Teaching Tuesdays: A Lesson in FMLA with Hilary Bancroft

Hello All -

Welcome to my first Teaching Tuesday!  Today I’ll be getting a lesson in FMLA from Hilary Bancroft.  I’m very excited Hilary volunteered to be my first guest teacher.  She really knows her stuff.  On to the lesson!

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This is what I know (or what I think I know) so far –  Hilary’s changes/additions will be in BLUE so you all can see where I was weak and need more study.  I’m not ashamed.  That’s the whole purpose of this blog – learning together!

Employers are only required to provide FMLA if they have 50 or more employees working within a 75 mile radius of their office.  Very small companies do not have to comply because it would cause a hardship.

Employees are considered eligible for FMLA once they have been with their employer for one full year, provided they have worked at least 1250 hours during that year.

An eligible employee can receive FMLA due to: a serious illness or injury of their own, a serious illness or injury to a spouse, parent or child that requires them to be a caregiver, to receive proper pre-natal care if something like bed rest is required, after the birth of a child, or after the employee takes a child into their home through foster care or adoption.

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Most conditions have to be signed off by a doctor to determine if they are serious enough to warrant taking leave.  Other than pregnancy or adoption, an employee cannot “choose” how much time they want off.  They can only have as much as the doctor recommends.  For example, after my neck surgery a while back, the doctor recommended 4 weeks off.  I could not have decided to take more in order to have a long vacation and call it FMLA, right?  

Often companies have a specialized medical certification they have the doctor complete and the doctor has to specify clearly how much time is needed, the reason for the time, and the expected duration of the condition. Often within my organization we will only do a 6 month approval maximum even if it is a permanent condition as the condition can often change and this allows us to get updated medical information on a regular basis from the doctor. The law does not specify how frequently information can be requested from the doctor on the condition, but I’ve usually heard the minimum approval should be for a month unless the doctor specifies it is a two week condition.

Once an employee is determined to be eligible for FMLA, they can take up to 12 weeks of unpaid leave and still be entitled to all their benefits during this time.  At the end of their FMLA, they are guaranteed their old job back or a similar one with the same pay and benefits.  Their benefits are not free while they are out; the employer can recoup the cost of various premiums when the employee returns to work or they can pay separately while they are out.

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Leave is extended up to 26 weeks if caring for a military service member who was injured on active duty, I think.  I have never encountered this situation AT ALL so I’m REALLY unfamiliar here.

Military leave has a lot of different requirements and can even be extended to include things like military services, time to spend with the member in the military while they are on a leave for a week or two, etc.

For most FMLA purposes, caring for a son or daughter means a minor child under the age of 18.  FMLA is given to adult children if they are disabled and unable to provide self-care. Because of technicalities in this arena, I think most people would want to consult an employment attorney to be sure they are complying legally.

With my company in particular, we did extend FML to apply to a household member so employees whose child still lives with them at home are also covered under FML. This is at the discretion of the company.

A few questions I have:

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Does the law specify about paternity leave?  Can a man use FMLA after his wife has a baby or if they adopt – or does the law specify that it’s only available to a woman after she gives birth?

The law does make it clear that both fathers and mothers have the same rights under FML to take unpaid leave to bond with the baby. The leave must be taken within 1 year of the birth of the baby (so hypothetically a mother could take the first 12 weeks off and then the father could take the next 12 weeks off or they could take it together). It is also offered in the circumstances of adoption to both adopted parents. It must be taken within 1 year of the adoption date of the child.  This type of leave can be taken on a continuous or reduced leave basis, if the reduced leave is approved by the employer. For example, an employee could take the 12 weeks by taking Mondays and Fridays off for 30 weeks or taking Tuesdays and Thursdays off for 30 weeks. This is subject to approval by the employer. The only guaranteed approved leave is if it is taken continuously. Leave for bonding with a child cannot be taken intermittently, it must be a set schedule.

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Is it the responsibility of the employer to OFFER FMLA or is it the responsibility of the employee to ask?  I know most people are presented with this info upon their orientation as a new hire and beyond that, HR can’t read minds.  HR can’t know if an employee’s parent has developed Alzheimer’s unless the employee brings that to their attention, yes?

If an employee specifies to their employer that they have a serious health condition that they need to take time for, it is the employer’s responsibility to advise them of the FML benefit. If the employee does not mention a medical condition, the need to care for someone with a serious health condition, or express the need to take time off for these things, the employer cannot know that they should offer FML to them. We also offer information regarding Family Medical Leave and how to apply in our Employee Handbook to ensure that all employees have access to the information if they seek it out as well. We also typically recommend that if the employee mentions anything medically related, that the manager encourage them to have a conversation with HR and advise the employee they do not have to provide any information to management regarding their condition.

At least in the state of Louisiana, FMLA differs from pregnancy leave.  Pregnancy leave is available immediately upon hire and can last for up to 16 weeks/4 months.  Is this the law everywhere?

This is not the law everywhere; there are many different FML laws in various states. For example, California has paid disability leave as well as CA specific family medical leave. Oregon has similar laws. You should always check with your state government website to see if your state does have state-specific requirements that are more strict than the federal policy.

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Anything else important that I should know?

I can’t think of anything, but with FML there’s more that I learn every day and new litigation taking place that changes the requirements! When in doubt, if you’re denying an FML condition, I would recommend consulting with your company’s lawyer just to be safe.  

Thank you so much, Hilary, for all this wonderful information and for taking the time to chat with me!  I really appreciate it!  My first guest teacher, everyone!

Hilary

Hilary Bancroft graduated from Providence College.  She majored in Marketing and minored in Finance. She started in an HR Development Program at a Fortune 100 company in 2010 as a way to get her foot in the door and ended up loving it. She spent her first year learning most of the HR basics such as Worker’s Compensation, termination, new hire orientations, and her “best friend”, Family Medical Leave. She lives and works in Boston and is always looking for new connections in the HR world to hear about best/different HR practices.  She can be reached on Twitter at @HRHilary or her LinkedIn Profile at http://ow.ly/hD5PZ.  She prefers cake to pie and is not at all adventurous when it comes to pizza toppings.  Hilary is currently buried beneath two and a half feet of snow but assures me she’s fine and drinking lots of cocoa. 

Ok gang – did we miss anything?  Get anything wrong?  Let us know in the comments!

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