Private-sector employers generally must comply with FMLA if they employed 50 or more employees for at least 20 workweeks during the current or previous calendar year. Public agencies and schools are generally covered regardless of workforce size.

FMLA is complicated, and violations can be costly. In addition to federal FMLA requirements, your organization should review state and local leave laws that may provide broader protections or additional leave rights. Many compliance issues arise when employers focus only on federal requirements.

One way to ensure compliance is to audit your FMLA policies and procedures annually. Use the following guide to ensure your company complies with all requirements.

Have a written and updated FMLA policy

Your employee handbook should include a clear FMLA policy. Make sure your FMLA policy specifies who may take FMLA leave and the circumstances under which it may be taken. To take FMLA leave, your employee needs to have worked for you for at least 12 months and worked at least 1,250 hours during those months.

The following types of leave are covered under FMLA:

• Leave related to birth, pregnancy, and adoption or foster care
• Care for family members with serious health concerns
• Serious personal health conditions
• Military qualifying exigency leave
• Care for a military family member with an injury or illness

Define your 12-month FMLA year

FMLA allows for up to 12 weeks of unpaid leave during an employer-specified 12-month period. Typically, you may select the 12-month period. This can be a calendar year, a fiscal year, a rolling 12-month period, or the year beginning on the anniversary of an employee’s date of hire. Do not change the definition often or apply different definitions to different employees.

Define bonding leave during foster care or adoption placement

Employees can take up to 12 weeks of FMLA leave to bond with a child placed through adoption or foster care. The leave is available within one year of placement. Employees can also take it before the actual placement if they need to prepare for the child’s arrival. Clarify this definition in your policies. Intermittent bonding leave generally requires employer approval unless otherwise required by applicable state law.

Include any rules about notification

You can require your employees to provide 30 days' notice when the reason for leave is foreseeable. Include any notification rules in your employee handbook or some other written notice. Verbal notice to your employees will not be legally binding. Sometimes leave is unforeseeable. Make sure you also have a policy for sudden emergencies or illnesses.

Provide a paid time off policy

FMLA leave is generally unpaid. However, employers may require or allow employees to substitute accrued paid leave according to company policy and applicable law. When paid leave is substituted, it generally runs concurrently with FMLA leave. Apply this policy consistently to all employees.

Define employee benefits and rights during leave

You must continue to provide employee group benefits during FMLA leave. You may require employees to pay their portion before leave, while on leave, or after they return to work. If your employee does not pay their portion of the premium, you may discontinue benefits. Include this information in your employee handbook.

Require fitness-for-duty certification

If leave was taken due to a serious health condition, you can require a fitness-for-duty certification before the employee returns to work. The employee's healthcare provider can provide this certification.

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Add outside work prohibition

Your organization may wish to establish a consistently applied policy governing outside employment during leave. Seek employment counsel before taking adverse action based on outside employment while an employee is on FMLA leave.

Prepare an FMLA packet

Develop and maintain an FMLA packet to provide when employees request leave or when leave may qualify for FMLA protection. Include:

• Your FMLA policy
• The Department of Labor's (DOL’s) notice of eligibility, and employee rights and responsibilities
• The DOL’s designation notice
• Certification forms for healthcare providers
• Fitness-for-duty forms, if applicable

Display the DOL’s FMLA poster

You must display an FMLA poster with all the major provisions at all of your worksites. The poster must also explain how your employees can file an FMLA complaint. Place your poster where all employees and applicants can see it.

Keep thorough and accurate records

You are required to keep records of all employees who take FMLA leave. These records must include:

• Identifying employee information
• Basic payroll data
• The dates FMLA leave was taken
• Copies of general employee notices
• Copies of specific employee notices if leave was requested or taken
• Documentation of any FMLA disputes
• Receipts of employee benefit premium payments
• Your employee handbook or other policy handbook describing the leave policy

If you rely on manual timekeeping, you may be at risk of violating FMLA because of incomplete records.

Keep written acknowledgments

Have your employees sign acknowledgments that they understand your FMLA policy and their rights under that policy. Include any state laws that may offer additional protections beyond those provided by FMLA.

Regular audits can reduce the complexity of FMLA and ensure you stay in compliance. If you have questions about FMLA or how to perform an audit, contact us.

This content is for informational purposes only and not for the purpose of providing professional, financial, medical, or legal advice. You should contact your licensed professional to obtain advice with respect to any particular issue or problem.

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