Navigating the Family and Medical Leave Act (FMLA)

 

Since 1993, the Family and Medical Leave Act ("FMLA") has served as the baseline for balancing the competing demands of a modern workplace with the essential health and care needs of families. Yet, decades after its enactment, its complex web of regulations, strict notice timelines, and intricate intersection with other employment laws remain a frequent source of confusion and costly litigation. Often, FMLA requirements intersect directly with other laws, such as the Americans with Disabilities Act (ADA), or state workers' compensation laws, adding more complexity to leave administration. Below, we cover the general standards of the FMLA.

Which employers are covered by the FMLA? 

Private employers are covered under the FMLA is they have (50) or more employees on the payroll during twenty or more calendar workweeks in either the current or the preceding calendar year. This headcount rule operates alongside a strict geographic boundary requiring those fifty individuals to be employed within a seventy-five-mile radius of the the employee's worksite.  Public agencies, including federal, state, and local government entities and educational institutions, are subject to these statutory requirements regardless of their total employee headcount. And, significantly, the legal definitions governing covered entities extend accountability directly to individual supervisors, joint employers, and corporate successors.

Who is eligible for FMLA leave?

To successfully qualify for job-protected leave, an individual worker must satisfy a strict triad of metrics immediately preceding the requested time off. First, the worker must have completed at least twelve months of prior service with the company. These months need not be completely consecutive, as federal regulations permit an organization to look back across the past five years to determine if this baseline service metric has been achieved. Second, the employee must have physically performed a minimum of twelve hundred and fifty (1250) actual hours of work during the twelve-month period immediately preceding the start of the leave. Paid time off, sick leave, and vacation days are explicitly excluded from this total, as the hours metric is determined strictly by actual hours worked under the Fair Labor Standards Act. Third, the individual must be assigned to a facility where the organization maintains at least fifty employees within a seventy-five-mile radius.

When and for what purposes may FMLA leave be taken?

Eligible workers are legally entitled to take up to (12) twelve weeks of unpaid, job-protected leave within a designated twelve-month period. The law establishes explicit grounds for this time off, including the birth of a child and subsequent newborn care, the placement of a child with the employee for adoption or foster care, caring for an immediate family member with a serious health condition, or managing the employee's own serious health condition that renders them unable to perform essential job functions. If both spouses work for the same covered employer, their combined entitlement for child bonding or newborn care is capped at a shared twelve weeks.

To rise to the level of a serious health condition involving continuing treatment, the medical situation must entail a period of incapacity extending more than three consecutive calendar days combined with either two doctor visits occurring within thirty days of the onset of incapacity (with the first visit happening within seven days) or a single doctor visit within the first seven days coupled with a regimen of continuing treatment, such as prescription medication. Chronic health conditions require a minimum of two diagnostic or treatment visits per year to a healthcare provider. Specialized military leave provisions further expand these protections, allowing up to twelve weeks of leave for qualifying exigencies arising from active deployment, and up to twenty-six workweeks of unpaid leave in a single twelve-month period for an eligible next-of-kin caregiver to care for a covered service member who sustained a serious injury or illness in the line of duty. Throughout any protected absence, a employer is legally mandated to maintain the worker's group health insurance benefits under the exact same terms as if they had remained continuously active. Upon a timely return, the worker retains an absolute right to be restored to their original position or to an equivalent, comparable role with identical pay, benefits, and material working conditions.

The FMLA allows employees to utilize their leave intermittently or through a reduced schedule when medically necessary. Only the exact duration of hours or days physically taken away from the workplace may be charged against the employee's available FMLA leave entitlement. If an employer's operational scheduling requires an employee on intermittent leave to miss an entire shift, federal guidelines dictate that only the hours of the actual medical absence can be charged to the employee's leave, with the remainder categorized as uncompensated time off granted by the employer. Organizations may dock partial days from an exempt employee's salary for intermittent absences without placing their exempt status in jeopardy. Workers utilizing this framework have an ongoing obligation to make a reasonable effort to schedule their medical treatments to minimize operational disruptions. To accommodate recurring absences seamlessly, employers possess the temporary right to transfer the worker to an alternative position with equivalent pay and benefits.

