(Free Download) FMLA Eligibility Checklist: Guide to the Family & Medical Leave Act

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(Free Download) FMLA Eligibility Checklist: Guide to the Family & Medical Leave Act

Do you know whether an employee meets the basic eligibility requirements of the Family and Medical Leave Act (FMLA)? Our FMLA eligibility checklist will help you determine if an employee qualifies for a maximum of 12 weeks of unpaid, job-secured leave within a 12-month timeframe for specified family and medical purposes.

Download your free FMLA eligibility checklist and dive further into who (and who is not) eligible for FMLA leave.

What is FMLA?
HR’s role in FMLA leave
Understanding FMLA eligibility
Checklist: Determining employee eligibility for FMLA leave
Common mistakes to avoid when determining FMLA eligibility
Tips on managing FMLA leave

What is FMLA?

The Family and Medical Leave Act (FMLA) is a federal law in the United States that mandates certain employers provide eligible employees with unpaid, job-protected leave for specified family and medical reasons.

According to the U.S. Department of Labor, the FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave.”

Even though family and medical leave under the FMLA is unpaid, given the nature of this leave and how it impacts organizations and employees alike through paid benefits, it’s important as an HR professional to know what FMLA eligible employees are entitled to.

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Within a 12-month period, eligible employees can take 12 workweeks of leave for:

  • The birth of a child and to care for the newborn child within one year of birth
  • The placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement
  • To care for the employee’s spouse, child, or parent who has a serious health condition
  • A serious health condition that makes the employee unable to perform the essential functions of their job
  • Any qualifying exigency arising from the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty.”

Additional FMLA service member leave

Within a 12-month period, eligible employees can take 26 workweeks of leave to care for a covered service member with a serious injury or illness if the eligible employee is the service member’s spouse, son, daughter, parent, or next of kin (military caregiver leave).

Checklist: Determining Employee Eligibility for FMLA Leave

HR’s role in FMLA leave

As an HR professional, it’s essential to be well-versed in the FMLA, what it means, and which employees are eligible for several reasons:

  • Compliance: Failure to comply with the FMLA could lead to legal issues or penalties.
  • Employee relations: An eligible employee only needs to apply for leave under the FMLA during difficult times, such as when they need to care for a family member or recover from a serious health condition. Understanding FMLA and employee eligibility ensures you can support employees during their times of need, which will not only demonstrate the organization’s commitment to employee well-being but build a better employer brand through word-of-mouth referrals.
  • Communication and guidance: As an HR professional, you’re often the point of contact for employees who have questions about their rights and benefits, including FMLA. Ensure you can provide accurate information and guidance, ensuring they understand their entitlements and responsibilities and that you can communicate these to their managers and supervisors.
  • Policy development: Developing and implementing effective leave policies requires an understanding of FMLA, particularly which organizations are mandated to provide this support and which employees are eligible. Creating effective policies includes clearly defining eligibility criteria, outlining procedures for requesting leave, and ensuring proper record-keeping.
  • Dispute resolution: While it’s always ideal to avoid the need for dispute resolutions, this is not always possible. In situations where there are disputes or grievances related to FMLA leave, your knowledge of the law and employee eligibility will be invaluable in resolving the matter compliantly and fairly.

HR tip

An in-depth understanding of FMLA with clear eligibility criteria and procedures already in place ensures that HR professionals can support employees during difficult times when stress levels and emotions are high. Prepare now to ensure compliance and support down the line.

Understanding FMLA eligibility

To be eligible for FMLA leave, an employee must meet specific requirements relating to their employer, how long they have been employed at the organization and the number of hours they work.

Here are the basic eligibility criteria you should know, and which should be included in your organizational policies.

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Employer coverage:

  • All public agencies, including local, state, and federal employers, and local education agencies (schools) are subject to the FMLA
  • Private-sector employers who have 50 or more employees in 20 or more workweeks in the current or preceding calendar year.

Employment duration:

  • The employee must have worked for their employer for at least 12 months
  • This 12-month period does not have to be consecutive, but should not include any breaks in service longer than seven years, unless the break is due to military service or is subject to a written agreement stating the employer’s intent to rehire the employee after the break.

Hours worked:

  • The employee must have completed at least 1,250 hours of service for their employer during the 12-month period immediately preceding the start of the FMLA leave.
  • This equates to an average of about 24 hours per week over a year.

Worksite proximity:

  • The employee must work at a location where the employer has 50 or more employees within a 75-mile radius.

Know the ‘key employee’ exception to the FMLA

What it is:

The key employee exception allows employers to deny job restoration to certain highly compensated employees under specific circumstances, even if they are otherwise eligible for FMLA leave.

Who it applies to:

According to the FMLA, a key employee is:

  • A salaried employee
  • Among the highest paid 10% of all employees
  • Lives within 75 miles of the worksite.

Why it’s important:

While it is never pleasant to deny job restoration, particularly if an employee is asking for FMLA leave, which means either they or a family member is facing a health emergency, it may become necessary if the person holds a key position and their absence will be detrimental to the organization. Under these circumstances, the position needs to be filled and therefore the role cannot be held open until the key employee returns.

To deny job restoration to a key employee, an employer must meet the following conditions:

  1. Determine that the employee meets the key employee criteria based on compensation and location.
  2. Establish that the employee’s absence from the organization would cause “substantial and grievous economic injury” to the organization’s operations.
  3. Notify the employee, in writing, of their status as a key employee and the potential denial of job restoration when they request FMLA leave or as soon as possible thereafter.
  4. Provide the employee with an opportunity to decide whether to continue with the leave, knowing that they might not be reinstated to their position.
  5. If the employee chooses to continue with the leave, the employer must notify them again, in writing, of their final decision to deny job restoration, along with the reasons for the decision, before the leave ends.

