“If you don’t think FMLA applies to you, but it does, you’re going to be committing violation after violation.”

In episode #92 of Mission to Grow, the Asure podcast that serves as small business owners’ guide to cash, compliance and the War for Talent, Principal at Jackson Lewis PC, Brian Shenker, joins host Mike Vannoy to  demystify the FMLA. The Family Medical Leave Act is an important piece of legislation that provides employees of certain businesses with protections in the case of a medical leave. We’ll discuss how to understand the nuances of the FMLA that will help your business stay compliant.

  • The FMLA states that qualifying employees are allowed to take up to 12 weeks of unpaid job protected leave to care for themselves or a family member. When they return, they must be returned to the same job.
  • While the FMLA is a semi recent job law, it was built upon the progress of other laws including the ADA. Prior to the law, employees were often forced to quit their jobs just to care for a family member.
  • While compliance with the FMLA is necessary, it isn’t the end all be all of leave. Much like states can have higher minimum wages compared to the FLSA, leave can vary by location. Understanding local laws will help you stay compliant.
  • For an employee to take advantage of the FMLA, there are a few requirements they need to meet. Employees must have been employed with the company for at least 12 months. These months don’t need to be consecutive, and are counted up until the leave.
  • The FMLA has certain exceptions that make it non applicable to small businesses. To follow the FMLA, businesses must have at least 50 employees who are within a 75 mile radius.
  • To take unpaid protected leave, employees must either be dealing with their own medical issue, or providing care for a parent, spouse, or child. Cousins, siblings, and other family members are not part of the umbrella of people an employee can take leave for.
  • While FMLA abuse does exist, it’s best for employers to err on the side of caution. By playing the role of “doctor” or “lawyer” and trying to determine if an employee’s case is eligible, you run the risk of legal ramifications.
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Read the Transcript:

Brian: this is one of those threshold issues that, you know, it’s worthwhile to make that determination and get the advice, because if you don’t think FMLA applies to you, but it does. You’re going to be committing violation after violation until someone, you know. Makes a complaint to the DOL or files a lawsuit.

So, better to know what, you know, what you have to deal with now than, you know, risk that type of exposure.

Mike: FMLA, what every business needs to know about the Family Medical Leave Act. Hi, I’m Mike Vanoy, your host of Mission to Grow, and I got a great guest today to unpack this pretty technical, legalistic topic. My guest has extensive experience defending class and collective action lawsuits against federal and state wage and hour laws.

His practice focuses on representing employers in a wide range of workplace matters, as well as preventative advice and counseling. He has successfully defended wage and hour audits conducted by the U. S. and New York State Departments of Labor. And he regularly handles cases before courts and administrative agencies involving claims of discrimination, sexual harassment, and retaliation.

Please welcome back to the show, Brian Schenker, Principal at Jackson Lewis. Welcome, Brian.

Brian: Thank you, Mike.

Mike: So, let’s start out. Uh, not everybody knows what FMLA is. If you’re at a bigger company, you probably do. Uh, let’s first start, just start out what, what is the definition of FMLA, the Family Medical Leave Act, and maybe a little bit of how it came to be.

Brian: Yeah. Uh, so the FMLA is one of the, uh, the newer federal statutes. It was only passed, uh, back in 1993. Uh, and so real high level, the FMLA allows qualified employees to take up to 12 weeks of unpaid job protected leave, each year for either their own medical reasons. or to care for a sick family member, as well as some other reasons.

Uh, and once that period ends, uh, the leave period ends, the employee must be returned to the same job. as he or she previously held or a virtually identical position. Uh, and so really, you know, back when this was passed, uh, you know, Bill Clinton was, was president. And, you know, the idea was that, you know, when workers are not given leave to deal with these important issues, uh, that then kind of everyone else bears the cost, right, because these people either.

leave their job or, you know, take other measures. And so, um, it’s one of those statutes that is used quite a lot. I think that back in 2018, there was a survey that said, roughly 15 percent of employees had taken FMLA leave in the prior 12 months. Um, so that’s a real indicator that this is something that’s utilized by employees and is something that employers certainly need to know, uh, how to, how to handle requests and uh, you know, how do they go from, you know, the, the notice that there might be a need for leave to all the way to returning them back to their position.

Mike: So, uh, we’ll talk about kind of all, what I’ll call the spin offs of, of, of FMLA at the state and local level in a bit. But what is it that growing companies really need to understand about FMLA, because it’s, it’s, this doesn’t apply to all companies. It’s really. Small emerging companies that are going to hit a certain threshold here.

Brian: Right, exactly. So, uh, you know, we can discuss that in a moment, but generally 50 employees within a 75 mile radius of the work site, uh, will trigger employer coverage. Um, but, you know, look, I, I think that, as you mentioned, there are lots of steps involved in the FMLA process where employee, employers can get tripped up.

So, uh, will Uh, but, you know, I think one thing I would convey to, uh, you know, employers that may be, you know, either on the precipice of, uh, you know, being subject to this, uh, law or, you know, some that, you know, recently have been is that it. FMLA leave is not as complicated as many people, you know, might say it is.

Now, obviously there are complexities, there are nuances, uh, but really, you know, some proactive steps by an employer to get the right notices in place, get the right policy in place. And then you’re really just following your steps every time. Uh, and so I think this can be made a bit straightforward.

Obviously, I think that’s our goal today, to unpack this in a very straightforward way for companies. Um, but I think many of the, uh, uh, the mess ups, so to say, that I typically see from employers, are easily preventable. Uh, you know, if they had policies, if they had, you know, done a little bit of investment in the, you know, proactive, uh, compliance, most FMLA violations can be avoided.

Mike: So first to start out, uh, and it varies the different permeations this takes at the state level, but it is a federal law, a singular federal law. Uh, in the, in the, in the cutoff point here is 50 employees. So, um, a lot of smaller companies that this doesn’t apply to you yet, but, uh, as the name of the show, Mission to Grow implies, you’re trying to provide HR information, Uh, HR compliance information for growing firms.

So, aspiring to break that 50 employee mark. Can you maybe talk about, so, so let’s back up 75 mile radius. I think we need to talk about, uh, what is a full time equivalent? And there’s, there’s some parameters there. Just maybe back up, what was the intent of the law? Where were we in 1993 that really drove it to, to, to this place?

