The Family and Medical Leave Act (FMLA) is federal legislation enacted in 1993 that provides eligible employees with unpaid, job-protected leave for specific family and medical reasons. For managers of restaurants, retail stores, and other hourly-staffed businesses, FMLA compliance is complex but non-negotiable. Violations of this law carry significant penalties and create serious legal exposure.
FMLA Eligibility Requirements
Covered Employers
Businesses with 50 or more employees within a 75-mile radius
Eligible Employees
Employees who have:
- Worked for employer for 12 months (need not be consecutive)
- Worked at least 1,250 hours in past 12 months
- Work at location where employer has 50+ employees within 75 miles
Leave Entitlement
Up to 12 weeks of unpaid leave in a 12-month period for:
- Birth and care of newborn
- Adoption or foster care placement
- Care for spouse, child, or parent with serious health condition
- Employee's own serious health condition
- Qualifying military exigencies
Special military provision: Up to 26 weeks in a single 12-month period to care for covered service members with serious injury or illness.
What Qualifies as a "Serious Health Condition"?
FMLA defines serious health condition as:
Inpatient care: Overnight stay in hospital, hospice, or residential medical facility
Continuing treatment: Incapacity for more than 3 consecutive days PLUS either:
- Two or more treatments by healthcare provider, OR
- One treatment plus continuing supervised regimen
Chronic serious conditions: Requires periodic visits to healthcare provider, continues over extended time, may involve episodic incapacity (examples: asthma, diabetes, epilepsy)
Permanent/long-term conditions: Requiring continuing supervision even if treatment ineffective (examples: Alzheimer's, terminal cancer)
Multiple treatments: For restorative surgery after injury or for condition likely to result in incapacity of more than 3 days without intervention (examples: chemotherapy, physical therapy for severe injury)
What doesn't qualify: Common cold, flu, earache, upset stomach, minor ulcers, headaches (except migraines), routine dental or orthodontia, periodontal disease.
Employer Compliance Obligations
1. Post Required Notices
Display a FMLA poster in your workplace where employees can readily see it. It must be available in Spanish and other languages so all employees can read it.
2. Provide Employee Notice (Within 5 Business Days)
When your employee requests leave or employer learns situation might qualify for FMLA, provide:
- General rights notice: Explain FMLA rights and responsibilities
- Eligibility notice: State whether your employee is eligible
- Rights and responsibilities notice: Detail the requirements for medical certification, use of paid leave, etc.
- Designation notice: Inform your employee whether leave is designated as FMLA (within 5 business days of sufficient information)
The US Department of Labor provides model forms for all required notices.
3. Request Medical Certification
You may require an employee to provide certification from healthcare provider, but allow 15 calendar days (which you can extend by 15 additional days if needed) to respond.
You can require recertification every 6 months for ongoing conditions, or more frequently if:
- Employee requests extension
- Circumstances change significantly
- Employer receives information casting doubt on the reason for leave
4. Maintain Health Benefits
You must continue providing health insurance on the same terms as if your employee were working. The employee must continue paying their share of premiums.
5. Restore Position
When the leave is complete, you must return your employee to the same or similar position with equivalent pay, benefits, and terms/conditions.
Employee Responsibilities
- Provide 30 days advance notice when leave is foreseeable (or as soon as practicable for emergencies)
- Comply with call-in procedures
- Provide sufficient information to determine if FMLA applies
- Provide requested medical certification within 15 days
- Provide periodic updates if leave extended
- Provide fitness-for-duty certification before returning (if required by employer policy)
Types of FMLA Leave
Continuous Leave
Your employee takes leave in one uninterrupted block. Example: 6 weeks off for surgery and recovery.
Intermittent Leave
The leave is taken in separate blocks. Employee uses only leave needed. Example: chemotherapy every Friday for 6 months.
Tracking intermittent leave: Each absence counts toward 12-week entitlement. If employee takes Mondays off, 12 Mondays = 12 weeks used.
Employer rights: May temporarily transfer employee to alternative position with equivalent pay/benefits better suited to intermittent leave.
Reduced Schedule Leave
Employee works less than normal schedule. Example: Full-time employee reduces to 4 hours daily during physical therapy.
Tracking reduced schedule: Hours not worked count toward entitlement. Working 4 hours instead of 8 daily = 4 weeks used after 8 weeks on a reduced schedule.
Prohibited Actions: FMLA Interference and Retaliation
- Deny eligible employee FMLA leave
- Discourage employee from using leave
- Count FMLA leave in attendance policy
- Use FMLA leave as negative factor in employment decisions
- Retaliate against employee for using FMLA
- Require employee to accept light duty instead of FMLA leave
Example violations:
- "If you take this leave, don't expect to be promoted"
- "Are you really sure you need this leave?"
- Three-absence policy that counts FMLA-protected absences
- Terminating employee shortly after FMLA return without clear, documented performance reasons
Penalties include back pay, damages, and reinstatement. DOL actively investigates FMLA complaints.
Multi-Location Business Considerations
50-employee radius: Count all employees within 75 miles, not just at a single location. For a business with 5 locations of 15 employees each, all within 75 miles, FMLA applies to all 75 employees.
Worksite determination: The employee's worksite is where they report, not corporate headquarters. If the employee works at a location that has fewer than 50 employees within 75 miles, they're not eligible, even if the company has 1,000 employees nationwide.
Joint employment: If you use staffing agencies or PEOs, determine whether joint employment exists. Both organizations may have FMLA responsibilities.
Common FMLA Compliance Mistakes
Not recognizing a FMLA situation: The employee says "I need time off for my father's heart surgery." The manager thinks it's personal leave and doesn't provide FMLA paperwork. The employee loses FMLA protections they're entitled to.
Requiring too much medical information: Demanding complete medical records or specific diagnosis violates employee privacy.
Denying leave to ineligible employees and stopping there: Even if the employee doesn't qualify for FMLA, they may have state law rights or company policy leave.
Calling employee repeatedly during leave: Occasional status checks are fine. Daily calls are harassment.
Not designating leave as FMLA: If you don't designate qualifying leave as FMLA, you lose the ability to count it toward the 12-week limit.
Firing after FMLA return: If performance issues exist, document them thoroughly before and during leave. Firing an employee shortly after FMLA return looks retaliatory even if legitimate reasons exist.
