Jim Jantz, JD
Director of Compliance – Absence, Disability, & Life
While the Family and Medical Leave Act (FMLA) does not require employers to have a written policy, many covered employers choose to create one. According to the FMLA regulations, a clear policy can help you:
- Stay compliant with applicable laws.
- Standardize the process for consistent application.
- Set clear expectations so employees understand their rights and responsibilities.
- Guide HR and managers in handling questions and requests.
Drafting your FMLA policy: compliance and function
When creating your policy, it is generally recommended to focus on two key areas: compliance and usability. Your policy should include all required information to meet legal standards. At the same time, it should be easy to understand and accessible to employees.
What your policy typically should cover
Compliance essentials
It’s helpful to clearly define:
- Employee eligibility: Who qualifies for FMLA leave.
- Qualifying reasons: The reasons employees can take FMLA leave.
- Covered family members: Which family members qualify for leave, such as spouse, parent, or child.
- Leave entitlement: The amount of leave available in a 12-month period.
Also, consider explaining employee responsibilities:
- Notice: Employees must inform you when they need leave. They don’t have to say “FMLA,” but your policy can specify how and when to notify you, depending on whether the leave is planned or unexpected.
- Certification: You may require medical certification for leave related to serious health conditions. Other documentation might be needed in some cases.
- Return-to-work release: If the leave is for the employee’s own health condition, you can require a doctor’s note confirming they’re ready to return. Make sure this requirement is clearly stated in your policy and communicated during leave designation.
And don’t forget your responsibilities:
- Benefit protection: Your policy should explain that employees can keep their group health insurance during FMLA leave on the same terms as if they were working. Other benefits like life insurance, disability, sick leave, vacation, and retirement plans should also be maintained as required.
- Job restoration: Employees have the right to return to their same job or an equivalent one with the same pay and benefits.
- Employee protections: Your policy should state that you won’t interfere with or retaliate against employees using FMLA leave.
Additional policy details to consider
- Calendar method: Explain how you calculate the 12-month leave period (e.g., calendar year, rolling 12 months).
- Use of paid leave: Clarify if and when employees must use paid leave during FMLA.
- Intermittent leave for bonding: State whether intermittent or reduced-schedule leave for bonding is allowed and under what conditions.
- Shared leave for spouses: If spouses both work for you, explain whether they share a combined 12 weeks of leave for bonding or caring for a parent.
- Key employee exception: If you deny job restoration to key employees (highest-paid 10% within 75 miles), include this in your policy.
- Interaction with other leaves: Describe how FMLA works alongside other leaves, such as state laws, company policies, short-term disability, PTO, or paid family leave.
Making your policy work for your team
You have flexibility in how you organize your policy, but it’s generally helpful to arrange it in the order employees will experience the leave process. This makes it easier to follow. Consider adding a definitions section to explain terms like “serious health condition” or “covered family member.”
Make sure all employees know where to find the policy—whether in a handbook or on your intranet.
Keep your policy up to date
Once your policy is in place, it’s recommended to review it regularly to ensure it stays compliant with changing laws and matches your current leave practices.
How Marsh McLennan Agency (MMA) can support you
MMA’s Absence, Disability, and Life Specialty Practice provides guidance to help you manage leave programs and stay compliant. Contact us today.
This information is provided for general informational purposes only and should not be considered legal, tax, or employment advice. Please consult your own legal or compliance advisor for advice specific to your situation.