Courts have been clear that an employer's policy demanding a doctor's note for each individual intermittent absence is an unlawful circumvention of standard statutory protections. Generally, employer's may request formal recertification of chronic or episodic conditions no more frequently than every thirty (30) days, and such requests must explicitly coincide with an actual employee absence. A major exception governs situations where a medical provider explicitly states a minimum duration on the initial leave documentation, binding the employer to wait until that time frame expires before seeking an update. However, an absolute six-month rule allows an employer to request a recertification in connection with an absence regardless of the condition's designated timeline. Recertifications may be requested by an employer in less than thirty (30) days only if the employee formally seeks an extension, if underlying operational circumstances change significantly, or if the organization uncovers objective information casting doubt on the leave's legitimacy. If seeking clarification or authentication of an existing certification provided by an employee's medical provider, a human resources professional or leave administrator may contact the medical provider directly with HIPAA-compliant consent, but the employee's immediate supervisor is strictly prohibited from making such contact. If an employee submits an incomplete or insufficient medical certification, the employer must issue a precise written notice describing the deficiency and afford the worker seven (7) calendar days to cure the deficiency.

What are some common legal issues that arise with FMLA leave?

There is a common misconception among managers is that an employee can be automatically terminated the moment their twelve-week FMLA leave is exhausted and they cannot return to full duty. This action directly triggers immediate exposure under the Americans with Disabilities Act, which mandates that employers actively engage in an informal, interactive process to identify precise functional limitations and evaluate potential accommodations. Federal guidelines and case law recognize that a temporary extension of unpaid leave or a temporary period of light-duty work can serve as a required reasonable accommodation under the ADA, extending an employee's leave entitlement. So, simple because an employee may not be able to return follow a twelve-week absence, the employee may have other protections available to extent leave. is legally bound to explore these options unless it can conclusively demonstrate that doing so would impose an undue hardship, defined as a significant operational difficulty or expense. However, the right to accommodation is not absolute, as federal courts uniformly hold that a worker is not entitled to their first-choice accommodation if another effective alternative exists, and requests for indefinite, unpredictable, or perpetual leave are inherently unreasonable and constitute a clear undue hardship.

Complexities can also arise with an employee whose absence is cause by a workers' compensation injury. For example, if an employer fails to formally issue the required FMLA notices and designate the workers' compensation time off accordingly, the worker retains their full twelve weeks of FMLA leave to utilize sequentially after their workers' compensation absence ends. Employers may offer a temporary light-duty position to an injured worker to mitigate workers' compensation exposure, but they cannot compel the employee to accept it in lieu of FMLA leave. While an employee has the absolute right to reject light duty and remain on unpaid FMLA leave without penalty from the employer, refusing a role that falls safely within their medical restrictions may impact workers' compensation benefits.

Although the FMLA contains robust protections insulating employees from adverse actions due to discrimination or retaliation, the FMLA does not serve as a license for misconduct or deception. For example, an employer may be protected from liability for retaliation claims if it conducts a thorough, impartial investigation and forms a good-faith belief that an employee is fraudulently using or abusing leave, even if that conclusion is ultimately discovered to be mistaken. Publicly accessible social media postings are a valid resource for checking the validity of FMLA leave, although several states explicitly prohibit companies from demanding account passwords or forcing co-workers to pull private content. Employer's must strictly avoid making independent medical diagnoses based on social media photos. An employer's failure to articulate clear, consistent, and unshifting reasons for an adverse action will completely destroy the honest belief defense and expose the employer to a claim of pretext.

For employees, often after taking FMLA employee's are held to performance standards without taking into account time off for leave, which is impermissible. Or they are moved to different shifts, work location or working hours, without legitimate reasons or in violation of the FMLA. 

Because of the complexities of the law and its interactions with other laws, it's important to have sound legal advice for each situation to understand your rights or your legal obligations. Our Utah employment lawyers have significant experience with FMLA litigation and counseling, and can help employers or employees navigate the FMLA.  To speak with an employment lawyer, email Stavros Law at scheduling@stavroslaw.com, or call us at (801) 758-7604 or visit us and send a contact email at stavroslaw.com.