The Family and Medical Leave Act (FMLA) is a federal law that protects your job and benefits while you are away for specified family or medical reasons. It was intended to:

• Balance workplace demands and family needs
• Promote stability and economic security of families
• Promote national interest in preserving family integrity

Under federal law, FMLA provides up to 12 weeks of unpaid leave in a 12-month period. However, employers should check with their local state laws as this period can vary.

Employer Eligibility

Employers subject to FMLA are those with 50+ employees for at least 20 workweeks in the current or previous calendar years.

Employee Eligibility

1. Must be employed for at least 12 months (can be nonconsecutive) or have at least 1,250 hours of service with the covered employer during the 12 months before their FMLA leave starts
2. Must work at a location where the employer has at least 50 employees within a 75-mile radius

What is a qualifying event for FMLA?

• Birth of a child
• Adoption or foster care
• Care for an employee’s spouse, child, or parent who has a severe health condition
  • including incapacity due to pregnancy and prenatal medical care)
• Serious medical condition
  • Overnight hospital stay
  • Condition incapacitates employee or family member for more than three consecutive days
  • Pregnancy (including prenatal appointments, incapacity due to morning sickness, etc.)
  • Chronic conditions that can cause occasional periods when employee or family member are incapacitated and require treatment

Note: Fathers are equally entitled to take up to 12 works weeks of FMLA leave for birth, adoption, foster care placement, and/or bonding time within the first 12 months.

FMLA & Group Health Plan

When an employee is on FMLA, group health insurance coverage must remain on the same terms as if they were still working. This also includes family member coverage if they have it. If open enrollment occurs during their FMLA, the employee must be notified, and they are entitled to a new or revised plan/benefits to the same extent as if they were not on leave.

The exception is if the employee chooses not to retain group health coverage during their leave. Note that this is considered a suspension rather than a termination, so when they return, benefits must be reinstated to what they were before the employee took the leave.

Except as required by COBRA and for “key employees,” an employer’s obligation to maintain health benefits during leave ceases only when:

• Employment relationship would have been terminated regardless of the employee being on FMLA leave (e.g., job position eliminated, layoffs)
• Employee informs employer of their intent not to return to work
• Employee fails to return from leave
• After exhausting FMLA leave entitlement in the 12 months, the employee continues leave

Enforcement

It is unlawful for any covered employer to:

1. Interfere or deny the attempt to exercise any right provided by FMLA.
2. Discharge or discriminate against any individual for opposing any practice or because of involvement in any proceeding related to FMLA.

We always recommend keeping sufficient documentation if an employee is terminated while on FMLA and consulting an attorney. The Wage and Hour Division of DOL strongly enforces FMLA, and you should be prepared if an employee challenges anything.

As a broker, make sure you take the opportunity to consult with any of your clients who have become newly subject to FMLA, as they may be struggling with FMLA practices. Many employers may also need help developing clear LOA policies for FMLA and non-FMLA leaves. Lastly, be aware of any employers experiencing wage and hour audits, as FMLA practices may also be looked at. There are many helpful tools like absence management services that can help with FMLA.

Our senior legal counsel Michelle Barki covered FMLA in our last Compliance Recharge webinar. Every other Thursday, we host a webinar on various compliance topics. Stay up to date and register for our series via Zoom. And as always, Medcom is here to help you and your clients navigate the confusion that is employee benefit law. If you have any questions, please do not hesitate to contact us.