Brian: Yeah, so I think what really, you know, was happening was that, you know, employees You know, prior to FMLA, there, there was no unpaid leave for serious issues, right? Either the employee, you know, if the employee themselves got injured or had some medical condition, of course, there’s the Americans with Disabilities Act.

But what about if, you know, someone’s spouse, uh, has a serious medical condition and, uh, the employee needs to provide care for them or, or care for a newborn child? Uh, there is nothing on the books that, uh, really allowed employees to take any leave for those types of things. And that became a problem because You know, it left employees with a real tough decision to make, uh, you know, when they had to take those leaves.

It was, you know, do I stay at my job and not able to offer help to, you know, those who may need it or, you know, or whatnot, or do I quit my job and, you know, go do that? And now that has an impact on the employer too, right? It’s not just an impact on the employee. Now they don’t have a job. The employer now needs to go find someone.

So, you know, You know, in light of those types of issues, uh, that, that’s kind of how the FMLA came about. Um, and, you know, it’s, uh, you know, I, I think that, you know, you’ve talked about, you know, state laws and such, and, you know, we’ve kind of seen a, um, an evolution, I guess you could say, right? So, you know, Roughly 30 years ago, FMLA comes about, and as we said, this is job protected leave, but it’s unpaid, right?

And so,

Mike: really key. And I want to hit on one thing before we start going to the end of the evolution. Maybe, Ryan, I’d say, if you think about the continuum of federal HR laws, going back to the Fair Labor Standards Act, you know, 1938, and then, uh, Uh, Equal Pay and Civil Rights Act of X of the 60s to then, uh, Safe Work Environment, OSHA of the 70s, Americans with Disabilities, early 90s.

And here, here comes FMLA, early 90s. The idea was, how do we, how do we continue to give more protection, more services to employees? So, very slowly, the, to evolve. The continuum of power shifting from employer to employee and more protections for employees. But this wasn’t meant to punish small businesses.

Right. Um, and it wasn’t meant to be paid. It was really a job protection for, uh, just what you said. You know, you get a sick child, you get an elderly parent, you have whatever, and we’ll talk about the qualifying, uh, events, whatever your qualifying event is, you may not get paid for it, but you’re, you are at least protected to not lose your job.

I’m saying that right. Right. Yeah. Okay. Um, and so. From there, we start to evolve into different permeations at the state levels where sometimes this is now morphing into, I know it’s morphing into paid leave in some cases, uh, does the, does the rule of 50 employees also change state by state?

Brian: Yeah, so I think what we see in the states is that, you know, various states, you know, in the past, right, implemented, uh, some similar, you know, unpaid leave laws. And then now in the last, I don’t know, say five years or maybe even less than that, Mike, right? We’ve seen a lot of these, uh, paid leave laws, which I think are really the next evolution from FMLA and, you know, FMLA really set the stage for that, right?

Uh, you know, there has been discussion, uh, some proposals at the federal level. Uh, about, you know, some paid aspect to FMLA. We haven’t seen that come about yet. And, you know, I don’t want to, uh, frighten any of our viewers that it’s, you know, on, you know, coming down the pike right now. Uh, it really, it may not because really we’ve seen states and localities, you know, fill that gap where they’ve seen.

All right, great. Employees do need these, uh, Uh, this type of leave, but now we want to compensate them at some level for that. Um, you know, and so state laws and local laws have, have filled that gap, but, um, you know, those laws also tend to apply to smaller employers as well. Uh, so, you know, I, I think it’s, it’s key to understand for employers that look, simply because you might not have 50 employees Does not mean the idea of medical leave for your workers should be some foreign concept, right?

I mean, some states that may be, but

Mike: And ironically, that’s why I kind of wanted to like take that on the, at the top of the conversation here, because to be clear, we’re going to unpack the details of FMLA, the singular law, Family Medical Leave Act, federal law, under 50 employees, uh, and it’s unpaid. But it’s important for employers to understand the continuum here, right?

Um, between, between the, the, the labor shortage and the supply and demand of labor and just this, I’ll call it going on an 80, 90 year trend of, Laws on the books that increasingly give protections and services to employees and put a bigger burden on employers. you got to comply with FMLA, but you need to understand the, the, the bigger story, what’s really unfolding here.

And as you, as you plan and you create budgets and you build a strategy to, to, to build a great team. Um, this is, this is something that’s part of the fabric of our culture that is, this is a sea change that is happening, right? It’s not just the federal laws. Uh, this is, this is moving down market into smaller firms.

It is turning from unpaid into paid in some cases. Um, but, but, but that’s the, that’s the, that’s the sea change that’s happening here, right?

Brian: Yeah, exactly. And so, um, you know, obviously from a compliance standpoint, you first, uh, you you need to comply with, the most restrictive of laws, right? uh, I think a good parallel to this would be, the US Department of Labor oversees both the FMLA and the Fair Labor Standards Act, I think that’s a good parallel to draw, right?

Where we always say that. The FLSA sets the floor for, say, minimum wage, right? But states can go, above that and, impose a 15 minimum wage, right? Just like here, the FMLA sets the floor, right? But if you’re in a jurisdiction with something that requires more, You will need to comply with both laws.

And so, you know, that is where, you know, things can get a little, uh, tricky from time to time when, when you’re dealing with, you know, multiple leave laws. And I think we’ll discuss a little of that today. There’s certainly, um. You know, some overlap and interaction between the FMLA and. Uh, the Americans with Disabilities Act, the ADA, um, but yeah, you know, employers should be on the lookout for their state laws that, that might require something more.

Mike: All right. So, so we know it. So the FMLA is a law of the past in 93. We talked about the continuum, the sea change of, uh, more, uh, the HR laws continue to go on the books, leaning, putting more burden on employers, giving more services, freedoms, uh, uh, whatever you want, how you ever want to describe it to employees.

Let’s kind of step it back and just talk FMLA. So. Let’s unpack this. You said it’s simpler than people realize. Take us through the, the, the, the, the legal components here. Whom, what businesses must comply? What are the rules that they have to follow?

Brian: Great. So yeah, let’s dive right in, right? So, for employers, uh, you know, you need to decide, figure out as a threshold matter, does this statute apply to me? So, really, if, if a company has employed 50 employees or more in the current year or the preceding year, that essentially means that you’re covered right now by the FMLA.

