Due to the nature of our industry, rife with part-time or intermittently scheduled employees, many tend to struggle understanding and managing Family and Medical Leave Act, more commonly referred to as FMLA.

It is imperative that you understand this and have a process in place to ensure you’re compliant.

What is FMLA?

FMLA acts a safeguard for eligible employees by providing twelve weeks of unpaid, job-protected leave during a twelve-month period.

It can be used for the following life situations:

• Pregnancy, prenatal medical care, or childbirth
• Care for self, spouse, child, or parent with a serious health condition
• Placement of a child for adoption or foster care
• Military Family Leave

Military Family Leaves includes two types of leave: Qualifying exigency leave and military caregiver leave. Qualifying exigency leave may be used when the “employee’s spouse, son, daughter, or parent is on covered active duty or has been notified of an impending call or order to covered active duty.”

Military caregiver leave applies when an eligible employee will be caring for a covered service member with a serious injury or illness. For this circumstance only, employees may receive up to twenty-six workweeks of leave during a single twelve-month period.

Who qualifies for FMLA?

To be eligible for FMLA, employees must meet the following requirements:

• The employee works at a site with at least 50 employees within 75 miles;
• The employee has been with the company for twelve months;
• The employee has worked 1,250 hours in the last twelve months.

Fines and Penalties

The past few years have seen a rise in the number of FMLA-related lawsuits. And with that increase, more employers are facing fines and penalties.

In the restaurant industry alone, we’ve seen cases levied against a range of restaurants – from small, independent companies to larger, multinational operations. So, it is essential that you have a process in place to handle this seamlessly!

FMLA Process

Step 1: The employer must display required FMLA postings.

• Employers are required to post the U.S. Department of Labor’s FMLA Poster in plain view for all employees and applicants to view
• Employers must provide a general notice containing the same information that is listed in the poster, in its employee handbook (or other written material about leave and benefits)

Note: The poster and general notice may be electronically distributed so long as the above-mentioned requirements are met.

Step 2: Upon an employee’s request for leave under FMLA or the employer learns the employee’s leave may be for an FMLA qualifying reason, determine if the employee is eligible.

Step 3: Within five business days of the initial request for leave or of learning that an employee’s leave may be for an FMLA qualifying reason, provide Eligibility and Rights & Responsibility Notices* to the employee.

Step 4: The employer must notify the employee if a certification* is required and provide the employee 15 calendar days to return the certification.

Step 5: Upon receiving the certification, the employer must determine if the leave request is for an FMLA qualifying reason.

Step 6: Within five business days of receiving the certification, the employer must provide the employee with the Designation Notice* indicating if the leave is approved or denied.

Step 7: While the employee is on FMLA leave, the employer must maintain the employee’s health benefits. The employee must continue to pay whatever share of group health plan premiums that the employee paid prior to FMLA leave. The employer must provide the employee with advance written notice of the terms and conditions under which these payments must be made.

Step 8: If the employee is using FMLA for their own serious health condition, a fitness-for-duty certification or a return to work note from their physician can be required to return back to work.

Step 9: Upon receiving the certification/return to work note, the employer must reinstate the employee to the same or an equivalent position at the end of their leave. If an employee is taking FMLA for a family member’s serious health condition or military leave, fitness-for-duty certification does not apply. Reinstate the employee to the same or an equivalent position at the end of their leave.

Step 10: Maintain proper recordkeeping that includes the following:

• Basic payroll and identifying employee data, including:
  • Name, address, and occupation;
  • Pay rate and terms of pay;
  • Hours worked each pay period;
  • Payroll deductions from wages; and
  • Total compensation paid.
• Dates of FMLA leave
• Hours of FMLA leave (if taken intermittently – less than a day)
• Copies of FMLA notices
• Any documents explaining the employer’s FMLA policies
• Health premium payment records
• Records of any dispute between the employer and employee regarding the designation of leave as FMLA leave, such as emails or other written statements.

*All FMLA forms can be found in the Forms & Templates section under Benefits

Refer to The Employer’s Guide to The Family and Medical Leave Act for more detailed definitions and thorough guidance on how to administer FMLA.

Carrie Luxem

Restaurant HR Group