Leave of Absence Tool – Employers Covered by Federal FMLA
Assess whether an employee is eligible for leave under the federal Family and Medical Leave Act and use as a compliance checklist.
I. Determining Eligibility / Entitlement*
- Has the employee worked for the employer for a total of at least 12 months (counting separate periods of employment where required to do so)?
- Will the employee have worked at least 1,250 hours in the last 12 months when the leave commences?
- Does the employee work at a site with fifty (50) or more employees or are there fifty (50) or more employees within seventy-five (75) miles of the worksite?
- Does the employee require leave for any of the following reasons, as defined in the statute and regulations?
- Own serious health condition
- To care for a newborn, newly adopted child, or child recently placed into employee’s foster care
- To care for a child, spouse, or parent with a serious health condition
- To attend to a qualifying exigency
- To care for a covered service member
- Does the employee have any leave remaining of his/her leave entitlement in the 12-month period established by the employer?
- Did the employee provide appropriate notice of the need for leave (30 days or as soon as practicable) or a valid explanation for failing to do so?
If you answered “yes” to the foregoing questions, the employee is likely entitled to leave under the federal FMLA. Note: Whether or not the employee is eligible for federal FMLA, s/he may be entitled to leave as a reasonable accommodation under the ADA or analogous state law. See Leave of Absence Tool – ADA: Leave as a Reasonable Accommodation.
*This tool is designed to help analyze whether an employee is entitled to leave under federal law. It does not cover all the questions that can arise in specific situations. For additional information regarding calculations, definitions of key terms, and employee / employer responsibilities under the FMLA, consult counsel as well as the Department of Labor’s detailed regulations, available at: http://www.ecfr.gov/cgi-bin/text-idx?c=ecfr&SID=93646d8ace0ed31952010598d01e5bd3&rgn=div5&view=text&node=29:220.127.116.11.54&idno=29
II. To Do
- Hang U.S. Department of Labor notice about FMLA in a conspicuous place
- Provide the employee with the Notice of Eligibility and Rights & Responsibilities document within 5 business days of request for leave: http://www.dol.gov/whd/forms/WH-381.pdf
- Attach the appropriate certification form and job description to the Notice of Eligibility and Rights & Responsibilities document.
- Employee’s Own Serious Health Condition: http://www.dol.gov/whd/forms/WH-380-E.pdf
- Family Member’s Serious Health Condition: http://www.dol.gov/whd/forms/WH-380-F.pdf
- Qualifying Exigency for Military Family Leave: http://www.dol.gov/whd/forms/WH-384.pdf
- Serious Injury or Illness of Covered Servicemember for Military Family Leave: http://www.dol.gov/whd/forms/WH-385.pdf
- Give the employee at least 15 days to return the certification form and, in some circumstances, more time if s/he fails to do so.
- Provide the employee with a Designation Notice within five business days after the employee submits a completed certification form: http://www.dol.gov/whd/forms/WH-382.pdf
- If the leave is designated as FMLA-qualifying, maintain the employees’ coverage under any group health plan, continue to pay premiums as during active employment, and educate employee regarding expectations for payment of the employee portion of the premium.