You know, basically, The exact requirement is that the company needs to have at least 50 employees for 20 or more calendar weeks in a year in order to be covered. So if that occurs either in the current year or the previous year. You’re in. Uh, and employees, you know, this isn’t, um, as complicated say as, uh, um, you know, uh, some other statutes and how we count people.

Um, we’re counting all, part time and full time employees, uh, who are within, you know, that, uh, 75 miles. of a worksite, the 75 mile radius of that worksite. So again, if, you’re a company with, 25 employees at one worksite and 25 at another, you know, the, the factor that’s going to determine whether you’re subject to this law is what’s the distance between those two worksites.

It’s more

Mike: So Brian, I don’t, all these years, I don’t think I, I don’t, I’d forgotten that component. So could I be, could I be a firm that has 49 employees, hundred locations, but they’re all more than 75 miles apart? That means I am not compelled by FMLA,

Brian: Yeah. There, there is, unlike many of the other statutes, there is this geographical requirement. Yeah.

Mike: which makes sense because if you think about the reason they drew the line, would it’s, it’s, it’s an undue burden to put on a small business owner, right? So if you’re, if you’re a single location business, forget if you’re brick and mortar retailer, your business services, whatever your business is. If you’ve only got 10 employees. If one of your people leave for six months, it might be for a totally valid reason and you love them and you care for them and you support the reason that they had to take leave. You still have a business to run and you can’t just not go without backfilling that person that basically the law says, Hey, we understand small businesses.

You don’t have enough people to account for, but if you have more than 50 people, I guess at a location, uh, if you have fewer than 50 people, it’s like, okay. You might have, you might be a bigger firm in locations all around, but it’s unreasonable for people to drive more than 75 miles to offset the temporary absence of that one person.

Am I, am I thinking about that right?

Brian: Yeah, I think that’s, you know, part of, part of that reason, right? Because a lot of this is going to require, you know, uh, replacement employees or, you know, cross training employees to handle someone else’s duties or, you know, bring on someone else. So, yeah, I think the idea was we’re only going to apply this to employers that are deemed large enough to deal with those issues.

Mike: And, um, is it, it’s W 2 true employees, this is not 1099 freelancers or contractors, right?

Brian: Right. I mean, provided those classifications are correct, right? If you have misclassified employees, that could, that could be an issue.

Mike: And we have a bunch of podcasts on exactly that topic. So the proper, proper classification according to FLSA is, is the first step. Um, how about full time equivalency? Do, do these 50 employees need to be passed any full time equivalency test?

Brian: So there’s no equivalency test here. It’s, you know, you count, uh, full time employees, part time employees, the same. And, you know, if you get to, uh, you know, 50, I mean, really the, the, the easy way to do it is look at payroll, right? If in any month you have over, or any week, rather you have over 50 people that are.

You know, receiving, uh, you know, pay or otherwise on payroll, then that’s going to get you over the hump. Now you have to be above that for, you know, 20 weeks, not consecutive. It could be any 20 weeks, uh, in that year, but, uh, but yeah, we’re, we’re going to count basically, you know, all our employees the same, uh, with respect to this one.

Mike: So this is something I think, uh, sometimes people will kind of accidentally co mingle laws. Family Medical Leave Act and the Affordable Care Act, ACA. Both have 50 employees, but it’s different. So, and we’re not going to do an Affordable Care Act and ACA lesson here, but also a trigger of 50 employees. But there’s a full time equivalency there for family medical leave.

This is not 50 full timers. This is 50 people that you have on the payroll, even if they’re part time staff, correct?

Brian: Correct.

Mike: Really, really, really important.

Brian: Yeah, and I think one other issue for, uh, companies to look out for is that like many of the statutes, uh, there are joint employer, uh, issues, right? So, even if your business is under 50, you may be deemed to be a joint employer with another company and then aggregated The two companies hit that 50.

So, uh, you know, that we, that’s a whole nother deep dive, but really what it often comes down to is, you know, does your company or does another company, you know, have control over a different company’s employees?

Mike: That’s probably an edge case. We don’t need to go too deep down that rabbit hole, but is it, is it fair to say So this is, this is entity aggregation. So maybe I have, maybe I have three dry cleaners all in town, less than five, five and 10 miles apart. Um, but for tax reasons, liability reasons, I have all three of those set up as their own LLC.

Um, so three separate legal entities, but me as a single owner of those, I would, the, the law would say I aggregate those as, as one, correct?

Brian: very likely that even though it’s different, you know, corporate entities, it’ll all be considered one employer. Yeah.

Mike: Is it also safe to say, and maybe that, maybe I’m going on a limb here, but if it’s a completely different line of business, like maybe it, maybe I own some, uh, some, some dry cleaners, but I also own a, a, a construction company in town. Those employees, you know, they’re, they’re not cross trained to do each other’s job if it’s, but I’m still a common owner.

Does, does the, does the same 50 rule, 50 employee aggregation rule apply there?

Brian: So it would be much less likely that those would be considered joint employers. Uh, you know, obviously when they’re in different lines of business, we would imagine there’s going to be less control of one company over another company’s workers because they’re doing something different. Um, we would, we would probably not see employees being transferred between those companies because again, they’re doing something different.

So, yeah, most likely in that scenario, uh, you’re, you’re looking at, you know, uh, separate companies that are not going to be aggregated.

Mike: If you’re an entrepreneur, you’re a business owner, you’re watching today, you’re listening today, and you’ve got a dry cleaning business, you’ve got hair salons, you’ve got a small construction business, and you’ve got a real estate property business, you’re, an entrepreneur, you got a bunch of different irons in the fire, like many people do, um, if they’re really discreet lines of business. LLC entity structure almost doesn’t matter. You’re still the, single owner. If there are separate legal structures and separate lines of business that don’t commingle employees, you’re probably safe, but if you get too big and you ever have any crossover of any employees, you should probably be getting a legal opinion here, right?

Brian: Yeah, certainly, because look, this is one of those threshold issues that, you know, it’s worthwhile to make that determination and get the advice, because if you don’t think FMLA applies to you, but it does. You’re going to be committing violation after violation until someone, you know. Makes a complaint to the DOL or files a lawsuit.

