Employee FMLA Eligibility

There are three criteria that employees must meet in order to be eligible for FMLA job-protected leave:

• Employed by the organization for at least 12 months preceding the leave of absence.
• Worked at least 1,250 hours over the previous 12 months preceding the leave of absence (paid/unpaid time off does not count toward the total hours worked).
• Work at a location where the organization employs 50 or more employees within 75 miles.

Qualifying Reasons for FMLA Leave

• A serious health condition that makes an employee unable to perform the functions of their job.
• The birth of the employee’s child and/or bonding with the newborn child (within one year of birth).
• The placement of a child with the employee for adoption or foster care and/or to bond with the newly placed child (within one year of placement).
• Care for the employee’s child, spouse, or parent with a serious health condition.
  • Child - biological, adopted, foster or step child, legal ward, or child of person standing in loco parentis either under age 18 or age 18 or older and incapable of self-care because of a physical or mental disability.
  • Spouse - husband or wife as defined or recognized in state where married, includes same-sex or common law marriage.
  • Parent - biological, adoptive, step or foster father or mother, any other individual who stood in loco parentis to the employee. Does not include parents “in law”.
• Care for an employee’s family member who is injured or ill due to military service when the employee is the service member’s spouse, parent, child, or next of kin.
• Required leave due to an employee’s family member (spouse, parent, child of any age) serving in the military on covered active duty.

Leave Notice

• Employees seeking job-protected FMLA leave are required to provide 30-day advance notice 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 their supervisor or HRS as soon as practicable considering the facts and circumstances of the particular case.

FMLA Leave Process

There are certain aspects of the FMLA leave process handled by HRS that supervisors aren’t always directly involved with but should be aware of if employees have questions.

Step 1: Upon notice of a qualifying leave reason, HRS reviews records to determine if an employee is eligible for FMLA job-protected leave.

Step 2: Within five business days of learning about a leave situation, HRS will send employees written notification of their FMLA eligibility, rights and responsibilities, and the necessary paperwork for completion.

Step 3: Employees have at least 15 calendar days to return medical certification once provided to them by HRS. A reminder will be sent to employees if paperwork is not received by the requested due date. More time may be provided if necessary.

Step 4: FMLA job-protected leave will be denied if certification is not received after a reasonable time extension is provided. Supervisors will also receive this notice.

Step 5: FMLA approval notices are emailed to employees and supervisors within five business days of receiving complete and sufficient certification.

Step 6: HRS tracks employee FMLA use and timecard coding for accuracy.

Step 7: Employees or their healthcare providers should send medical documentation to HRS directly. Confidentiality of medical information must be maintained.

Step 8: Manage the return to work process and communicate to supervisors regarding return date and restrictions that need to be accommodated upon return.

Recognizing FMLA Situations

As a supervisor, you need to be attentive to whether an employee's absence may be for FMLA qualifying reasons. Employees don't always know about or understand FMLA job-protection so don't rely on them to request it by name. Sometimes an employee will tell you directly that they need time off for medical treatment or other FMLA qualifying reasons. Sometimes you learn indirectly, such as through an extended absence or repeated requests for leave.

Key points to keep in mind:

• If an employee is absent for more than three consecutive business days, contact HRS to review and begin the FMLA process.
• Listen to employees to determine if they provide any information that would indicate the condition or situation could be serious.
• Let HRS know about absences that might qualify for FMLA job-protection or direct the employee to notify HRS as soon as possible.
• If the absence is related to a pregnancy, workers’ compensation, or the employee (or a family member) has been hospitalized, it likely qualifies under the FMLA.
• Employees may be eligible for FMLA job-protected leave for more than one qualifying reason during the calendar year, as long as they have not exhausted their 12 weeks of leave entitlement.
• Know where the FMLA poster is located in your department.
• FMLA leave may be continuous, intermittent, or on a reduced schedule basis as determined by the employee’s healthcare provider.
• Keep the lines of communication between you, the employee, and HRS open.
• Communicate your department’s/division’s call-in policies and procedures to all employees and enforce them consistently.
• When tracking leaves of absence, FMLA leave entitlement is applied concurrently with the use of accrued paid time off.
• UNI policy requires employees to use all appropriate paid time off before taking unpaid FMLA leave.

