The Family and Medical Leave Act (FMLA) is a federal law that protects employees who need to take time off work (up to 12 weeks per year) for FMLA-qualifying reasons from losing their job or being retaliated against by an employer. The official guidelines are extensive and detailed, but the penalties enforced on employers who don’t comply are stiff.

Keep reading to learn all about FMLA guidelines for employers, along with:

The rules employees and employers need to follow
What protections apply to employees
How to make FMLA administration and compliance easy for everyone

Employer criteria under the FMLA

Most private and public employers must adhere to the FMLA rules. The law applies to employers with 50+ employees working 20 or more weeks in the current or previous calendar year.

The employee count includes anyone who:

Works in the US or its territories
Is on the payroll records
Is on paid or unpaid leave
Works part-time, full-time, seasonally, or on a temporary basis

Employee eligibility for FMLA leave

Employees are eligible to take unpaid FMLA leave if they:

Work for an employer that meets the requirements outlined above
Worked for the company for at least 52 weeks (does not have to be consecutive; part-time, seasonal, and temporary work counts)
Worked at least 1,250 hours during the 12-month period (overtime is included)
Work at a location where there are at least 50 employees within 75 miles

Scenario: A seasonal food service location has employees working during part of the year. Those responsible for calculating FMLA leave would have to look at multiple years of employee history to determine whether they reached the 12 months of service requirement to qualify.

Eligible reasons for taking time off under the FMLA include:

Giving birth to, caring for, or adopting a child (for all parents)
Caring for an immediate family member with severe health issues
Developing a health condition that prevents them from doing their job
Supporting a family member on active duty

How the FMLA applies to shift-based jobs

The FMLA does have limitations and stipulations for employees, particularly those doing shift work. Examples include:

The amount of time offered: Under the FMLA, employees can take up to 12 weeks of job-protected leave. Depending on the reason, an employee may need to take more than 12 weeks off, and any additional time taken could cause issues with employment.
Tenure-based requirements: Many employees, especially shift workers, aren’t eligible for FMLA leave based on how long they’ve worked for the employer. Shift-based work can have high turnover rates.
Different rules for spouses: If spouses work for the same employer, they can be limited to a total of 12 weeks of leave for some types of FMLA leave, rather than being able to take 12 weeks each. For example, they must share the same 12-week entitlement if they want to take leave for the birth of a child, placement for adoption or foster care, or care of a parent with a serious health condition.
Who is considered a family member: The FMLA defines a family member as a spouse, child, or parent, not in-laws or siblings, which can cause problems for employees who need to care for those family members.
It’s unpaid: Many shift workers may not take FMLA leave because they need to support themselves, leading them to try to swap shifts with other employees or potentially call in sick.

Employees may also worry about FMLA leave affecting a promotion, even when they qualify for it; however, doing so would be unlawful on the employer's part unless the reason for denying the promotion is entirely unrelated to the employee’s FMLA leave and the employer can prove it.

Case study: Trek Bikes, managing schedules, time off and compliance on the go

Trek, a multi-location bicycle retailer, struggled with employee scheduling, juggling time off requests, and managing labor law compliance as they expanded. So they turned to Deputy for help. Our mobile app made it easier to schedule the right team members, approve time off, and navigate new labor laws as they grew into different states and cities — all on the go.

This has enabled their managers to spend less time on administrative tasks and more time on the sales floor either mentoring team members or helping customers. In fact, they saw a 30% increase in overall productivity because managers weren’t spending all day on scheduling, approving time off, and managing compliance.

FMLA rules for employers and employees

Employers and shift workers must meet certain requirements to adhere to the regulations of the FMLA.

Rules for employers

Here is what employers must do under the FMLA.

1. Hang FMLA posters

All FMLA-covered employers must post detailed information in plain view so employees can easily read it. The information on the poster must include:

What the FMLA is
How to apply for a covered leave of absence
How to file a complaint with the Wage and Hour Division

The text on the poster should also reflect all languages spoken by employees in the workplace. Employers can find an official FMLA poster on the Department of Labor website—it’s free. Failure to follow this rule will result in a civil monetary penalty for each separate offense.

Final note: FMLA information should also be in the employee handbook. If there is no handbook, provide detailed information at the time of hiring.

2. Provide eligibility and rights and responsibilities notices

All employers need to provide employees who request leave with an Eligibility Notice, whether written or oral, that informs the employee whether they’re eligible for FMLA leave. Additionally, if the employee isn’t eligible for FMLA, the notice must include a stated reason for the ineligibility.

Employers need to provide this notice within five business days of the initial FMLA leave request. If the employee cannot speak English, this notice must be given in a language they understand. Employers don’t have to provide an Eligibility Notice if an employee leaves again within the same 12 months or leaves for a different reason and their eligibility hasn’t changed.