So, better to know what, you know, what you have to deal with now than, you know, risk that type of exposure.

Mike: And it’s maybe not the majority of people watch or listening today, but there are, there’s plenty of entrepreneurs with, you know, completely different lines of business. And I could imagine this scenario. I’ve got one. One maintenance guy from this, you know, maybe the businesses are completely separate, but for one person who is maintenance oriented, they’re handy.

Oh, I’ll just go over here and have them fix the plumbing issue in this other business. Now, you’ve co bangled employees, you may be opening yourself up. I would, I would really emphasize for folks, if that’s you, get a legal opinion whether you, uh, must comply with FMLA or not. Okay. Um, anything else on what companies must comply?

So it’s 50 employees, it’s W2s, it’s not freelancers, it’s not 1099 folks. Um, it doesn’t matter full time, part time, as long as they’re within a 75 mile radius, that’s it. You must comply, right?

Brian: Yep. Yep. So that’s really it. It’s pretty simple on the employer side to make that determination.

Mike: now on the employee side, what are, there are criteria that must be met for an employee to then take FMLA, right?

Brian: Sure. Yep. So there are a couple, requirements for the employee to be eligible. Uh, the first one is that the employee needs to have been employed by the company for at least 12 months. Uh, the months of service are determined. Uh, when the leave is scheduled to begin, not when the request is made. Uh, that’s measured from the first day of work up through the day the leave is supposed to begin.

it need not be consecutive 12 months, right? There could be, some gaps in there, but we’re talking about 12, uh, working months, so essentially if an employee is on payroll for, you know, any part of a week, um, Then they’re essentially counted for that entire week as being employed by the company.

Mike: Okay.

Brian: So that’s the first requirement, 12 months. Then in addition to that, the employee needs to have worked 1, 250 hours in the last 12 months. So, again, we’re talking about, uh, compensable hours, right? So, uh, you know, you heard me reference the FLSA earlier, and I’ll do it again here because, you know, The FMLA and FLSA have some things in common.

There are some similar definitions and so what we’re looking at is 1, 250 hours of compensable work time. So, you know, leave would not, other types of leave or PTO would not necessarily be included in that. It’s actual compensable work time, so that’s, yeah. Very simple. You can look at payroll. Now, that’s easy enough for a non exempt employee, right?

Someone who’s being paid an hourly rate. Um, but look, we also have exempt individuals, uh, who will request FMLA leave. And how do we determine that, right? Because we’re not tracking salaried workers hours, typically. Um, So basically the basic idea here is if you have an exempt employee who’s worked for your company for the last 12 months, the presumption under the law is that they meet the 1, 250 hours.

Um, and so again, you know, the problem in our, for employer arguing that an exempt employee does not meet the 1, 250 hours, is that they won’t have time records. So that’s why the employer will not typically make that dispute as to employee eligibility for a salaried employee, because it’s very difficult for the employer to carry their burden to show this person did not work, uh, 1, 250 hours.

So, you know, if it’s anywhere close, you’re going to err on the side that they met it for exempt employees, but for our non exempt employees. You can go hour by hour, you know, if they miss 1, 250 by 30 minutes, they’ve missed it, you know, so, um, you know, that, when you have the time records, you can do that calculation, uh, if it’s an exempt employee, again, typically we’re going to presume they, they meet, uh, this requirement,

Mike: And Brad, I talked earlier about a full time equivalency calculation. So this is all W 2 employees, but the fact that there’s that 1280 minimum hours worked, that kind of corrects for an employer who might have a concern say, Hey, I got this person that they only work, you know, they, they work Saturdays for me, right.

They, they, they work, they work six hours every Saturday. Um, do I really have to protect their job for. If they leave, well, the answer would be no, because they would never approach that 1, 280 hours. It

Brian: Exactly. And I think, don’t quote me on this, my math might be a little fuzzy, but I, I think it’s something around an average of 25 hours per week for the entire year that would get someone above this threshold. So, yes, that’s still somewhat of a part time employee, but, uh, this isn’t going to be your, you know, your sporadic workers

who are, you know.

Mike: you know, if you just think a 40 hour work week times 52 weeks is 2, 080 hours. So 1, 280 is a little, a little more than just half of that. So, you know, I mean, I think that’s a good rule of thumb. Somebody who works a little bit more than halftime. Is, is, is probably, could rule of thumb to be thinking about, that could be an eligible employee.

Brian: Exactly. And, and that for that same reason, that’s why when you look at it in those terms, you understand why most exempt employees who are working, you know, five days a week would, would easily hit this number.

Mike: Right. Right.

Brian: look, the last requirement, we talked about this same requirement in terms of employer coverage, but it’s also important for employee coverage that the employee works at a work site with at least 50 employees within a 75 mile radius.

Mike: Say, say more about that. What, what would be, what would be an example that maybe there’s 50 employees at a worksite, but they don’t work at that worksite. Would that,

Brian: Right. So, for instance, you know, something that’s come up in, you know, much more in the last few years has been, uh, uh, you know, remote work or telework, right? So, uh, you know, that can add a complication as to, you know, what worksite are those employees You know, working from in order to meet, you know, the, the 50s.

So, uh, in that example, you know, we’re looking at whatever office the employee, the remote employee reports to, or from which they receive their assignments. Um, you know, so, so again, you know, it goes back to the issue of, you can have a company with, you know, less than 50 employees at, you know, various, uh, work sites, um, And, you know, it might not apply to them because of, you know, the locations of those sites being, you know, more than 75 miles away from each other.

So again, this is just, again, to ensure that it’s only applying to employees who are at those sites with at least 50 employees within that 75 mile radius.

Mike: Brennan, how does that play for larger companies that increasingly have a large percent of their workforce is mostly virtual or at least flexible that maybe, I mean, I’m sitting here in our Austin, uh, uh, headquarters today. The, this is, I usually work from my home office. There’s a lot of people that come into this office for meetings and travel and they, and they kind of co locate here.

Um, how should businesses be thinking about the 50 employee within 75 miles if most people are actually remote and they occasionally come together into a single space?

Brian: Yeah. So I think in that case, it’s not necessarily, uh, the question of, you know, when they come, you know, very sporadically to whatever office, right? That might not be really what we’re looking at. You know, we’d be looking at, you know, where are, where’s your work coming from? Where are you being supervised?

