Employers are not explicitly required to have a policy outlining their Family and Medical Leave Act (FMLA) process, but most employers covered under the FMLA choose to have such a policy because it helps:
- Maintain compliance with applicable laws
- Clearly define the process to ensure standardization and consistent application
- Sets expectations for employees so they understand their rights and obligations, which can reduce questions
- Helps HR and Managers understand the process and direct employees when questions or needs arise
When drafting your policy, there are two areas to consider: Compliance and Function. Employers should seek to draft a compliant policy containing all the required information. And to be functional, it should be easy to understand and access.
Policy compliance
While no set requirement exists for a written FMLA policy, certain information should always be included.
Start by defining the foundational information:
- Employee Eligibility: Define which employees can take leave under the FMLA.
- Qualifying Reasons for Leave: Define the reasons an employee can utilize leave under the FMLA.
- Covered Relationships: Define the family members of an employee for whom the employee can take FMLA leave, including the employee’s spouse, parent, or child.
- Leave Entitlement: Define the amount of FMLA leave an employee can utilize in a 12-month period.
Be sure to include responsibilities for employees:
- Notice: Employees must notify their employer of the need to take leave. The employee must provide sufficient information to the employer that leave is needed but doesn’t necessarily have to mention FMLA. An employer may outline specifics in the FMLA policy, including the type of notice (e.g., written) and the timing of the notice, which may vary depending on whether the need for leave is foreseeable or unforeseeable.
- Certification: The employer may require the employee to submit a medical certification from a health care provider when the leave is for the employee’s own serious health condition or to care for a family member with a serious health condition. Other types of documentation may be required in some circumstances.
- Return-To-Work Release: When the leave is for the employee’s own serious health condition, an employer may have a uniformly applied policy or practice that requires all similarly situated employees to obtain and present certification from the employee’s healthcare provider that the employee is able to resume work. Note that an employer who implements this requirement must provide notice to the employee in the designation notice but should also detail the requirements in the FMLA policy.
And don’t forget to define your responsibilities and requirements as an employer providing FMLA leave:
- Benefit Protection: The FMLA policy should state that if an employee has health insurance through an employer’s group health plan, they can continue their group health insurance coverage during FMLA leave on the same terms as if they had continued to work. Other benefits, such as life insurance, disability insurance, sick leave, vacation, educational benefits, pensions, and retirement/401(k), must be available when the employee returns from leave.
- Job Restoration: The policy should include language that confirms an employee is entitled to return to their same job or to an equivalent job (i.e., a job that is virtually identical to the employee’s original job in terms of pay, benefits, and other employment terms and conditions).
- Employee Protections: The regulations prohibit the employer from various actions, which should be spelled out in the employer’s FMLA policy. For example, an employer may not interfere with, restrain, or deny any FMLA right and may not discriminate or retaliate against an employee utilizing FMLA. There are many other rights and protections for an employee taking (or attempting to take) FMLA.
Other areas will be good to clarify and define:
- Calendar Method: The FMLA regulations allow an employer to choose one of four options for calculating the 12-month period (leave year) in which the 12 weeks of FMLA can be used. The policy should include the option your organization chooses.
- Use of Paid Leave: FMLA is unpaid but can be supplemented. The FMLA policy should state the circumstances under which an employee may use paid leave during FMLA and/or when an employee is required to utilize any available paid leave.
- Intermittent Leave for Bonding: Intermittent or reduced-scheduled leave for bonding may only be taken with employer approval, so an employer should indicate whether intermittent (or reduced-scheduled) bonding leave is allowed in the policy.
- Shared FMLA for Spouses: An employer’s FMLA policy should include whether spouses (who are both employed by the employer) are required to share a combined total of 12 weeks of FMLA during any 12-month period when leave is for bonding (birth, adoption, or foster care of a child), or to care for the employee’s parent with a serious health condition.
- Key Employee: If an employer chooses to deny job restoration to key employees (salaried, FMLA-eligible employees who are among the highest-paid 10% of all the employees employed by the employer within 75 miles of the employee’s worksite), that language must be included in the FMLA policy.
- Other Leaves and Benefits: The FMLA policy should include language establishing how an employee’s FMLA rights will interact with and be impacted by other leaves and pay benefits, including when and how FMLA will run concurrently with company-provided leaves, state/local leaves, short-term disability, PTO or sick leave, and any statutory paid benefits. Employers should include a statement that the FMLA policy will be administered in compliance with all FMLA requirements and other applicable laws (e.g., ADA, PWFA ).
Policy functionality
Employers have flexibility in how they incorporate all this information into their FMLA policy, but they must ensure that the information aligns with their unique leave of absence process.
Employers often draft the policy in the same sequence as an employee would experience during the typical leave of absence process. All of the key information above can be fit into the applicable section of the policy so that it flows smoothly and provides an employee with an overall understanding of the broader leave of absence process.
Employers may also want to include a section of definitions that offers detailed information about various terms used in the policy, such as serious health conditions, covered relationships (i.e., spouse, parent, child), and any other terms that may confuse employees.
Lastly, employers should ensure that all employees have access to the FMLA policy and know where to find it – either in a handbook or on the company intranet.
On-going reviews
Once your employee-facing FMLA is drafted and published, schedule periodic reviews and updates to ensure it remains compliant and aligns with the employer’s FMLA process.
How can Marsh McLennan Agency’s Absence, Disability, & Life Practice help?
Please contact us for additional information on drafting your FMLA policies or to better understand how MMA ADL can assist with drafting or reviewing your FMLA and/or other LOA policies.
Marsh McLennan Agency’s Absence, Disability, and Life Specialty Practice helps clients understand, integrate, measure, and manage leaves of absence, time away from work, disability, and life insurance programs. Specializing in absence for over 20 years allows us to help employers meet employee expectations, reduce compliance risk, and manage costs. We are here to be your trusted partner, allowing you to prioritize what truly matters – your people.
