Summary: The Family Medical Leave Act (FMLA) can be complex. Find out how to handle FMLA claims as a manager in this podcast with Nancy Saperstone of Insight Performance.
John Maher Hi. I’m John Maher. I’m here today with Nancy Saperstone, Senior HR Business Partner at Insight Performance, a human resources and employee benefits consulting firm based in Massachusetts with offices in Dedham and Beverly. Today our topic is FMLA, what managers need to know. Welcome, Nancy.
Nancy Saperstone: Thank you for having me.
FMLA Leave Defined
John: Sure. Nancy what is FMLA leave?
Nancy: FMLA is leave that’s taken under the Family Medical Leave Act and it gives employees job-protected time to take unpaid leave to deal with important family and health situations. There are couple of different reasons why you may take FMLA. It could be your own serious health condition or a family member’s serious health condition. It could be for birth or adoption or the foster care placement of a child. It could be to care for an injured service member or a veteran. It also could be for demands related to a close relative’s active duty in the military.
Definition of “Family Member” Under FMLA
John: Is there a definition of family member, who does that include?
Nancy: Yes, they actually do outline specifically who is qualified as a family member. It includes the employee’s spouse, their son, daughter or parent that may have a serious health condition. It’s interesting [though, because] it could also include grandparents. We recently had a situation where there was a grandmother who was a primary caregiver when the employee was younger and since that grandparent was the primary caregiver the employee was eligible for leave under FMLA.
John: It depends on the situation?
FMLA Eligibility Requirement
John: Are there eligibility requirements for leave or are all employees eligible?
Nancy: Yes, there are some eligibility requirements. On the employer side, companies with 50 or more employees are required to offer FMLA leave. On the employee side, the employee must have worked for the company for at least 12 months. They also have to have worked a total of 1,250 hours in the 12 months immediately preceding the date that they’re going to start the leave. If they’re very part time, they may not be eligible and there also must be at least 50 employees on site or within a 75-mile radius of the work site.
Why Employees Take FMLA Leave
John: Let’s talk a little bit about the reasons an employee might take FMLA leave. You mentioned their own serious health condition or the condition of a family member. Can you tell me a little bit more about that?
Nancy: Sure. A serious health condition could be a physical illness or a mental illness. It could be an injury or a condition that requires that they’re under inpatient care such as an overnight stay in the hospital or a hospice or a residential facility. They may be getting continuing treatment by a health care provider or they could be incapacitated due to different ongoing diseases such as asthma, diabetes, or epilepsy, and need treatment by a health care provider for that as well.
We’ve also seen for FMLA somebody may be getting treatments for chemotherapy and cancer treatments or kidney dialysis. There’s a whole range of different serious health conditions that can be fall under the FMLA. Also, it’s important to note that time off for pregnancy or prenatal care could also be included under serious health conditions.
John: Are there any other reasons for FMLA leave?
Nancy: Yes, the second reason is for bonding with a child upon birth placement of adoption or in foster care. If the leave is taken for this reason, it has to be taken within 12 months of the birth or adoption and it’s important to also note that both men and women are eligible for leave under this reason. Then the other reason why somebody might take leave is to care for a qualified service member. For all the other leaves we’ve been talking about, the maximum amount of leave under the law is 12 weeks, but for care of a service member increases to 26 weeks of allowable leave.
Leave under the military service portion can be taken for either a serious injury or illness of an active service member, or to care for a veteran with a qualifying serious injury or illness. An employee may also take leave due to the need that results from their family member being on a covered active military duty.
Amount of Leave Allowable Under FMLA
John: Now that we’ve gone over the reasons, can you tell me a little bit more about the amount of leave that’s allowed under FMLA?
Nancy: Yes, in general under federal FMLA, eligible employees can take up to 12 workweeks of leave during any 12-month period for the previously discussed situations, such as the newly born child, adopted, or placed in a foster care, to care for a spouse child or parent with a serious health condition, their own serious health condition, and then for care of a parent or spouse child on active duty.
[It’s] important though to note that FMLA also provides eligible employees with 26 weeks of unpaid FMLA leave during a single 12-month period to care for a covered service member or veteran recovering from a serious injury or illness so that’s a little bit different than the standard 12 week.
John: Okay, and does that leave always unpaid?
Nancy: The leave is typically unpaid unless the company has a policy to pay for the leave. The employee can use often their earned paid time off to help supplement and a lot of times also the leave may run concurrently with the employer’s disability plan and that will also give them some pay.
