FMLA Compliance Guide for Small Businesses
Everything you need to know about the Family and Medical Leave Act before it applies to you, and what to do once it does.
FMLA is one of the most misunderstood employment laws for small businesses. Here is what it requires, when it applies, and the costliest mistakes to avoid.
What FMLA actually requires
The Family and Medical Leave Act requires covered employers to provide eligible employees up to 12 weeks of unpaid, job-protected leave per year for qualifying reasons. During that leave, the employee's group health benefits must continue under the same terms as if they had not taken leave.
Job-protected means the employee is entitled to return to the same or an equivalent position when the leave ends. Equivalent means same pay, same benefits, same status, and substantially similar duties. Getting this wrong is one of the most common FMLA violations.
When FMLA applies: the 50-employee threshold
FMLA only applies to employers with 50 or more employees within a 75-mile radius. If you have fewer than 50 employees, federal FMLA does not cover you. However, several states have enacted their own family and medical leave laws with lower thresholds. North Carolina does not have a state-level FMLA equivalent, but you should confirm this for any state where your employees are located.
For covered employers, an employee is eligible for FMLA leave if they have worked for you for at least 12 months, worked at least 1,250 hours in the past 12 months, and work at a location where the employer has 50 or more employees within 75 miles.
Qualifying reasons for FMLA leave
FMLA leave can be taken for the birth or adoption of a child, the serious health condition of the employee or an immediate family member (spouse, child, or parent), or qualifying exigencies related to a family member's military service.
A serious health condition is more than a common cold. It means an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a healthcare provider. Chronic conditions like asthma, diabetes, and migraines can qualify when they require periodic visits to a healthcare provider.
Employer obligations under FMLA
When an employee requests FMLA leave or when you have reason to believe leave may be FMLA-qualifying, you are required to provide the employee with an eligibility notice within five business days. You must also provide a rights and responsibilities notice and, once the leave is approved, a designation notice.
The notice requirements are strict and the penalties for failing to provide them are real. Employers who fail to notify employees of their FMLA rights can be held liable for any harm the employee suffers as a result, including lost wages, benefits, and legal fees.
The most common FMLA mistakes small employers make
The most common mistake is failing to recognize that a situation may be FMLA-qualifying. If an employee calls in sick with a condition that could be serious, you have an obligation to inquire further, not simply record an absence. Failing to flag potentially FMLA-qualifying situations exposes you to liability even if the employee never formally requested leave.
Other frequent mistakes include counting FMLA leave against an employee's attendance record, contacting employees excessively during leave, failing to restore the employee to an equivalent position on return, and not requiring medical certification in a consistent and documented way.