A Family and Medical Leave Act Checklist

The current debate over modifying the Family and Medical Leave Act has made the jump to the mainstream media. Supporters want to further expand FMLA benefits up to and including paid leave while opponents want provisions that remove the potential for abuse.

Ultimately, the debate will only increase confusion over the difficult-to-administer law so now this is a good time to ensure your policy contains the following 11 elements:

1. A notice that FMLA leave is limited to 12 weeks in a 12-month period. We recommend employers use a rolling 12-month period of eligibility. This prevents any employee from using more than 12 weeks in any 12-month period.
   
2. A requirement that employees work 12 months or 1,250 hours per year to be eligible. (Employment does not have to be continuous.)
   
3. Permitting intermittent leave as long as there is reasonable notification of management.
   
4. Specific definitions of what is considered “a serious health condition.” FMLA defines “serious” as a condition resulting in at least three consecutive days of incapacity and treatment by a healthcare professional.
   
5. The ability to transfer an employee to an equivalently paid position in the organization where FMLA leave is less disruptive to operations.
   
6. A ban on discrimination in granting FMLA leave.
   
7. Medical certification requirements, including reports that must be filed when on leave and any fitness-for-duty certification that should be supplied prior to returning to work.
   
8. Rules on who pays for the employees’ continued health and/or benefits coverage while on leave.
   
9. Your right as employer to require or decide that employees use paid time off (PTO) or sick time as vacation days before considering FMLA leave.
   
10. Your employee's right to return to the job left or an equivalent job (as long as all policy conditions are met).
    
11. The “key employee” provision that allows you to deny re-employment of certain highly paid employees whose presence is deemed crucial to the company. When requesting FMLA, you should advise employees that you will not make the decision about whether to re-employ them until the end of their leave.