Um, and look, that, that could be complicated because, That might, you know, have us, you know, pointing each employee in a different direction. But, uh, again, that’s something that a company should do, uh, you know, to make sure that, um, the employee is eligible. And again, we’ll get to this, but this, uh, this comes up, right?

So you first really determine that you’re an FMLA covered employer, right? So you know that you have to deal with FMLA. You’re going to have a policy and, uh, whatnot. This comes up when an employee comes to you and asks for, you know, some type of leave, or you have noticed that they’re seeking it. Now you need to determine if that employee is eligible for the leave, right?

You’re, you’re, you’re a covered employer, but you need to determine, is this employee someone who’s permitted to use, uh, FMLA leave? So, um, You know, that, that’s, that’s when this determination would be made most likely when, when that employee is making that request. So it, it may not be that a company needs to figure this out for every employee now, right?

You may know enough that, Hey, we’re covered, but then, you know, we’re going to have to see, you know, individual employees might be from, you know, various offices that, that might not have coverage. And so, you know, you need to, you know, inquire into that when they make their requests released.

Mike: right. So we talked about what companies in different configurations fall under FMLA. We talked about what employees are potentially eligible based on where they work and number of work hours. What are some of the specific criteria if they actually want to take leave?

Brian: Sure. Uh, excellent. Excellent question. So that is, you know, what, what this is all about. Right. So, um, you know, there’s different types of qualifying lead, right? Um, You And so the main, the main couple are, you know, FMLA leave for an employee’s own serious medical condition, right? That’s often when this comes up that, you know, the employee needs to, you know, they’re rather they’re unable to perform the functions of their job because of some medical issue.

And that is often, you know, what triggers, uh, you know, a request. Um, Likewise, it could be, uh, the serious medical condition of a family member, right? That’s defined as a spouse, a child, uh, or a parent. Uh, and so, you know, taking care of a family member with a serious, uh, health condition, uh, that’s another, uh, opportunity to take FMLA leave.

Uh, there are several, uh, leaves for, uh, individuals in military or families with, uh, individuals, uh, in active military service, uh, relating to exigencies, relating to, you know, uh, someone being called to active duty or impending duty. Um, and then, uh, the, the other area is really the birth or adoption of a child, right?

That, uh, an employee can take time off for that, for that purposes to bond with or care for a, a new baby. Um, and so again, re regardless of, you know. Generally, regardless of the type of leave, it’s going to be 12 weeks. We won’t get into, there’s one, there’s an exception for some type of military leaves that can go beyond that.

I, you know, we won’t dive into that, uh, um, that whole today, but generally, regardless of the type of leave, it’s going to be 12 weeks, um, you know, for care of a baby, for instance, uh, you know, that leave, you know, You’re only eligible for that between the date of birth and 12 months later. So you have that first year of, you know, a child’s life when you can, you know, take that FMLA leave.

Um, and, you know, uh, beyond that, you know, when, when we’re talking about, um, a serious, uh, health condition, right? Um, you know, that’s an important thing for employers to understand what is a serious health condition because oftentimes Uh, one, you know, a big issue in, uh, determining if it’s a qualifying leave is that the employee says they have some health condition and now we need to figure out if that actually, uh, subjects them to the FMLA and the ability to take FMLA leave.

So, you know, a serious health condition is any illness or impairment, uh, it could be a physical or mental, uh, condition. that either involves inpatient care or continuing treatment by a healthcare provider. Um, and so I think the general way that an employer can think of what type of health conditions are covered by the FMLA and what we’re talking about for the, you know, for the employee is that The FMLA was not designed to cover, you know, ordinary everyday conditions, right?

The common cold, the flu, earaches, uh, you know, upset stomach, um, minor headaches, you know, dental problems, you know, those, those are not serious, you know, serious, uh, you know, health conditions. Um, you know, these things are, again, right? I mean, On the more serious end, right, cancer, things like that, where you’re going to have continuing treatment, but it can be less serious things that nonetheless require, you know, a stay in the hospital and some continued treatment thereafter.

Um, and we’ll discuss that, you know, once an employer is on notice, uh, that an employee may need, uh, FMLA leave, uh, The employer then, uh, needs to gather information to make this determination. So, you know, what typically occurs is that you get a medical certification, uh, from an employee. Um, and then that, that comes from their healthcare provider and that certification provides information as to.

You know, what the condition is, um, you know, treatment or limitations, right? You know, uh, oftentimes employer, you know, it’s a good idea for employers to provide the medical provider a copy of the job description so that the medical provider can state, yeah, they, you know, what they can do with respect to the, the job or, or not.

Um, but yeah, you know, once we get that information, you know, Uh, you know, the employer needs to figure out, does this qualify as a health, serious health condition? Uh, and they can request more information. You can get clarifying information from the medical, uh, provider, um, and you know, the employer needs to promptly make that determination as to whether this is going to be subject to FMLA leave.

Mike: Brian, in your, in your practice, where, where is it? Like, I got a bunch of questions I want to ask about edge cases. It’s like. What defines family member, step kids, step parent, uh, Hey, it’s, it’s not my, it’s an aunt, but she raised me. I mean, there’s all kinds of kinds of edge cases here, but where are the places that you see employers get in trouble the most?

What are the, what are the cases that typically get litigated?

Brian: Yeah, so what I often see is a complete failure by employers to begin treating it as an FMLA qualifying event, right? And I say that, let me clarify, right? That, you know, we often say with respect to the ADA and disability accommodations, there’s no magic word, right? And that’s the same here, right? An employee does not need to come in and say, you know, Mike, I’d like to take FMLA leave, right?

An employee may have no idea what FMLA leave is, right? Let’s not presume they actually read the handbook, right? Um, so

Mike: Of course they

did. They just don’t remember it

Brian: Ha ha, that, that, that, that’s our, uh, right, that,

Mike: best practices that you have an updated handbook and you made sure that it was reviewed and signed off, but

Brian: Right. So they’ve acknowledged it, but we don’t know what they remember. So, right. So the key is, uh, that, you know, the company and look, this is not just HR. This may involve some training of supervisors that, you know, They need to understand when an employee is making a request for leave or, uh, providing information that they do have a serious, uh, health condition.

