Your top Family and Medical Leave Act questions answered

When it comes to absence, disability and leave rights, an estimated 42% of middle-market employers struggle to stay updated on or compliant with state and local laws. As many as 33% face compliance challenges specific to the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act Amendments Act.

This can make it easy for employees to become misinformed. They may not understand the types of leave their organizations offer and their eligibility for these programs.

To maintain compliance when new rules surface, you must establish clear guidelines for communicating with employees about their FMLA policies.

To help you achieve this, we’ve compiled a list of the frequently asked questions regarding the FMLA.

How do we differentiate between maternity and paternity leave?

Categorizing parental leave by maternity and paternity can be confusing and even discriminatory. One option to help avoid this is to use the terms medical leave and bonding leave, where medical leave is paid time off for the person who gave birth to medically recover from childbirth, and bonding time is for any parent regardless of their birth status.

There is no gender distinction for federal FMLA. Bonding leave is available regardless of gender and applies to birth, adoption, or foster placements. When applicable, medical and bonding leave should run consecutively rather than concurrently.

If you have two parents working for the same company, consider reviewing your FMLA policy for the “marriage penalty.” This applies to a married couple working for the same employer, who must share 12 weeks of new parent/child bonding time. Determine if you wish to continue administering bonding leave in that manner.

Why does a business need a leave policy if the FMLA is federal law?

Even though the FMLA provides the baseline, almost half of employers (42%) offer medical leave programs that extend beyond required FMLA protections. Consider the extenuating circumstances in which your organization will allow leave time beyond what’s afforded in the FMLA. Outline those circumstances in your employee handbook and consistently apply those policies to all employees. Be aware that FMLA-like leave doesn’t count against the employee’s actual FMLA time, so employers who grant FMLA-like leave (e.g., to care for a sibling or domestic partner) could also be eligible for FMLA time (e.g., child needs a surgery) within the same 12-month period.

Is an employee still covered by group medical insurance if their leave extends beyond the FMLA limit?

Many employers will extend leave for employees beyond the 12-week FMLA limit under special circumstances. Issues arise when businesses do not create a policy outlining what happens with the employee’s benefit status when they transition to non-FMLA leave, which happens with some frequency. Most insurance carriers require that employees are actively working or are on protected leave (such as FMLA) to continue their coverage. You must create a policy to address how benefits are handled in the event of a non-FMLA-leave situation to avoid inconsistent treatment of employees, discrimination lawsuits, and being held responsible for claims made during the unprotected leave period. You should confirm if insurance or stop loss carriers agree to these policies.

Do I have to inform employees about their rights under the FMLA?

When an employee becomes eligible for FMLA leave, you must notify them of their rights and responsibilities within five business days. Provide the employee with a completed Notice of Eligibility form along with details about:

• Employee requirements to provide medical certification
• How their benefits may be affected
• The next steps in the FMLA approval process

Is there another way to grant employees protected leave if FMLA is not an option?

FMLA is not available for:

• Businesses that are not FMLA-required employers
• Employees who have not worked for the company for at least one year and accrued at least 1,250 working hours
• Employees who have already exhausted their FMLA leave within the 12-month period

In these cases, the Americans with Disabilities Act may still apply to the employee's specific condition. It requires employers to provide adequate accommodations for an employee’s disability and can be used to provide leave for an employee even without FMLA requirements.

Five best practices for FMLA policy creation

Keep these guidelines in mind when crafting your FMLA policy to maintain clear, effective rules.

1. Have a written policy outlining your company’s FMLA rules and leave procedures.
   
   
2. Periodically review your company’s policy to ensure it still aligns with your paid leave policies and complies with any federal or state changes.
   
   
3. Be aware of the nuances between FMLA and other required state-mandated leave programs. Some states, like Wisconsin, impose a calendar year allotment, while most others utilize a 12-month rolling calendar for the FMLA. FMLA also defines a “family member” as a spouse, child or parent, while many states cover a wider variety of covered relationships.
   
   
4. Empower managers with information about your leave policies, what circumstances trigger them, and their requirements. An employee is never responsible for requesting FMLA by name, but the manager is obligated to know when FMLA applies. Managers should defer to their HR department on whether an employee’s absence qualifies for paid leave.
   
   
5. Consider engaging a third-party administrator to support your organization’s leave management process. While outsourcing leave management used to be a strategy exclusive to larger corporations, solutions are becoming more available and attainable for smaller, mid-size businesses.

How Marsh McLennan Agency can help

Developing and maintaining clear FMLA policies aligned with other company, state-specific, and federal policies can become complicated and confusing without the right information and a proactive plan. Contact one of our employee health and benefits specialists today to learn how we can support your organization.