The Family and Medical Leave Act (FMLA) was signed into law by then-President Bill Clinton on February 5, 1993. In honor of the law's 30^th anniversary, President Joe Biden hosted President Clinton at an event at the White House. The two remarked on the history of the law, and what the future may hold in terms of expanding protections for workers.

However, even 30 years and an estimated 400+ million uses later, many employers still struggle to understand their obligations under the law. It may be helpful to keep in mind that the FMLA is intended to protect workers from negative employment actions due to their need to take time away from work under certain circumstances.

Below are four initial questions to get started in checking your compliance.

1. Do you know whether you, as an employer, are covered?
   Before an employee even needs to use FMLA, employers should know whether they are covered by the FMLA. The FMLA covers employers with 50 or more employees (including part-time and temporary employees) in 20 or more workweeks in the current or previous calendar year.
   
   
2. Are your managers and supervisors trained to identify an FMLA request?
   If the employer is covered, managers and supervisors must be trained on how to identify when an employee may be indicating a need for FMLA leave, even if the employee may not realize it. Once the manager or supervisor has enough information to be on notice of the potential need for FMLA leave, the employer is on the hook.
   
   
3. Do you know which employees are eligible?
   If an employee of a covered employer needs leave for qualifying reasons under the FMLA, the next step is to determine if the employee is eligible for leave under the FMLA. An employee of a covered employer will be eligible if the following conditions are met:
   • they have worked for their employer at least 12 months,
   • they have worked at least 1,250 hours over the past 12 months, and
   • they work at a location where the company employs 50 or more employees within 75 miles.
4. Do you know what notices to give, and when to give them?
   Notice of Eligibility - Within five business days of the initial request for leave or when the employer acquires knowledge that an employee leave may be for an FMLA-qualifying reason.
   Rights & Responsibilities - Within five business days of the initial request for leave or when the employer acquires knowledge that an employee leave may be for an FMLA-qualifying reason.
   Designation - Within five business days of having enough information to determine whether the leave is FMLA-qualifying

Other Common Pitfalls

• Expecting magic words – Employees do not need to specifically ask for “FMLA leave.” Covered employers are required to provide notice of eligibility once they become aware that an employee’s leave may be for an FMLA-qualifying reason. For example, after something as simple as employee being out for a week after visiting a doctor and mentioning prescribed medication.
• Requiring written proof – Employers are not required to obtain written proof (e.g., a doctor’s certification) before approving an employee’s FMLA-covered leave. As long as the employer has enough information to determine the leave is FMLA-qualifying, employers may (and in some cases should) designate the leave as such. Employers should follow their internal policies and past practices to ensure consistency.
• Counting the employee’s FMLA-covered leave against them – This often occurs in the context of performance evaluations and attendance policies. Employers may need to prorate or adjust expectations in light of the employee’s FMLA-covered leave.
• Not having a written policy and procedure – Having a documented policy and procedure can provide guidance to employees and their supervisors when the need for FMLA leave arises. It can also help ensure consistency in the administration and clarify the rights and responsibilities of employees and the employer. For example, the written policy should define the 12-month period in which employees' leave entitlement is counted.

The U.S. Department of Labor has published an employer guide and numerous fact sheets to help employers understand how to comply with the FMLA. HEC members may also view our resources on the FMLA, or call their HR Consultant with questions or to discuss specific situations.