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What If I Don’t Qualify For FMLA

By David Krug David Krug is the CEO & President of Bankovia. He's a lifelong expat who has lived in the Philippines, Mexico, Thailand, and Colombia. When he's not reading about cryptocurrencies, he's researching the latest personal finance software. 8 minute read

The concept of a fair work-life balance appears antiquated in today’s fast-paced, ever-evolving economy, which favors those who can innovate and adapt rather than those who can’t.

Employers in highly competitive fields or those needing large quantities of unskilled or low-skill labor often place a premium on employees’ adaptability and willingness to put in extra effort. Although businesses cannot afford to see employees with advanced degrees or specialized training as replaceable, things change when there are 10 applicants for each open position.

However, several regulations exist to ensure the well-being of workers and to uphold their respect and dignity on the job. Among the most comprehensive and widely utilized is the federal Family and Medical Leave Act (FMLA), which has been in effect since 1993.

What Is the Family and Medical Leave Act?

In order to take care of themselves or their immediate family members, eligible employees can take up to 12 weeks of unpaid leave under the Family and Medical Leave Act (FMLA) in any 12-month period. Among them are the needs associated with giving birth and caring for a baby, adopting a kid, dealing with a major personal health issue, or providing care for a sick member of one’s close family.

The Department of Labor reports that around 65% of employers provide some kind of remuneration to employees who take FMLA absence. The accrual of paid time off (PTO) and other benefits may be suspended while an employee is on leave, but group health insurance provided by their company cannot be. This is an especially essential safeguard for employees who take leave for medical reasons.

However, employers have the right to insist that workers exhaust all other leave options before using their FMLA leave. Employees may benefit from this arrangement since it allows them to continue earning a salary during the absence period.

The FMLA is a statutory amendment to the at-will employment theory, which traditionally has governed the relationship between employers and employees in the United States. This is in line with other pieces of legislation aimed at protecting workers, such as those that outlaw bias based on legally protected characteristics. Both the employer and the employee have the right to terminate the work relationship at any time and for any reason under the terms of an “employment at will” arrangement.

Taking more than 12 weeks out from work is usually grounds for termination in most organizations. However, FMLA-covered employees who take absence for a qualified cause must generally be restored at their old job and pay grade, and with the same benefits and obligations, upon their return. Employees who qualify for FMLA leave are protected against retaliation in the form of termination, demotion, harassment, or any other adverse employment action.

Who is Covered by the Family and Medical Leave Act?

Employers in the public and private sectors with at least 50 workers within a 75-mile radius of the employee’s home are required to comply with the FMLA. Both sole proprietorships and tiny, remote branches of bigger firms are excluded from this rule. It’s possible that some local school boards and government entities will get a pass, too.

Roughly 59% of all American workers are qualified for unpaid leave under the Family and Medical Leave Act, as stated in the Department of Labor’s 2012 FMLA Executive Summary.

However, important employees, who are classified as those who fit the aforementioned criterion and are paid more than 90% of their coworkers within a 75-mile radius, are not fully protected by the FMLA. If rehiring a key employee would result in “serious and severe” financial loss to the company, the FMLA enables the company to opt out of the reinstatement process. This may be the case if the employee were to be rehired at a higher salary and be given more generous benefits.

But under the Family and Medical Leave Act (FMLA), employers are not allowed to prevent essential workers from taking leave. Moreover, if an employer decides not to rehire a returned worker, it must provide compelling evidence for why doing so would result in irreparable harm.

State Statutes Complementary

To further protect workers who require time off for family or medical reasons, some states have enacted unpaid leave legislation that rides shotgun with the FMLA. The best place to find the most recent information on these laws is at your state’s department of labor.

FMLA Leave Eligibility

The Family and Medical Leave Act (FMLA) permits eligible workers to take up to 12 weeks of combined unpaid and/or penalty-free time off work in each 12-month period for the following reasons:

  • Caring for Babies and Mothers During Pregnancy and Delivery. Parents are entitled to paid leave for any medically necessary reasons around birthing, bonding, and care for newborns and babies up to one year of age.
  • Foster care and adoption. As long as the kid is put within a year after the adoption or foster care placement, the parents are responsible for their care and bonding.
  • Quick assistance for a relative or close friend. Insurance for a sick or wounded family member, whether a kid, parent, or spouse, is included. An employee’s “spouse” includes a common-law or same-sex partner, “parent” includes a biological or stepparent, “stepchild,” or an adult who served in loco parentis (as the employee’s legal guardian when the employee was a minor), and “child” includes a biological or stepchild, a foster child, or a child with whom the employee has an in loco parentis relationship (including an adult child incapable of self-care due to disability).
  • Illness or Injury to Oneself. If an employee becomes ill or injured and cannot execute their work obligations, they are entitled to medical leave. This provision, made possible by emergency legislation enacted by Congress in 2020, may include a small portion of federally mandated paid leave for employees to take time off to recuperate from COVID-19 infection or to care for family members who have contracted the virus.
  • Assaults in the home are common. Employees covered by the Family and Medical Leave Act can take up to 12 weeks of unpaid leave to deal with physical injuries or psychological trauma suffered as a consequence of domestic abuse, despite the fact that this is not specifically included as a reason for eligibility under the act.
  • Urgency in the Military. Coverage extends to workers who have a child, parent, or spouse serving in the armed forces. An “exigency” is a circumstance that arises as a direct result of military service, such as an unexpected overseas deployment. Since the employee may not see the servicemember for months, and since certain overseas deployments might be dangerous, FMLA leave would allow the two to spend meaningful time together before the servicemember was shipped out, as well as handle any important logistical difficulties surrounding the deployment.