The Rights and Responsibilities Notice lists the employee’s responsibilities and entitlements during their leave. It must be given to each employee who receives an Eligibility Notice. If the leave has already started, an employer can mail this notice to the employee (in a language the employee understands).

3. Give employees a designation notice

Employers need to designate the employee’s leave as FMLA leave and provide a FMLA Designation Notice. The notice shows the leave is classified as FMLA leave and outlines any requirements the employee may have while on leave. For example, an employee might need to pay their portion of the insurance premiums while away from work, as they won’t be automatically deducted from their paychecks if the leave is unpaid.

4. Properly calculate FMLA leave

Employees can take FMLA leave in increments of weeks, days, hours, or sometimes even less than an hour depending on the employer’s policies. Calculating FMLA leave has to be exact because only the amount of leave the employee actually takes from work may be counted against their FMLA entitlement. In other words, time the employee is not scheduled to report to work is not counted as FMLA leave. That means the employer cannot count any holidays or other days the employee would already have off work as part of their leave.

5. Maintain health insurance benefits and keep job available

Employers must maintain an employee’s position and any applicable benefits, including health insurance, as long as they fulfill their responsibilities while on leave. If the same role is not available when an employee returns, one of equal level (pay, benefits, conditions, etc.) must be offered. Employers also must give the employee any unconditional pay increases that occurred while they were gone, such as cost-of-living raises.

If an employee is laid off while on FMLA leave, the employer needs to prove the layoff would have happened whether the employee was present or away from work. For example, if an entire department is laid off, that would have impacted the employee, regardless of leave status.

6. Keep proper records

It’s the employer’s responsibility to keep all records organized and confidential. All physical and electronic records must be kept for at least three years. The information in these records should include:

Employee’s name, address, and job title
Pay rate information
Average hours worked per pay period
Additions and deductions from wages
When FMLA leave is taken
Hours of FMLA leave used
Copies of FMLA notices provided by both employers and employees
Documents with employee benefits or employer policies and practices regarding leave
Premium payments for employee benefits
Records of any dispute between the employer and an employee regarding the designation of leave as FMLA leave

To ensure confidentiality, all records regarding an employee’s health or their family’s health should remain separate from their personal records.

Rules for employees

Employees also have rules they need to follow to qualify for FMLA leave and while on leave.

1. Give proper notice

An eligible employee must inform their employer that they need FMLA leave at least 30 days in advance unless there are extenuating circumstances. The notice can be written or oral and must provide sufficient information to indicate that the leave qualifies under the conditions of the FMLA. It should also say when the leave will start and how long the employee needs to be off.

Scenario: An employee’s family member has experienced a sudden illness and requires care. The 30-day notice requirement may be waived to accommodate this unexpected circumstance.

2. Complete all documents and certifications

Employees requesting FMLA leave must fill out all documents and certifications their employer requires. Examples may include a medical certification verifying the need to take leave, completed by a healthcare professional.

If an employee doesn’t complete the required documents or certifications within the 15-day turnaround time, then the employer may have the right to deny the request for FMLA leave until it is provided. Of course, the employer may choose to provide additional time. Also, the leave should not be denied if the employee made diligent good-faith efforts to meet the deadline but was unable to do so due to circumstances outside their control.

3. Provide additional information requested

Employers may ask for additional information, and employees should provide it as long as it’s reasonable. An example could be an employer requesting more information about an employee's relationship with a family member to ensure it complies with the FMLA regulations.

An employer is also permitted to ask for additional information about any health conditions an employee is dealing with, such as treatment timelines, but can’t ask about treatments specifically.

4. Pay health insurance premiums

Employees must continue paying into their health insurance during their FMLA leave to keep it — even when they aren’t receiving a paycheck. The employer should include details about how and when to pay premiums in the FMLA documentation provided to the employee.

Establishing rules for shift workers to request FMLA

The FMLA is an essential piece of legislation protecting employees, but it is also quite complex, particularly for employers navigating the fine print. There are steps you can take to make things less challenging for both you and your employees.

Simplify the process of requesting leave

First and foremost, make it simple for employees to request leave. Create a process with clear steps that all employees understand and can follow.

Establish consistent processes

Next, set up processes that automatically enter approved leave requests into employee schedules, which will help to avoid conflicts or unfilled shifts. Consider how you can plan ahead for upcoming leave. For example, start the process as soon as you receive notice that an employee will be taking parental leave.

Maintain compliance

When it comes to managing different leave requirements and complex labor laws, it pays to invest in modern compliance software that simplifies the whole process.

To learn how Deputy can help you manage employee leave, scheduling, and labor law compliance, book a demo today with one of our experts today.

FMLA Guidelines for Employers: Decoding How They Apply to Shift-Based Work