Requirements for Requesting FMLA Leave
John: Are there requirements around when an employee has to request the leave?
Nancy: Yes. Typically, the way the law is set up, an employee is required to give 30 days’ notice for what’s called foreseeable leave. If that foreseeable the leave is not foreseeable, then the employee should be giving it as soon as they’re able to do so. Typically, around one to two business days, it’s typically if it’s not foreseeable and similar to certification for medical purposes. Certification may also be asked by the employee who request leave.
John: For example, in the case of a mother giving birth, a month or so before the due date you’d want to let your employer know that, “Hey, if you hadn’t noticed already I’m pregnant” or in the case of an adoption even, you’d probably know when that was going to happen ahead of time.
Nancy: Usually you can plan for a lot of it but there are certainly cases [where you can’t.] If you get in a car accident and you’re in the hospital over the weekend, then as soon as you know, let your employer know. It’s interesting on the flip side the employer also has some requirements around what they need to do in terms of within 5 business days. If you go and you ask your employer for leave under FMLA, they need to give you some notification and provide you notice with your written rights and responsibilities under FMLA too. There’s some requirements on both sides.
John: Do they need to respond back to you within a certain amount of time as well?
Nancy: Yes, that should be within that five day period, but a lot of it sometimes also depends on when the employee is able to get that certification back to their company.
Health Insurance on FMLA Leave
John: Right, because you need to plan for your life too and you need to be able to plan well. Is my company actually going to give me this leave or do I need to show up at the office tomorrow or get fired or something like that? You need to be able to plan for that. What happens to the employee’s health insurance while they’re out on leave?
Nancy: While they’re out on leave under FMLA the company is required to maintain their existing group health plan coverage for employees at the same level and the conditions of coverage as while they were before they went on leave. If you are on family coverage for your medical plan you would continue that family coverage, and if the employee portion of the pay was 25% you would continue paying that 25%. Employers should make arrangements with employees going out on FMLA leave and how they’re going to get that portion of the premium back.
John: I’ve heard of intermittent leave, what’s that and how is that different?
Nancy: Oftentimes, FMLA leave is taken in blocks of time. If you are having a surgery or if you’re going out and you’re having a baby, typically you know you’re going to be out for three or four weeks and then you’ll be back.
Intermittent leave is more of a breakup of that leave but it still falls under the same rules in terms of allowing you up to 12 workweeks. For example, in the case of somebody who’s going through chemotherapy and needs one or two days off every month, or a woman who has severe morning sickness and it’s not necessarily a regular thing but it’s a couple days a month, or to get her prenatal exams. It’s not in that block of time but it is allowable under FMLA.
Job Protection Under FMLA
John: Okay, and in terms of job protection what does that mean?
Nancy: Again, under FMLA you are required to provide each qualified returning employee with the same position or an equivalent position with equivalent benefits pay and no other terms and conditions of employment. It’s oftentimes hard for you, things have changed while the person is out. You really need to be careful to make sure that you do maintain that same condition of employment.
John: What are some key takeaways that supervisors or managers should remember?
Nancy: It’s real important if you do have an employee who’s interested in taking or is going to need to take some FMLA leave to make sure that you give them the appropriate paper work that you talked to them about how they’re going to make their benefit payments.
Explain either the 12 weeks in a 12-month period or 26 weeks in a 12 month period, depending on why they’re taking that leave. Talk about [whether] that leave going to be in a block of time [or] is it going to be intermittently and work it out. And then because there are so many legal ramifications around FMLA, we do encourage you to work with your HR Department and make sure you understand exactly what needs to be done and consult the forms, the paperwork, and the documentation that’s necessary.
Origins of FMLA Leave
John: Could you tell me how long the FMLA has been around and is this what might have been called maternity leave some time ago and now it kind of expanded to include lots of situations that maybe weren’t being covered before?
Nancy: The exact date was back in the ‘90s that it went into effect. It actually is a little bit different than maternity leave. For example, in Massachusetts there is the Massachusetts maternity leave and that would cover employees who actually don’t qualify for FMLA. Sometimes these things run somewhat concurrently. Where if you have an employee [and] maybe your company’s under 50 employees so you’re not eligible for FMLA, or the employee just started six months ago and didn’t work the full 12 months. Then they are not eligible for FMLA but they will be eligible for likely some kind of [maternity leave], depending on your state requirement for maternity leave.
John: All right that’s really great information. Thanks again for speaking with me today Nancy.
Nancy: Thank you for having me.
John: For more information visit insightperformance.com or call 781-326-8201.