ROC Weekly Management & Mindset Segment

FMLA and How It Affects Your Rehab Center and Employees

If you have more than 50 employees, your rehab center likely falls under the Family and Medical Leave Act. This Act outlines the entitlements of employees and obligations of employers for circumstances involving medical and care needs.

What is the Family and Medical Leave Act (FMLA)?

The Family and Medical Leave Act of 1993 is a United States labor law requiring covered employers to provide employees with job-protected, unpaid leave for qualified medical and family reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave. The FMLA is administered by the Wage and Hour Division of the United States Department of Labor.

What is the leave entitlement to employees under FMLA?

 Eligible employees are entitled to:

• Twelve workweeks of leave in a 12-month period for:

  • the birth of a child and to care for the newborn child within one year of birth;

  • the placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement;

  • to care for the employee’s spouse, child, or parent who has a serious health condition;

  • a serious health condition that makes the employee unable to perform the essential functions of his or her job;

  • any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty;” or

• Twenty-six workweeks of leave during a single 12-month period to care for a covered service member with a serious injury or illness if the eligible employee is the service member’s spouse, son, daughter, parent, or next of kin (military caregiver leave).

Who is covered under FMLA?

Here is a list of people who are eligible for coverage under FMLA, for both employees and employers:

Employees

Only eligible employees are entitled to take FMLA leave. An eligible employee is one who:

• Works for a covered employer;

• Has worked for the employer for at least 12 months;

• Has at least 1,250 hours of service for the employer during the 12-month period immediately preceding the leave; and

• Works at a location where the employer has at least 50 employees within 75 miles.

Employers

The FMLA only applies to employers that meet certain criteria. A covered employer is a:

• Private-sector employer, with 50 or more employees in 20 or more workweeks in the current or preceding calendar year, including a joint employer or successor in interest to a covered employer;

• Public agency, including a local, state, or Federal government agency, regardless of the number of employees it employs; or

• Public or private elementary or secondary school, regardless of the number of employees it employs.

For more information, visit the US Department of Labor Fact Sheet here.

Common FAQs about FMLA

Here is a list of common questions you may have about FMLA and their answers:

What is considered a serious health condition?

The most common serious health conditions that qualify for FMLA leave are:

• conditions requiring an overnight stay in a hospital or other medical care facility;

• conditions that incapacitate you or your family member (for example, unable to work or attend school) for more than three consecutive days and have ongoing medical treatment (either multiple appointments with a health care provider, or a single appointment and follow-up care such as prescription medication);

• chronic conditions that cause occasional periods when you or your family member are incapacitated and require treatment by a health care provider at least twice a year; and

• pregnancy (including prenatal medical appointments, incapacity due to morning sickness, and medically required bed rest).

What and when do employees need to tell their employer if they plan to take FMLA leave?

Employees seeking to use FMLA leave are required to provide 30-day advance notice of the need to take leave when the need is foreseeable and such notice is practicable. If leave is foreseeable less than 30 days in advance, the employee must provide notice as soon as practicable – generally, either the same or next business day. When the need for leave is not foreseeable, the employee must provide notice to the employer as soon as practicable under the facts and circumstances of the particular case. Absent unusual circumstances, employees must comply with the employer’s usual and customary notice and procedural requirements for requesting leave.

Employees must provide sufficient information for an employer to reasonably determine whether the FMLA may apply to the leave request. Depending on the situation, such information may include that the employee is incapacitated due to pregnancy, has been hospitalized overnight, is unable to perform the functions of the job, and/or that the employee or employee’s qualifying family member is under the continuing care of a health care provider.

When an employee seeks leave for a FMLA-qualifying reason for the first time, the employee need not expressly assert FMLA rights or even mention the FMLA. When an employee seeks leave, however, due to a FMLA-qualifying reason for which the employer has previously provided the employee FMLA-protected leave, the employee must specifically reference either the qualifying reason for the leave or the need for FMLA leave.

Are employers required to tell their employees of the existence of FMLA and the employee’s right to take FMLA leave?

Every employer covered by the FMLA is required to post and keep posted on its premises, in conspicuous places where employees are employed, a notice explaining the FMLA’s provisions and providing information concerning the procedures for filing complaints of violations of the FMLA with the Wage and Hour Division. An employer that willfully violates this posting requirement may be subject to a civil money penalty for each separate offense. Additionally, employers must include this general notice in employee handbooks or other written guidance to employees concerning benefits, or, if no such materials exist, must distribute a copy of the notice to each new employee upon hiring.

When an employee requests FMLA leave or the employer acquires knowledge that leave may be for a FMLA purpose, the employer must notify the employee of his or her eligibility to take leave, and inform the employee of his or her rights and responsibilities under the FMLA. When the employer has enough information to determine that leave is being taken for a FMLA-qualifying reason, the employer must notify the employee that the leave is designated and will be counted as FMLA leave.

Does an employer have to provide employees with information regarding their specific rights and responsibilities under the FMLA?

At the same time an employer provides an employee notice of the employee’s eligibility to take FMLA leave, the employer must also notify the employee of the specific expectations and obligations associated with the leave. Among other information included in this notice, the employer must inform the employee whether the employee will be required to provide certification of the FMLA-qualifying reason for leave and the employee’s right to substitute paid leave (including any conditions related to such substitution, and the employee’s entitlement to unpaid FMLA leave if those conditions are not met). If the information included in the notice of rights and responsibilities changes, the employer must inform the employee of such changes within five business days of receipt of the employee’s first notice of the need for FMLA leave subsequent to any change. Employers are expected to responsively answer questions from employees concerning their rights and responsibilities.

How soon after an employee provides notice of the need for leave must an employer notify an employee that the leave will be designated and counted as FMLA leave?

Under the regulations, an employer must notify an employee whether leave will be designated as FMLA leave within five business days of learning that the leave is being taken for a FMLA-qualifying reason, absent extenuating circumstances. The designation notice must also state whether paid leave will be substituted for unpaid FMLA leave and whether the employer will require the employee to provide a fitness-for-duty certification to return to work (unless a handbook or other written document clearly provides that such certification will be required in specific circumstances, in which case the employer may provide oral notice of this requirement). Additionally, if the amount of leave needed is known, an employer must inform an employee of the number of hours, days or weeks that will be counted against the employee’s FMLA leave entitlement in the designation notice. Where it is not possible to provide the number of hours, days, or weeks that will be counted as FMLA leave in the designation notice (e.g., where the leave will be unscheduled), an employer must provide this information upon request by the employee, but no more often than every 30 days and only if leave was taken during that period.

For more answers to frequently asked questions, visit the FMLA Frequently Asked Questions page here.

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