Supervisor Dos and Don’ts:

• Focus on facts of the leave situation rather than opinions or observations.
• Hold back emotions - you shouldn’t let an employee know you’re unhappy about their FMLA leave request. Instead respond with "Let me know how I can help."
• Remember that the reasons underlying the need for FMLA leave are often sensitive so be mindful of confidentiality. All you should say to an employee’s co-workers is that they are out of the office for a period of time.
• You should not ask about or get involved in the medical issues or diagnoses of the employee but may inquire about anticipated length of their absence or restrictions upon return to work.
• You also should not ask employees for medical documentation or keep those documents on file in your department if employees provide them to you.
• Do not interfere with, restrain, or deny an employee's FMLA rights or retaliate against them for taking FMLA job-protected leave.
• Know that the FMLA statute guarantees that employees will be restored to the same or equivalent position upon returning from an FMLA leave of absence.
  • Exceptions might exist if the employee’s job would have been eliminated if they had been working such as through lay-off, non-renewal, or cause that would otherwise support dismissal. Contact HRS in these cases.
• You may ask an employee on leave for periodic updates on their status and intent to return to work but you may not require employees on FMLA leave to perform their job responsibilities.
• Document everything, including performance issues or strange leave patterns that could indicate FMLA abuse. Bring concerns to HRS as soon as possible.

Intermittent Leave Challenges

FMLA is not always long-term. A few separate absences with a recurring issue may qualify as intermittent FMLA so you should consult with HRS in these instances. If an employee’s situation qualifies and is approved for FMLA job-protection, HRS will inform you of the timing and frequency of intermittent absences as estimated by the healthcare provider.

Keep in mind that chronic serious health conditions (i.e. diabetes, asthma, migraines, mental health conditions) often require ongoing treatment or visits to a healthcare provider. You must permit employees to take intermittent FMLA leave once approved by HRS. To make staffing and timekeeping easier, you may work with the employee to schedule their planned FMLA-related absences (such as for treatment or appointments) ahead of time when possible and appropriate.

Intermittent absences caused by exacerbation of the health condition are often unexpected and employees often cannot give advance notice regarding the need to be absent from work. You should require employees approved for intermittent FMLA leave to follow call-in procedures as normal but you cannot deny the application of FMLA coverage to their absence.

If you suspect abuse of intermittent leave or if the employee’s absences consistently exceed the frequency estimated by the healthcare provider, contact HRS.

Catastrophic Leave

Let employees know about the Catastrophic Leave Program if they have depleted or will deplete their paid time off balances before their need for leave is over. Chronic health conditions that cause intermittent absences may also qualify for the catastrophic leave program. The eligibility requirements for this program differ from FMLA eligibility; however, if an employee’s situation qualifies, the program can help reduce the financial stress of an unpaid absence from work for medical reasons.

Returning to Work

An employee should not return to work without the proper medical certification and release from their treating physician.

We cannot require an employee to be 100% healed (i.e. no restrictions) before allowing them to return to work.

If the employee presents a certification that they can return to work with restrictions, the healthcare provider must identify specific information for us to determine if we can accommodate (i.e. cannot lift anything over 10 pounds, no sitting for long periods of time).

You must work with HRS when providing accommodations for any employee returning with restrictions.

Obligations Beyond FMLA

The 12 weeks of FMLA does not end an employer’s obligations to provide additional leave or accommodations. Sometimes an employee will not be able to return to full duty at the end of their leave; or they may ask for workplace accommodations other than leave; or they may request workplace accommodation in addition to leave of absence.

There are also situations when an employee who needs leave may not be eligible for FMLA leave or may have already exhausted their FMLA leave entitlement for the calendar year. In all of these circumstances, Human Resource Services along with supervisors must:

• Evaluate each request for additional time off beyond the 12 weeks of FMLA.
• Evaluate work restrictions for accommodation by discussing the details of the restrictions with the employee in relation to their job duties.
• Leave and reduced/modified schedules must be explored as reasonable accommodations.
• Employers must engage in the interactive process and make a reasonable accommodation to the known disability of a qualified employee if it would not impose “undue hardship” on the operation of business.

FMLA can be confusing, but the information above should give you a starting point for understanding FMLA and helping your employees through the process.

Resources

Learning Opportunity: FMLA & ADA Supervisor Responsibilities
The Family & Medical Leave Act
UNI Policy 4.49 FMLA Leave
FMLA Employer Guide
DOL FMLA FAQ
FMLA Employee Protections

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