Uh, and so, you know, it’s so important for supervisors to, you know, push that information, you know, up towards HR, uh, or whomever will be, you know, handling, uh, you know, FMLA or other leave management that, you know, When you get, you know, and again, there’s, there’s no bright line test of what’s enough information versus what’s not enough information.

So that, that is why the key here is error on the side of caution, which means what? Which means if you think the employee has Maybe, possibly, uh, divulge some information about a requested leave that, you know, could potentially be covered by FMLA. You give them the medical certification, right? You give them the documentation for them to fill out and get back because at that point when the company gives them the certification, it’s not, the company is not saying this is FMLA leave, we’re beginning the process, you’ll have FMLA leave.

No, it’s really an inquiry. It’s saying we’re not sure if this is subject to FMLA. Here’s a certification form, have your provider complete it, get it back to us. So that we can then determine if this is, uh, if this is leave and, you know, the FMLA does impose the burden on the employee to provide the company with sufficient information to make that determination.

But again, that doesn’t mean the employer will be excused from, you know, seeking it, right? It’s more an issue of If the company seeks out this information, right, sends, gives the employee the medical certification form, and let’s say the employee just doesn’t turn, you know, return that form or otherwise just doesn’t get back to the employer with additional information to make this cover, you know, uh, eligibility determination, then the employer, again, you know, every case is different, right?

But if, if they’re, the employee is not getting the employer the information. then the employee will not be entitled to leave if the employer doesn’t have that. So that’s why it’s important for companies to establish, you know, in writing with a document, uh, that they are seeking information about this leave and whether it might qualify.

Mike: think like ICE enforces, uh, uh, immigration law and your, your I 9s. I think, uh, Department of Labor can do an audit on wage and hour laws. Um, EEOC for discrimination claim, who enforces FMLA, uh, is there an agency or do these things usually if there’s enforcement, it’s usually more the result of just a lawsuit.

Brian: So the U. S. Department of Labor is the agency that oversees the FMLA. And you’ve heard me reference the EFL, let’s say a few times, and that’s because the DOL manage, you know, oversees, you know, uh, both statutes. Uh, and so that’s why often, you know, if you’re an employer that’s ever been subject to a U. S.

DOL, uh, wage and hour audit, one of the questions during the audit will be, you know, do you have an FMLA policy? Because the DOL, you know, as long as they’re in, you know, with an employer, You know, do you have the poster? Do you have a policy? Right? They’re going to check on those things. Uh, but, you know, what I would say is that the majority of disputes in cases involving, um, you know, FMLA claims by employees, uh, go, go into court.

Uh, you know, you can certainly file a complaint with the Department of Labor. Uh, and likewise, if they’re unable to resolve the matter with the employee, with the employer rather, then the DOL will file a federal lawsuit. Um, so that’s how these typically come about.

Mike: yeah, I mean, cause it’s going to probably most commonly originate from a disgruntled employee who thought they probably got terminated have been held for them. And the employer probably thinks, well, they left. They, I couldn’t, I had to replace the job.

I had to keep working. So it’s probably a situation like that. And then the employee is like, goes, gets a lawyer and a lawyer says, no, they’re, they, they should have held the job. They’re, they’re an eligible employer. Then it ends up sitting in front of a judge. That’s, am I thinking about that,


Brian: absolutely. And right. And we’re just as likely to see an issue with the reinstatement at the end as we are with issues with providing the leave, right? So if you fail to provide leave at all, right. Right. That would be, you know, an FMLA, uh, interference claim. Yeah.

Mike: about, like, when I asked the question, where do employers get in trouble the most, you kind of said the starting point is, do they even treat it like. Potentially FMLA, family medical leave as a leave type, almost, this is where it might sound weird, but it’s almost like sexual, you and I did a podcast recently on sexual harassment, uh, and then specifically on investigations when there’s a harassment claim, right?

And just, if you’re sitting in front of the judge, There’s plenty of gray area, whether you were or weren’t liable, what you did or didn’t do to contribute and to prevent and blah, blah, blah. But you signal an awful lot to a judge, how serious you take the investigation when the complaint first presents itself, right?

If you can demonstrate to the judge that, hey, you know, They came to me, this is immediately what we did, we sequestered the people, we put a full investigation. The judge is going to look at that favorably whether you win or lose the case. Probably same here, right? If. If someone is suing you for FMLA leave and you’re like, Hey, as soon as they came to me, we got a legal opinion.

I looked at how many hours they worked. Here’s our records. And we made a determination that they, that this wasn’t a qualifying event. That looks a hell of a lot different than saying, Oh, I don’t know. They, you know, we just, you know, they, they left and that’s, that’s their, that’s their choice. Right. I mean, the judge is going to view those two cases very, very differently.

Brian: Mike, you’re a hundred percent on point. And in fact, this is actually a statutory, it’s in the statute. So, uh, you know, what, what, what the issue becomes is that if an employer’s violation of the FMLA is willful, then now that that does a couple of things. One, It extends the statute of limitations from two years to three years, meaning that an employee then has three years to file a claim instead of two.

And in addition, it leads to the imposition of liquidated damages. This is starting to sound a lot like the FLSA, right? Where the liquidated damages will essentially be equal to the amount of back pay and interest that the employee is entitled to, so it doubles their damages. Unless the employer can show it acted in good faith, um, and had a reasonable grounds to comply that it believed it complied with the FMLA.

So, you know, that’s why it’s so important. You know, as I said, just the beginning step of understanding, if you’re a company that this applies to, because look, it’s hard to get everything right a hundred percent of the time, you know, in handling FMLA leave designations. a company might get things wrong, you know, from time to time, it can happen.

And again, if the company goes through the right process, but for some odd reason, you know, makes an incorrect designation, you know, that may not lead to liquidated damages and a finding of willfulness. But if you’re an employer that Doesn’t even get the process started because you just don’t even believe you’re subject to FMLA and you know, you don’t even have a policy or, you know, you don’t even get started with inquiring about, you know, the leave and whether it qualifies.

That, that surely is going to be, uh, you know, willful and expose the company to greater damages. So exactly as you said,

Mike: So given employers the benefit of the doubt here, The reason they may not start, I, I can see all kinds of scenarios playing out in people’s minds, right? Um, you know, I, I don’t think the problem in, in the country is employers that are, uh, you know, finding ways to, to take advantage of the little man. I don’t think that, I think it’s just ignorance, uh, of, of what the law is.

