FMLA: What Employers Need to Know

With a heightened awareness of workplace rights, a growing number of employees who are striving to balance the demands of job and family are turning to the Family & Medical Leave Act.

With a heightened awareness of workplace rights, employees who are striving to balance the demands of job and family are turning to the Family & Medical Leave Act (FMLA). Five years ago, the last year for which data is available, an estimated 94 million employees were covered under FMLA, and up to 13 million Americans took leave under the law, reports the U.S. Department of Labor (DOL).

Federal FMLA grants eligible full-time employees (those who have worked at least 1,250 hours during a 12-month period) at organizations with a workforce of 50 or more up to 12 weeks of unpaid leave for:

  • the birth and care of a newborn
  • the adoption of a child or foster child
  • the care of an immediate family member (spouse, child or parent) with a serious health condition
  • personal medical leave because of a serious health condition

"We're definitely seeing an increase in employee awareness from a job-protection perspective," says Terrie Sorensen, vice president of disability product management, group insurance, at Prudential Financial (No. 16 on The DiversityInc Top 50 Companies for Diversity).

According to Integrated Benefits Institute, employers averaged 189 FMLA claims per 1,000 employees in 2008, up from 128 claims per 1,000 employees in 2007.

What's Fueling the Trend?

Since its passage in 1993, the type of leave that falls under FMLA has expanded to include two relatively new military entitlements. One provision allows family members of injured service members to take up to 12 months of unpaid time off to care for them; the other is "qualified exigency leave," which is 12 weeks of unpaid time off to prepare for deployment.

The DOL has also updated the FMLA definition of "serious health condition" as one that includes any illness, injury, impairment or physical/mental condition requiring incapacitation for more than three consecutive days involving either inpatient care or "continuing treatment" by a healthcare provider. The definition of continuing treatment is lengthy and complicated, but a few examples include:

  • any period of incapacity due to pregnancy (including severe morning sickness) or time needed for prenatal visits
  • a period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective
  • any period of absence to receive multiple treatments, such as restorative surgery after an accident or injury, dialysis for kidney disease or chemotherapy
  • allergies, migraines or mental illness resulting from stress can also be considered serious health conditions if inpatient care or continuous treatment is needed

Another factor contributing to the uptick in FMLA claims is an increased awareness among employers to report claims accurately, explains Kimberly Mashburn, vice president of strategic partnerships for Prudential Group Insurance, which provides absence-management administration services. A former hospital administrator and manager of physician practices, Mashburn says she discovered 15 years ago when she tried to access benefits for a 400-employee practice "just how complex this can be."

Who's Taking FMLA?

Although detailed FMLA participation data is unavailable, baby boomers that care for aging family members is one predominant group, says Prudential. And their numbers are projected to grow in the coming decades.

According to Family Caregiver Alliance, an estimated 7 million Americans are currently caring for a parent, with one-third to one-half employed outside the home. But with the number of aging Americans projected to nearly double to 72.1 million by 2030 (19 percent of the population), reported the Administration on Aging, the number of eldercare givers requesting FMLA from employers is expected to rise as well.

It's not only boomers who've discovered the job-protection benefits of FMLA. Younger employees are taking leaves as well. "Gen X and, in particular, the Gen Y'ers are more interested in 'working to live' and really want more work/life balance. So they're more aware of their ability to take time off," says Mashburn. "As they learn that this law exists to protect their jobs while they are out of work, utilization has gone up."

In addition, women are more than twice as likely as men to have used FMLA. A National Coalition to Protect Family Leave telephone survey of 1,000 people nationwide found that 21 percent of women had personally taken FMLA versus 10 percent of men.

What Are FMLA Best Practices?

Review leave policies at least annually. "Make sure they include information about how to file a notice for a leave and that employees are aware of the forms that need to be completed when filing," advises Mashburn. "Often they don't align with the new regulations."

Stay current with the law. Employers must remain compliant with both federal FMLA laws and constantly changing state and other medical-leave requirements. State law compliance is crucial for companies that have multiple locations.

One of the more challenging issues, Mashburn says, involves intermittent absence (small increments of leave for a single illness or injury) versus reduced schedule (when, say, a parent needs to attend to a child with severe allergies during the spring).

Train management. Line managers especially must be well informed of their responsibilities when an employee asks to take a leave. "And it can be something very sudden, say, when an employee finds out a spouse was in a car accident and they need a leave from work," says Mashburn. "It's up to that manager to reach out to that employee to explain his or her rights under the Family & Medical Leave Act."

Maintain confidentiality. Although chronic absences and modified work schedules will be noticed by coworkers, employers are obligated not to disclose any employee medical information.

Consider outsourcing. With ever-changing regulations and requirements for calculations, "more employers are throwing their hands up and saying, 'We can't keep up with it all,'" says Sorenson. So the demand among employers for FMLA administration outsourcing has grown, reports Prudential, to minimize risk and avoid abuses.

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