How FMLA provisions might affect your nonprofit
The Family and Medical Leave Act (FMLA) is a U.S. federal law that offers unpaid, protected job leave with health benefits. Here are the basics, including requirements for nonprofit employers. BEWARE: These provisions may likely change during 2020, so keep up-to-date on FMLA provisions via this website: https://www.dol.gov/whd/fmla/
What are the FMLA provisions?
FMLA provides up to 12 weeks of unpaid, job-protected leave to eligible employees for the following reasons:
- Incapacity due to pregnancy, prenatal medical care or child birth
- To care for a child after birth or placement for adoption or foster care
- To care for an immediate family member with a serious health condition
- To take medical leave when unable to perform an essential job function due to a serious health condition
- Serious health condition: illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a health care provider
- Immediate family member: Parent, spouse, or child (and, in some states, grandparent or sibling)
Treatment for substance abuse may be covered by FMLA. However, coverage doesn't extend to absences due to an employee's use of an illegal substance. Similarly, FMLA excludes routine medical care, such as medical checkups.
An FMLA leave is unpaid but includes uninterrupted health insurance coverage. Employees who take this leave can, after up to 12 weeks, return to their original job or an equivalent job with the same employer without penalty. Although FMLA grants 12 weeks of leave, the 12 weeks don't have to be taken consecutively. They can be used throughout a 12-month period as needed.
Are there additional provisions for military families?
An eligible employee whose spouse, child or parent has been notified of an impending call or order to covered active military duty or who's already on covered active military duty may use the 12 weeks of FMLA leave for reasons related to or affected by the family member's call or service. Qualifying circumstances include:
- Short-term deployment
- Military events and activities
- Child care and school activities
- Financial and legal activities
- Rest and recuperation
- Post-deployment activities
- Additional activities that arise out of active duty, as long as the employer and employee agree on the reason as well as the timing and duration of the leave
In addition, 26 weeks of military caregiver leave (also known as covered service member leave) may be given to care for a covered service member or veteran who has a serious health issue.
Who's covered by FMLA?
In general, FMLA covers employees who:
- Work for a for-profit or nonprofit private-sector organization that has at least 50 employees who work within 75 miles of the employee's worksite in 20 or more workweeks in the current or preceding calendar year
- Work for a for-profit or nonprofit public or private school, regardless of total number of employees
- Have worked for the organization or school for at least 12 months, including at least 1,250 hours of service in those 12 months
Part-time and temporary employees are covered, as well as U.S. workers who are employed by organizations based in other countries — as long as they meet the above criteria.
What does FMLA require from employers?
If your nonprofit is subject to FMLA, you must notify employees of their FMLA entitlement both by displaying the Department of Labor's informational poster and by distributing information to employees individually. If any employees speak a language other than English, this information should be accessible to them as well.
If the need for leave is foreseeable, such as a scheduled surgery or the birth of a child, employees are required to submit a leave request as they would for any non-FMLA leave. If the need for leave is unforeseeable, such as a medical emergency, you may ask for documentation after the fact. You may also ask for documentation of the family relationship if an employee is requesting FMLA leave to care for an immediate family member.
Upon the employee's return from FMLA leave, you're required to return him or her to an equivalent position with equivalent pay, benefits, and other employment terms and conditions.
If an employee with a disability needs leave or a modified schedule beyond what's provided by FMLA and/or your organization's benefits program, you may be required to grant the request as a reasonable accommodation (as long as it doesn't cause undue hardship).
As with most regulations, the rules governing FMLA are complex and detailed. To learn more, check out this FMLA guide for employers from the Department of Labor. Also review state laws concerning employee leave. For example, employees in California may be eligible for coverage under the California Family Rights Act (CFRA) and/or pregnancy disability leave.
This article draws on the expertise of Grace Davies, a Minneapolis-based attorney with special interest in product liability, medical malpractice and employment discrimination.
U.S. Department of Labor: The employer's guide to the Family and Medical Leave Act
U.S. News & World Report: 6 things you need to know about the Family and Medical Leave Act by Jada A. Graves (2013)
U.S. Department of Labor: Fact Sheet #28: The Family and Medical Leave Act (2012)
U.S. Government Publishing Office: The Family and Medical Leave Act of 1993