notice of whether their leave is covered under FMLA. If the requested leave is determined not to be covered under FMLA, the employee must be provided with a valid reason why.  

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Tip #4:  Ideally, an employee in need of leave under FMLA should provide at least 30 days advance notice or provide notice of need as soon as possible. 

Is FMLA Leave Indefinite?

No.

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FMLA regulations allow up to 12 workweeks (or 26-weeks if taken in increments) of leave over a 12-month period, however small businesses have the freedom to design their own FMLA guidelines. For instance, to avoid employees taking 12-weeks at the end of one calendar year, and an additional 12-weeks at the beginning of the next calendar year, many small businesses use a rolling period.  

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With a rolling period, each time an employee takes FMLA leave, their remaining leave equals the balance (out of their 12 weeks) that hasn't been used in the previous 12 months.

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More importantly, individual needs determine whether FMLA is taken intermittently or consecutively. As a small employer, you’ll have to include an assessment of how your employee’s FMLA leave schedule causes the least amount of disruption to their treatment plan and your specific business operations.

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Tip #5:  If an employee provides adequate documentation before an approved leave, the employee is often excused from providing additional documentation for intermittent leave.

Can FMLA Leave be Denied?

Yes.

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Although uncommon, it is possible to deny FMLA when: 

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• The employee does not provide proper leave notice
• The employee is seeking leave for a non-qualifying reason
• The employee does not meet eligibility requirements in federal leave policy guidelines
• The small business is not subject to FMLA because their headcount falls below the required threshold
• The employee refuses or otherwise fails to authorize release of medical certification of need

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Tip #6:  To delay or deny an employee’s FMLA leave request due to failure to provide proper notice, a small business must show that they themselves provided the employee with proper notice (which can easily be done by complying with the general posting requirements).

What Protections Does the FMLA Provide?

An employee who returns to work after taking FMLA is entitled to their previous job with the same duties and responsibilities, working conditions, salary, benefits, privileges, and status—but only if the employee in question is not a "key employee" and refusal of job restoration is necessary to prevent the small employer from “substantial and grievous economic injury.”  If job restoration is not possible, you must notify the employee immediately, and give them a reasonable opportunity to return to work.

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If you don’t follow FMLA guidelines and provide these job protections, you may be subject to damages including an order to grant leave improperly denied, monetary damages for expenses caused by denying leave, and attorneys’ fees. In addition, small businesses cannot retaliate against employees who take FMLA—retaliation may make you responsible for employee reinstatement, back pay and liquidated damages.  

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Tip #6:  The U.S. Department of Labor is authorized to sue on behalf of individuals under the FMLA, to ensure its compliance, and to mitigate legal repercussions.  

What More Should Small Businesses Consider?

Designed with good intentions and a clear purpose, FMLA contains many additional nuances that you may not know. For example:

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1. FMLA can be taken to bond with a new child, and this includes a natural child, an adopted child, and a child in foster care—and the time to bond with a new child is not limited to female employees.
2. There is an exception to 12-weeks off per year: an employee who needs time off to care for a covered servicemember who suffers an illness or injury while on military duty may take up to 26 weeks of leave in a 12-month period (but this is available once per family member or per injury).
3. There is no requirement for an employee to use all their FMLA leave during one period of time—an employee can be allowed to take a few days or hours of FMLA leave at a time.  
4. Use of intermittent or reduced schedule leave requires employer approval.
5. FMLA is unpaid—the leave provisions do not require employers to offer extra paid leave, however employees may be able to use accrued vacation time, sick leave, or PTO benefits while on FMLA.
6. When the need for FMLA leave is not predictable, the employee must give as much notice as is practical—that is, notice is still required.
7. If health insurance coverage is a benefit to working for a small business, employees must be provided with an option to continue health benefits while on FMLA.
8. If an employee's leave is due to illness, an employer may require the employee to provide medical certification of fitness to return to work after their leave entitlement.

Because this article merely scratches the surface of this extremely complex piece of federal legislation, and state laws may vary, always have your human resources department (even if that department is you!) check with the U.S. Department of Labor (DOL) at https://www.dol.gov/agencies/whd/fmla for additional information. To view the federal government's various fact sheets on the topic, click here.