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FMLA Leave: An Overview for Small and Mid-Size Employers

FMLA Leave: An Overview for Small and Mid-Size Employers

The Family and Medical Leave Act (FMLA) is a federal law that entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons. A private-sector employer is “covered,” and therefore subject to the FMLA, if it has, “50 or more employees within 75 miles for each working day during each of twenty or more calendar workweeks in the current or preceding calendar year.”

If your company is subject to the FMLA, it will be important for you to understand how the law applies to your business. This includes understanding: (i) which employees are eligible for leave; (ii) when those employees are eligible for leave; and, (iii) the potential legal ramifications if your company fails to comply with its obligations under the law.

When Can Employees Take FMLA Leave?

Under the FMLA, there are four broad categories of circumstances in which eligible employees of covered employers are entitled to leave. These categories are:

Childbirth or Adoption – The birth of a son or daughter or placement of a son or
daughter with the employee for adoption or foster care.

Serious Health Condition – If the employee has a “serious health condition” that prevents them from performing the essential functions of their job.

Family Member with a Serious Health Condition – If the employee needs to provide care for a spouse, son, daughter, or parent who has a “serious health condition”.

Military Exigency – For any qualifying exigency arising out of the fact that a spouse, son, daughter, or parent is a military member on covered active duty or call to covered active duty status.

The FMLA defines a “serious health condition” as any “illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a healthcare provider.” This definition includes conditions that can cause short term, chronic, long-term or permanent disabilities; seeking treatment (including surgery) to prevent incapacity; and, pregnancy. Many employers are familiar with the FMLA’s three-day rule for hospital visits and periods of incapacity. While this rule applies in most cases, there are circumstances in which a chronic condition can qualify an employee for FMLA leave, even if he or she is not incapacitated for a period of three or more consecutive days.

Other Employee Requirements for FMLA Leave

In addition to the applicability of one of the four broad categories of circumstances in which employees are eligible to take FMLA, the following criteria must also be met:

The employee must have worked for your company for at least 12 months.

The employee must have at least 1,250 hours of service during the 12-month period immediately preceding the first day of leave.

The employee must work at a location where your company has at least 50 employees within 75 miles.

What are the Risks of Non-Compliance with the FMLA?

Examples of issues that tend to create problems for small and mid-size employers are listed below. This list just scratches the surface of the FMLA’s complexities as numerous issues can create problems for employers with regard to FMLA compliance.

When Is a Request for FMLA Leave Sufficient?

The courts have ruled that there are no “magic words” for submitting a valid request for FMLA leave. However, thefederal regulations promulgated under the FMLA indicate that the employee’s request must “stat[e] a qualifying reason for the needed leave.”

What Does FMLA Leave Entail?

Under the FMLA, eligible employees can take three types of leave: (i) a single block of 12 weeks or fewer; (ii) intermittent leave “of periods from an hour or more to several weeks;” or (iii) a reduced work schedule, including working on a part-time basis.

When Can an Employee Be Terminated During or After FMLA Leave?

While employers can lawfully terminate employees who take FMLA leave, they must be extremely cautious in doing so, in order to avoid exposing themselves to the risk oflitigation.

When Is an Employer Required to Provide Reasonable Accommodations to an Employee Who Is Returning from FMLA Leave?

If an employee’s medical condition leaves him or her with a qualifying condition under the Americans with Disabilities Act (ADA), then the employer would be required to provide reasonable accommodations upon the employee’s return to work following FMLA leave.

When alleged FMLA (or ADA) violations lead to litigation, the costs for employers can be significant. These types of claims tend to resonate with jurors, and the verdicts in FMLA (and ADA) cases are often substantial. If you have questions about your company’s legal obligations, or if you are concerned about the possibility of an employee lawsuit, we encourage you to speak with an attorney.


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by Mark T. Sottile // Mark. T. Sottile is a skilled trial attorney at Burns White LLC who focuses on employment and commercial litigation. He has litigated hundreds of claims under a number of federal statutes, namely Title VII, 1981, the FMLA, ADEA, and ADA. He is located in the firm’s Philadelphia office.

Opinions expressed by contributors are their own.