Category: FMLA

October 28, 2022

FMLA Basics and Beyond (Webinar Recap)

On October 27, 2022, I presented a complimentary webinar entitled “FMLA Basics and Beyond”. For those who couldn’t attend the live webinar, I’m happy to make it available for you to watch at your convenience.

In the webinar, I discuss:

Coverage & Eligibility
Qualifying Circumstances
Notice Obligations
Compliance Traps
Interaction with Other Laws

and much more!

President Bill Clinton signed the Family and Medical Leave Act (FMLA) into law on February 5, 1993. That means employers have been tasked with administering FMLA leaves for almost 30 years now. That doesn’t mean that compliance has become routine!

Though it has been a while since either the FMLA or its significant regulations have been amended, much else has changed in the world surrounding the leave granted by the statute. In this webinar, we take a look at applying the FMLA following a global pandemic and with an ongoing introduction of paid leave requirements that may interact with family and medical leave.

Don’t have time to watch the whole webinar right now? Click here to download the slides from the webinar.

Why You Should Watch “FMLA Basics and Beyond”

The FMLA is far more involved than simply permitting employees 12 weeks of leave when they get sick or have a child. Did you know that some employees might be eligible to take up to 26 weeks off in a row? Or that employees can take FMLA leave to see a family member off to military service?

Employers with at least 50 employees must comply with the FMLA or risk significant penalties. Not sure whether your organization is covered, this webinar explains how to count employees to determine eligibility. Whether you’re familiar with applying the FMLA or not, it’s a complicated statute with tons of hidden pitfalls. We’ll discuss many of those and warn you where additional concerns may arise.

If you’re responsible for FMLA administration in your organization and haven’t reviewed the legal requirements lately, this is a great opportunity to be reminded of the many implications of employee leave requests. Do you know how the FMLA and ADA interact? What about state paid leave laws, such as sick leave and paid family leave, where they exist?

Don’t Miss Our Future Webinars!

Click here to sign up for the Horton Law email newsletter to be among the first to know when registration is open for upcoming programs! And follow us on LinkedIn for even more frequent updates on important employment law issues.

June 22, 2022

FMLA Military Caregiver Leave

For most qualifying purposes, the Family and Medical Leave Act (FMLA) permits eligible employees to take up to 12 weeks of unpaid leave per year. However, one form of leave can last for much longer. An employee who qualifies for “military caregiver leave” has a right to up to 26 weeks of leave to provide care for an ill or injured military servicemember. But this form of leave is limited in other ways.

FMLA Eligibility

As a threshold for eligibility, an employee must have been with the employer for at least one year and have worked more than 1250 hours in the past 12 months. In addition, the employee must work within a 75-mile radius of at least 50 total employees of the same employer.

For more on FMLA eligibility, read “Who Is an FMLA Eligible Employee?”.

FMLA Qualifying Circumstances

Employees most commonly take FMLA leave due to the birth/adoption of a child or due to a serious medical condition that they or a close family member is suffering.

FMLA leave is also available in two situations involving military service. These scenarios are respectively known as “qualifying exigency leave” and “military caregiver leave.”

Under the FMLA, employees are limited to 12 weeks of leave per year based on birth/adoption of a child, serious medical conditions, and qualifying exigencies. Only military caregiver leave has a separate maximum leave period.

Covered Servicemembers

Employees may be eligible for military caregiver leave based on the serious injury or illness of a family member who is a “covered servicemember.”

Covered servicemembers are current members of the U.S. Armed Forces, including a member of the National Guard or Reserves, who are either:

receiving medical treatment, recuperation, or therapy;
in outpatient status; or
on the temporary disability retired.

The above conditions must be based on a “serious injury or illness.”

Serious Injury or Illness

Under the FMLA, a “serious injury or illness” is one that a servicemember incurred in the line of duty on active duty that may cause the servicemember to be medically unfit to perform the duties of their office, grade, rank, or rating. Pre-existing injuries or illnesses aggravated by active duty service also qualify.

Family Relationship

To take military caregiver leave under the FMLA, the covered servicemember must be the employee’s spouse, child, parent, or next of kin.

Available Leave

An employee may take up to 26 weeks of FMLA to care for a covered servicemember. However, unlike other forms of FMLA leave, this leave is limited to a single leave period that does not recur annually. More specifically, the 26 weeks must be taken in a single 12-month period that begins when the employee first takes military caregiver leave for the particular servicemember and illness/injury.