And I can see employers thinking, oh, well, they said they need to take leave because they need to take care of a so and so. Well, I know them. They’re not even close to that person. They’re just using this as an excuse to get out of work. Right. Or, um, uh, they have to take a leave because they have some medical condition and you’re like, Oh, that person is always sick there.

I mean, they’re, they’re, they’re faking it. Maybe they’re right. Maybe they are even faking it, but they’re starting to play the role of doctor. Can, can you, can you give us some rails around. What are the types, I want to get deeper on the, on the qualifying reasons for leave. So let’s, let’s start with a fat taking care of family member. If it’s taking care of a spouse, a parent, or a child that seems black and white until you end up in today’s world of blended families that, uh, maybe what if it’s a stepchild? What if it’s, um, uh, not. A legally binding child, but it’s someone you really do take care of. What if it’s an aunt, not a grandma, but it’s the aunt who raised you.

And so she really, for you is your grandma. Can you, can you take us through some of those edge cases?

Brian: absolutely. So, no, you hit on some good points there. So, spouse is limited to the person whom an individual is married to, uh, as recognized under state law. And, so this is, again, right, a simple thing like spouse becomes a little complicated, right, because not all states in the U. S., for instance, allow, um, you know, certain types of marriages, so What the law, what the FMLA says is if you were married in a state that permitted that marriage, right, whatever the marriage is, then that’s a spouse, right?

It doesn’t matter if you then move to a state that would not, you know, permit that type of marriage. You are married because, you are spouses because you got married in a state that permitted it. Um, so that, you know, includes, you know, same sex marriage, but for instance, this does not cover you know, a domestic partner.

So a domestic partner would not be considered a spouse. Um, Then we go to child. And I, I, I swear you, I think you were reading from, you know, the definitions here, but, uh, you know, a child, right? So that can be a biological child. It can be an adopted or foster child. Uh, it can be a stepchild, as you mentioned.

It can be someone, uh, you know, in loco parentis. So, you know, that means, right, your example of, you know, an aunt who has basically raised this child as their own, they’re responsible for the child, right? They would be considered, uh, the person would be considered a child of that person because, you know, that individual has assumed the role of caring for the child even if there’s not a biological relationship.

Mike: how about siblings, adult siblings? Is that qualifying?

Brian: No, so that, that does not qualify, uh, siblings. Um,

Mike: So if my, so I’m 55, my 56 year old sister got cancer. I couldn’t take FMLA to go care for her. Right.

Brian: Likely not. However, you know, look, sometimes, you know, we have siblings who, you know, have certain circumstances where, you know, you as their sibling might take over the role for caring for them and become their, you know, they become their, your legal ward. Right? And so there could be situations like that where it could come under that, but absent some formality like that, Um, just the general concept of, hey, I need to take care of, you know, a sibling of mine.

Um, not, not qual, you know, that doesn’t come under FMLA. Right.

Mike: uncover every single, uh, uh, edge case here, is it safe to say, Brian, that employers should be thinking about this, it’s, it’s parent. spouse, children. And as long as you have, as long as that employee, you know, has anything that even feels plausible, you shouldn’t be putting your judgment on, oh, you know, they, they’re saying that it was their aunt who raised them, but that doesn’t qualify.

You should just err in the judgment. You should err to the side of the employee’s opinion that if they claim that somebody who’s their parent, their spouse or their child, probably dangerous, thin ice to be treading on as an employer to, to play the role of doctor or lawyer in determining whether that really is a qualifying event or, uh, uh, uh, uh, uh, an eligible case.

Give them their FMLA. You don’t have to pay them, right? You’re just protecting that job. But, uh, it’s those three, it’s not cousins, It’s not siblings, it’s not best friend who feels like family, it’s parent, spouse, child, right?

Brian: Yeah, exactly. And you’re right. You know, we have those definitions, but then, you know, look, some, I’ve seen some employers, you know, get into the weeds on, Well, what does caring for that person mean? And I’m going to inquire as to exactly what they’re doing to care for them, because I think they’re just sitting on a couch and watching TV all day.

Um, and look, you know, family abuse exists and there are ways we, uh, can, uh, crack down on it, but here caring for a family member, it’s generally going to be easily satisfied. If that person has a serious, if the family member has a serious health condition. You’re clearly going to be caring with them. It’s, you know, spending time with them to arrange, you know, doctor’s visits, handle their, you know, medical needs, um, you know, and even just the, uh, act of offering psychological comfort.

To a family member who’s already receiving care, right? That’s caring for them. So, yeah, agreed that, you know, employers should not, you know, you want to confirm, you know, who it is, but this is typically not one of the elements that, you know, an employer should really, uh, you know, be looking over with a fine tooth comb, right?

There, there are other areas that are, you know, um, lend themselves to more abuse than, than this specific concept.

Mike: Hey Brian, why don’t we wrap with maybe just some practical guidance? So, if you’re an employer that does not have Maybe you’ve got some copy paste stuff in an employee handbook, but you haven’t deeply thought about your FMLA policy. What would be your practical guidance for employers setting up an FMLA policy?

and a plan to review and administer when claims present themselves.

Brian: Yeah. So yeah, first off, yeah, absolutely. A company should, there are a couple of things, right? That an employer should do, right? There’s a required notice that should be posted. So that’s an easy one, right? We get our postings out. Um, and then, right. There are some other forms, but yeah, an FMLA policy that goes in the handbook or as a standalone.

That is an absolute no brainer, right? So first thing you’re doing, posting a copy of the FMLA notice, you can go to the Department of Labor’s website to get that. And then second, you’re developing this handbook section, right? And it’s going to go through a lot of what we’ve discussed today, right? It should explain how employees can determine their eligibility and how they request leave under the FMLA, right?

The timing of it, who they make the request to, um, you know, and, you know, you talk about the medical certification that I discussed, right? You’re going to say, A medical certification is required, you know, to be completed by your healthcare provider. Um, you know, in addition, it’ll have consequences for the employee failing to get the company information, right?