Employee Obligations

If you’re an eligible employee taking FMLA leave, you have responsibilities before, during, and after your absence.

  • Notifying Appropriately. The employee must offer as much warning as feasible prior to the anticipated absence. Typically, this entails at least 30 days for scheduled medical operations such as delivery and non-emergency surgery. (For birthing, a real due date or a date chosen arbitrarily earlier to the due date is acceptable.) For unanticipated circumstances, such as a major accident affecting an immediate family member or a medical diagnosis needing emergency surgery, employees are required to tell their employers as soon as they become aware of the situation. Oral or written notification is acceptable. Additionally, if feasible, employees must be ready to address follow-up inquiries from the employer, such as the anticipated length of time off.
  • Certification Requirements. Employers may, at their discretion, ask FMLA-eligible employees to provide certification of the cause for their absence, such as a letter from a doctor. Prior to requesting FMLA leave, eligible employees should see a physician.
  • Utilization of PTO. An employer may always require an employee to spend paid time off prior to FMLA leave, even if the cause for the absence is protected under FMLA. Similarly, the employee has the right to request that all available PTO be used for FMLA-qualifying leave, even if the company does not seek or attempts to deny the request. Employees may choose to do this to guarantee that they receive the maximum amount of pay feasible during their time off.
  • Change in Circumstances Notification. After a change in FMLA-qualifying leave conditions, employees may be obliged to provide notification as quickly as feasible. For example, if the employee or an immediate family member recovers quicker than anticipated, or if difficulties delay recovery and necessitate more leave, the employee or family member may be eligible for additional time off. This is not, however, a default obligation; employees only need to comply if their employer requests it.

Obligations of the Employer

Employers are also responsible for fulfilling certain duties under the FMLA. Some of the most prominent are as follows:

  • Displaying the FMLA Notice. Even if there are no eligible employees, all employers must display a formal notice from the Department of Labor stating FMLA rights in a widely visible area, such as a break room or conference room. Employers with several locations are required to publish a minimum of one notice at each site. The DOL may impose a fee per site and per occurrence for noncompliance. This fee is less than $200 and grows annually in tandem with inflation.
  • Including written notification in new-employee materials. Employers must offer written notification of FMLA protections to all new hires. The most popular way to accomplish this is via an employee handbook or new-hire package; but, businesses that don’t typically provide such materials can hand out a page including all the relevant information, or deliver copies of the official DOL notification directly to new recruits.
  • Eligibility Notification. Within five business days following an employee’s request for FMLA leave, the employer must notify the employee orally or in writing of his or her eligibility. The notification must provide at least one legitimate explanation why the employee does not qualify for FMLA if the employer thinks that the employee does not qualify (for instance, not enough hours worked in the past 12 months). Unless the employee’s eligibility changes, the employer is not required to provide a separate notice for each time-off request within the same 12-month period; one notification per year is sufficient.
  • Notice of Rights and Obligations for Employees Approved for Leave. In addition to the eligibility notification, an employer must also issue a notice describing workers’ FMLA-related rights and obligations to every employee who is granted FMLA leave. The notification must detail the employee’s duties and limits, as well as his or her rights to full reinstatement upon return. The DOL suggests utilizing Form WH-381, which offers a detailed summary of this information, for ease.

Bottom Line

Progress has been made in labor legislation and worker safeguards in a comparatively short time. The United States did not have a consistent federal minimum wage until 1938, as stated by the Department of Labor.

Moreover, it wasn’t until the 1960s and 1970s that discrimination on the basis of gender, color, and other protected categories was given any real attention. The Civil Rights Act of 1964 and the Equal Employment Opportunity Act of 1972 provided certain legal protections for formerly disenfranchised employees.

However, laws and the enforcement bodies that uphold them aren’t omniscient or omnipotent. While workers shouldn’t believe they’re expendable, it is on them to familiarize themselves with employment regulations and keep an eye out for infractions. When not enforced, laws remain little more than paper regulations.

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