PREPARE FOR FMLA

Steven Cesare, Ph.D.

A landscaper from Virgina called me the other day to tell me that his company would soon exceed the 50- employee threshold thereby requiring compliance with ObamaCare (ACA) and the Family Medical Leave Act (FMLA). Since both laws are beyond tedious, bureaucratic, and costly, they must each be addressed in granular detail with a company’s benefits provider. Due to space limitations, this posting will only cover a few of the basic elements of the FMLA, germane to the green industry, as a precursor to help landscaping companies begin their compliance path moving forward.

What employers are covered by the FMLA?

Private-sector employers who employ 50 or more employees, in 20 or more workweeks in either the current calendar year or previous calendar year.

Which employees are eligible to receive FMLA?

Employees are eligible if they work for a covered employer for at least 12 months, have at least 1,250 hours of service with the employer during the 12 months before their FMLA leave starts, and work at a location where the employer has at least 50 employees within 75 miles.

How much unpaid time off from work can eligible employees take under FMLA?

Up to 12 workweeks of continuous or intermittent leave in a 12-month period for any FMLA leave reason except military caregiver leave, and
Up to 26 workweeks of military caregiver leave during a single 12-month period.

What are the primary reasons for employees to take FMLA?

The birth of a child or placement of a child with the employee for adoption or foster care,
The care for a child, spouse, or parent who has a serious health condition,
A serious health condition that makes the employee unable to work, and
Reasons related to a family member’s service in the military, including
- Qualifying exigency leave – leave for certain reasons related to a family member’s foreign deployment, and
- Military caregiver leave – leave when a family member is a current servicemember or recent veteran with a serious injury or illness.

Per the FMLA, what is a “serious health condition”?

Conditions requiring an overnight stay in a hospital or other medical care facility;
Conditions that incapacitate you or your family member (for example, unable to work or attend school) for more than three consecutive days and have ongoing medical treatment (either multiple appointments with a health care provider, or a single appointment and follow-up care such as prescription medication);
Chronic conditions that cause occasional periods when you or your family member are incapacitated and require treatment by a health care provider at least twice a year; and
Pregnancy (including prenatal medical appointments, incapacity due to morning sickness, and medically required bed rest).

What are some key preliminary steps to take to prepare for the FMLA?

Verify that FMLA exposure is contained with your company’s EPLI policy;
Download and post the FMLA poster in English and Spanish;
Add FMLA content to the Leaves of Absence section in your Employee Handbook;
Download the current English and Spanish versions of the following FMLA forms: WH-380E, WH-380F, WH-381, WH-382, WH-384, and WH-385; and
Meet with your company benefits advisor to see how the FMLA integrates with any specific state laws, HIPAA, and workers compensation leave.

I am not overstating this point: There are innumerable features, caveats, and nuances of the FMLA, which ardently demand unqualified expertise from the company’s benefits provider to ensure complete legal compliance, since FMLA violations carry organizational and personal liability penalties.

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