12 Days of HR: I’ll Be Home for Christmas—Because of Leave Under the FMLA

Employees often take time off around the holidays. In many cases, an employee’s days off might be pursuant to a planned vacation or time with loved ones. However, an employee might request leave for a situation that would entitle them to leave pursuant to the federal Family and Medical Leave Act. If you find yourself facing a request for leave pursuant to the FMLA, here are some quick refreshers on the basics of the FMLA that will help you be prepared to handle the request swiftly and appropriately.

First, know in advance whether your company is covered by the FMLA. Generally speaking, a private-sector employer is covered if it employs 50 or more employees in 20 or more workweeks in the current or previous calendar year. Accordingly, if your company has had any growth or other shifts in staffing, you may now be covered or no longer be covered. Bear in mind, however that state FMLA policies might still apply. For example, in Maine, state leave policies apply to employers with only 15 or more employees.

Next, consider the employee’s qualification for FMLA based on their employment status. An eligible employee is one who:

1. Works for a covered employer,
2. Has worked for the employer for at least 12 months as of the date the FMLA leave is to start,
3. Has at least 1,250 hours of service for the employer during the 12-month period immediately before the date of the FMLA leave is to start, and
4. Works at a location where the employer employees within 75 miles of that worksite as of the date when the employee gives notice of the need for leave.

Although part-time and seasonal work will count towards the 12-month employment requirement (and toward your employee count), true seasonal hires will often not qualify for the FMLA protection due to a failure to meet the hours required by the guidelines.

After you have complied with your notice obligations, you will need to consider the basis for the employee’s request for leave. FMLA leave is available in the following discrete circumstances.

• The birth of a child and to bond with the newborn child within one year of birth,
• The placement with the employee of a child for adoption or foster care and to bond with the newly placed child within one year of placement,
• A serious health condition that makes the employee unable to perform the functions of his or her job, including incapacity due to pregnancy and for prenatal medical care,
• To care for the employee’s spouse, son, daughter, or parent who has a serious health condition, including incapacity due to pregnancy and for prenatal medical care;
• Any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a military member on covered active duty or call to covered active duty status.

Depending on the circumstances, you may require that an employee a certification to support the request for FMLA leave. These forms are available on the Department of Labor website. Once a decision is made, following the FMLA’s timelines and protocol to let the employee know the status of whether the leave was approved or not approved. Generally, an employer has five business days to provide the employee with a written Designation Notice or with written notification that the leave is not FMLA-protected.

Although specifics on scheduling leave and employer/employee responsibilities during leave are beyond the scope of this note, keep in mind that the employee must generally be restored to the same job that the employee had before going on leave or to an “equivalent job,” which would be a position that is very similar in terms of pay, benefits, and terms of employment. Finally, particularly if an employee was out of work due to a personal medical issue, consider whether he or she needs a reasonable accommodations for a disability upon return. Even if your organization handles the FMLA process flawlessly, there could still be liability for discrimination pursuant to the ADA or anti-discrimination laws in your state.

The attorneys in Verrill Dana’s Labor and Employment Practice Group are available to help if you need guidance on navigation FMLA leave.