Note; If the employee’s covered servicemember relative has a different serious illness or injury, then the employee may be eligible for another leave of up to 26 weeks in a new single 12-month period.

Certification

As with other forms of FMLA leave, employers may require employees to provide documentation certifying their eligibility to take military caregiver leave.

The U.S. Department of Labor provides an optional “Certification for Serious Injury or Illness of a Current Servicemember for Military Caregiver Leave under the Family and Medical Leave Act” form.

Process FMLA Requests Carefully

As with all forms of FMLA leave, an employee doesn’t have to specifically request “military caregiver leave” or even “FMLA leave.” Once the employee provides enough information that they may qualify for leave protected by the FMLA, employers must provide appropriate documentation of employee rights and eligibility. Failing to do so or to designate leave as FMLA leave could result in an employee retaining the right for protected leave at a later date, among other potential negative consequences to the employer.

July 29, 2020

New FMLA Forms for 2020

On July 16, 2020, the U.S. Department of Labor’s Wage and Hour Division (WHD) released revised Family and Medical Leave Act (FMLA) optional-use forms. Unlike the last revisions, there are tangible changes this time. Employers may begin using the new FMLA forms now.

Streamlined Forms

The DOL emphasized that the new forms are more streamlined and user-friendly:

“WHD’s new forms are simpler and easier for employees, employers, leave administrators and healthcare providers to understand and use. Revised with substantial public input, the forms include more questions that users can answer by checking a response box and electronic signature features to reduce contact. WHD believes the changes will reduce the time users spend providing information, improve communications between leave applicants and administrators and reduce the likelihood of violations.”

The following new FMLA forms are available through the DOL’s website:

WH-381: Eligibility Notice – This notice is used to inform an employee of their eligibility for FMLA leave or advise the employee of at least one reason why they are not eligible.
WH- 381: Notice of Eligibility & Rights and Responsibilities – This form advises an employee of their eligibility for FMLA leave or why they are not eligible. It also informs the employee of specific expectations and obligations associated with the leave request and the consequences of not meeting those obligations.
WH-382: Designation Notice – The form notifies the employee of the status of their FMLA leave request. It allows the employer to request additional information to process the application.
Certification of Healthcare Provider for a Serious Health Condition
- WH-380-E: Healthcare Provider Certification for Employee’s serious health condition.
- WH-380-F: Health Provider Certification for Employee’s Family member with a serious health condition.
Certification of Military Family Leave
- WH-384: Qualifying Exigency – Use this form when a leave request is related to the deployment of the employee’s spouse, son, daughter, or parent.
- WH-385: Military Caregiver Leave of a Current Servicemember – Use this form when an employee is requesting leave to care for a family member who is a current service member with a serious injury or illness.
- WH-385-V: Military Caregiver Leave of a Veteran – Use this form when an employee is requesting leave to care for a family member who is a covered veteran with a serious injury or illness.

Rationale Behind New FMLA Forms

The DOL provides these forms for optional use by employers. Though alternative forms may be used, employers must meet minimum legal notice requirements. The DOL forms are presumptively valid if employers use them properly. The new electronically fillable PDF forms are designed to accomplish these objectives:

Further streamline the FMLA leave request, approval, and implementation process by making the forms more user-friendly.
Reduce the amount of time required to complete the forms.
Reduce the number of errors and violations associated with the request process.
Improve communications between the employee and employer.
Address some of the questions and concerns raised during the 60-day public comment period following the DOL’s release of draft forms in October 2019.

The DOL also added a Q&A section related to the new forms. Here, the DOL reiterates that employers are not required to use the new forms. But the documents they use must contain the same basic notification information and require the employee or healthcare provider to disclose only the information necessary to process the request. Thus, the DOL generally recommends that employers (and employees) use the new forms.

Look for More DOL Developments on FMLA

On July 17, 2020, the DOL published a Request for Information (RFI) seeking public comments on the effectiveness of the current FMLA regulations. This action indicates that the DOL is contemplating additional regulatory changes to the FMLA leave request process. The RFI includes examples of possible FMLA topics public comment. But it also permits comment on any other FMLA topic. Interested parties can submit comments by mail or electronically through September 15, 2020.

Employers should use this update as an impetus to review their current FMLA policies and procedures for compliance.