Because that’s just as important that, you know, to notify employees that if you don’t get us information for us to make this, uh, eligibility determination, then you’re not going to get FMLA leave, uh, or it’s going to be delayed until you get us that information. So we want to put that out there too. Um, and then obviously a big key we’ve touched on it is a statement saying how, you know, leave will be handled, you know, upon, you know, reinstatement, right?

There are reinstatement rights, um, and, you know, conversely, the consequences of failing to return, uh, after 12 weeks of leave. And I think I, I just want to get into that for one moment because that is a, an area where I see employers get tripped up, where they look at FMLA in a vacuum, where they say, all right, we’ve given you 12 weeks.

Now, at the end of the 12 weeks, the employee says, I can’t return. Let’s say it’s their own serious health condition. You know, the doctor says I need four more weeks and I’ve seen employers who say, well, you couldn’t return, we’re terminating your employment. And that’s not the way to go about this, right?

Because there are other federal and state laws like the ADA, right? If someone cannot return. Upon the end of their FMLA leave because of a medical condition, they conceivably have, may, may need ADA, you know, a disability accommodation, right? A reasonable accommodation could be an additional four or more weeks of leave.

Um, so we need to make the, you know, consider those things. And so this return after 12 weeks. They don’t always have to return, right? It could also be, maybe they come back with some, you know, light work, right? With light work instead of, you know, their normal job, uh, for some period of time. And that’s all kind of, it transfers into the disability accommodation sphere, uh, much of the time, you know, after FMLA leave.

Mike: Got it. Okay. That’s a really, really important ad. Um, I get my brain. I think so often I go to parent, spouse, child, and care and forget about, okay, this, this does count if you’re sick or you’re out too. And, and there that’s the crossover to potential. Uh, a DA do you see, I guess I’m guessing this doesn’t happen a ton, but if they are on FMLA for their own medical condition, the intent of FMLA is that you protect that job, but if you’re no longer capable of doing that job, where does the A DA start and the ADA a stop?

Because. Maybe you require a reasonable accommodation and maybe I’ll just, let’s say you worked in the warehouse and you have a job requirement, you had to be able to lift 10 pounds. Uh, 20 pounds over waist high. And now that, uh, the doctor releases, you can go back to work, but yet, but you gotta be a desk job.

Well, maybe the, you, you held back the, the warehouse job, but you don’t even have a desk job available for them. What are you still obligated under FMLA as it relates to the transition to ADA?

Brian: Yep. So great, great point. And so this is why, you know, it’s not necessary, but I think it’s definitely something we recommend that, uh, before an employee is going to return from FMLA, and again, this is only when it’s the employee’s own serious health condition, would be you want to require them to get a fitness for duty.

Uh, you know, documentation, you know, from their medical provider to provide to you that certifies that, yeah, they can do the job. And so, again, this goes back. We need a job description. That’s going to talk about the essential functions of the job so that the medical provider can provide their opinion as to whether this person can come back, you know, without any restrictions or right.

They, you get a fitness for duty letter that says. This employee can return but has these restrictions and then, right, then it completely goes into the disability accommodation, uh, framework and we’re, you know, determining if that’s a reasonable accommodation, if there’s undue hardship, um, of course, we don’t have to create new positions for people, but if there is an open position that, you know, is slightly different that, you know, you know, would, would fit these restrictions and the employees, you know, agreeing to that, then, you know, that, that would be a way to go there.

Um, and so, you know, we’re, we’re, I think that’s why it’s always good. And this goes even beyond FMLA, but whenever an employee is on some type of disability related leave, you need to get a note from the doctor’s provider before, uh, from the medical provider before they come back to confirm. What restrictions, if any, they have, right?

Otherwise, you know, you can, you know, wind up having a whole host of issues at that point.

Mike: This is maybe an, I’m feeling two future podcasts for you and I, I mean, there’s, we could do an ADA in and of itself, obviously that’s a, it’s a really, really big topic, but we could spend an hour there. We could probably spend darn near an hour just on this FMLA to ADA bridge topic. This is interesting.

This is something I haven’t really thought of.

Brian: Yeah, yeah, and it comes up more than you think. I mean, obviously, there are lots of FMLA leaves that don’t implicate the employee’s, uh, medical condition, right? It’s others. And so that’s not, you know, it doesn’t always come up in that vein, but, um, Yeah, I mean, look, many FMLA leaves are for the employee’s own, uh, health condition.

And yeah, you know, they’re, they’re not always ready to come back in 12 weeks or they are, but there’s restrictions. And so, you know, again, that, that’s where an employer, if they, you know, if they look at this in a vacuum, as I said before, they might think they’re complying with the law because, hey, you couldn’t come back in 12 weeks.

Sorry, we don’t have to do any more FMLA leave to give you, but right, there’s, you know, short term disability, there’s, you know, reasonable accommodations for disabilities, a whole host of things that, you know, could be implicated in, in that return to work.

Mike: Yeah, right. Brian, anything else you want to leave us, uh, on the topic of FMLA before we wrap?

Brian: I think my, my last piece of advice with employers would be, don’t be, don’t feel overwhelmed. And if. The discussion today of the requirements and obligations, uh, you know, seem, you know, burdensome. It’s, this is a process that you can really set up with a check the box and go from one step to another and use certain forms.

And so, you know, what I would really suggest is, you know, investing in the compliance now, and that it’ll pay off. Yes, you’re still going to have questions. There will still be some situations where you might need to, you know, speak to an HR consultant at, uh, Assure for guidance. But without the basic framework, you could very well end up being one of those employers that isn’t even, you know, deeming employees eligible who are entitled to take FMI leave.

And that, that’s a really bad place to be in. So a little, a

Mike: think you started, I think you started the conversation today saying that this is simpler than it seems, and I think we just proved in the last hour that it’s not. It’s, it’s, the concept, pretty simple, um, and I’d say it’s probably not 80%, it’s probably 90, 95 percent of cases are typical, uh, but where employers get in trouble is around the edges and most importantly, not taking it serious, right?

Brian: Exactly.

Mike: Brian, thanks. I always enjoy our conversations and thanks to everybody else for joining today. Uh, if you got value from today’s program, uh, I encourage you to like, comment and share, uh, consume this podcast on any platform you choose, including YouTube, uh, and until next week, we’ll talk to you later.

Thanks, Brian.

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