Note: Employers should carefully assess the potential impact of a key employee’s absence and consult with legal counsel before denying job restoration under the FMLA.

Your role as an HR professional:

  1. Be aware of this exception and know how to apply it when necessary
  2. Ensure that the key employee exception is clearly documented in your organization’s FMLA policy
  3. Communicate transparently and empathetically with the affected employee, keeping their rights and well-being in mind
  4. Be prepared to explore alternative solutions, such as temporary reassignment or modified work schedules, to minimize the impact on both the employee and the organization.

FMLA eligibility checklist: Determining eligibility for FMLA leave

Use this checklist to finalize your FMLA procedures and to determine whether an employee is eligible for FMLA leave. 

Checklist: Eligibility for FMLA Leave

Download your free FMLA Leave checklist by clicking the button below:

Common mistakes to avoid when determining FMLA eligibility

As an HR professional, you’ve by now recognized that FMLA leave is protected and important, but there is also room for abuse. Given the length of FMLA leave and that it is protected leave, let’s review the common mistakes that can creep in when determining FMLA eligibility and how to avoid them.

Common mistakeDo this
Inadequate communication of FMLA policies: Ensure FMLA policies are clearly documented and communicated to employees through channels such as employee handbooks, onboarding materials, or intranet resources.Conduct regular FMLA training sessions for managers and supervisors to ensure they understand their roles and responsibilities.
Failing to recognize FMLA-qualifying events: Understand the various qualifying reasons for FMLA leave, and be proactive in identifying potential FMLA situations when employees request time off or report health issues.Remember that employees may not always explicitly mention FMLA when requesting leave, but they should qualify if they are eligible. It is your role to ensure they do.
Incorrectly calculating eligibility or leave duration: Follow the outlined steps for determining eligibility, and use accurate records to calculate hours worked and leave duration.Employees must have completed at least 1,250 hours of service during the 12 months immediately preceding the leave, but be aware of special circumstances, such as intermittent or reduced schedule leave, and calculate leave accordingly.
Inconsistent application of FMLA policies: This is important for equitability across the organization and should include response time to requests, documentation requirements, and return-to-work procedures.Regularly review FMLA processes and make adjustments to policies and processes to maintain consistency
Improper handling of medical certifications: Follow the proper process for requesting and reviewing medical certifications, including providing employees with reasonable deadlines for submission.Do not request more information than is legally allowed, and maintain the confidentiality of employees’ medical information.
Not tracking and managing intermittent leave effectively: Intermittent leave is not always accurately captured. If an employee is eligible for FMLA leave and it is not taken consecutively, this could become problematic and HR could lose sight of what is owed to employees or medical recertification confirming the need for medical leave may be required. This can be arduous and costly, particularly if it should not have been necessary.Communicate with employees about the need for timely notice and implement a reliable system to track intermittent leave usage, including hours or days taken.
Violating employee rights upon return to work: Reinstate employees returning from FMLA leave to their original job or an equivalent position with the same pay, benefits, and other employment terms.Do not retaliate against employees who take FMLA leave, and maintain a supportive environment for their return.

Tips on managing FMLA leave

We’ve highlighted how poor communication, unclear and inconsistent policies and the improper handling of data can be common errors when creating and maintaining an FMLA policy. The best practice is to ensure that these issues do not happen. However, there are a few other ways to create and streamline an effective FMLA process.

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If you are serious about creating and maintaining an equitable FMLA leave policy, consider these top actions.

  • When an employee applies for FLMA leave for medical reasons, encourage healthcare providers to provide as much information as possible about the expected frequency and duration of intermittent leave on the medical certification. This will ensure the employee’s absence can be planned for and it may avoid recertifications.
  • Regularly review the leave usage to ensure it aligns with the medical certification and identify any discrepancies, and address any concerns about leave usage or scheduling promptly and professionally.
  • Foster a supportive environment where employees feel comfortable discussing their medical needs and FMLA leave.
  • Address patterns of misuse by monitoring leave usage for signs of potential abuse, such as taking leave only on Fridays or before holidays. In cases of suspected abuse, follow up with the employee and, if necessary, request recertification or a second opinion from a healthcare provider.
  • Educate managers and supervisors about FMLA regulations, intermittent leave, and their responsibilities in managing such leaves. Encourage them to communicate any concerns about potential abuse to HR for proper handling.
  • Keep detailed records of all FMLA leave requests, approvals, medical certifications, and employee communication. Maintain these records in compliance with the law, ensuring confidentiality and security.

Key takeaways

  • FMLA is a federal US law. The Family and Medical Leave Act (FMLA) is a federal law in the United States that mandates certain employers provide eligible employees with unpaid, job-protected leave for specified family and medical reasons.
  • FMLA allows for extended leave depending on the circumstances. FMLA eligible employees can take up to 12 workweeks of leave within a 12-month period, or 26 workweeks of leave to care for a covered servicemember with a serious injury or illness.
  • Some roles are too important and are exempt from FMLA. There is a ‘key employee’ exception to the FMLA that allows employers to deny job restoration to certain highly compensated employees under specific circumstances.
  • Determining FMLA eligibility is very formulaic. HR professionals should be prepared to use a checklist to determine employee eligibility for FMLA leave, considering factors such as employer coverage, employee tenure, hours worked, and the reason for the leave.
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