The Heart and Soul of FMLA Lives in Small Businesses

vince dicecco

Vince is a dynamic and sought-after seminar speaker and author with a unique perspective on business development and management subjects, primarily in the decorated- and promotional-apparel industries. With 20+ years of experience in sales, marketing and training, he is an independent consultant to various decoration businesses looking to profit and sharpen their competitive edge. Visit his website or send an email to Vince@ypbt.com.

The next time your shop hits the peak of activity on any given day, stop for a moment, take a step back and focus on each of your employees individually. There’s Keith, dutifully loading and unloading T-shirts on your most productive machine. You think to yourself, “Man, I’d sure hate to lose him during crunch time.” You turn your attention to Samantha, working the phones while carefully filling out the necessary paperwork. “I could sure use three more like her,” you ponder. Then, there’s your shop manager and right-hand (wo)man, Jess, making sure things are running smooth as silk, even though occasionally the barked orders and language can get a little rough. “What would I ever do without Jess?”

Now imagine any one of them coming to you and telling you of a situation at home involving a family member. “My mom’s had a stroke and I need some time off to get her moved in with us and arrange for her day-to-day care.” “My son just got discharged from the Army after being wounded in Afghanistan. He lost a leg and will need some help getting adjusted.” “Our doctor just confirmed my spouse has cancer and will need to undergo chemotherapy and radiation over the next three months. I’d like to be there, if I can.” Many decorated-apparel business owners wouldn’t even give their request for time off a second thought. “Of course, take the time you need. Your job will be here when you get back.”

No one is implying life without a workhorse employee will be easy, but chances are you’ll make due. The others will pick up the slack. One of your rising new stars steps up to the challenge. Maybe even you roll up your sleeves and pitch in. Somehow, some way, you’ll get by. And when that employee returns, he/she is so thankful for your understanding and compassion that they work even harder to show their appreciation. Therein lies the essence of the Family and Medical Leave Act (FMLA). If you are a company with 50 or more employees living within a 75-mile radius of the work site, the FMLA makes your compliance in situations such as those described above mandatory. If you are a small enterprise, showing compassion of a fellow worker’s plight just makes good business sense.

On January 28, 2008, the FMLA was changed slightly with the passage of the National Defense Authorization Act (NDAA). Although you may not be required to comply with the FMLA because of your company’s size, you may be interested in the provisions of the law that have been modified. Let’s explore, shall we?

FMLA by the numbers

The Family and Medical Leave Act, enacted in 1993, provides qualified employees in large organizations with up to 12 weeks of unpaid, job-protected leave per year for the birth or adoption of a child, for caring for a spouse or an immediate family member with a serious health condition or for convalescence after an employee’s own serious health condition. Some states have their own family leave laws and companies must abide by whichever regulation provides the most generous benefit to the employee. To be eligible for leave under the FMLA, an employee must have worked for the same employer for a 12-month period and have logged at least 1,250 hours of service—slightly more than 24 hours a week.

As it happens, the 12-month period in which FMLA leave eligibility is determined is a bit fuzzy. It is left up to the company to set the period as one of the following: the calendar year, their fiscal year, a year mandated by state law, a year starting on the anniversary of the employee’s hiring date, or a 12-month period measured forward or backward from the first day that FMLA leave is used.

For the small business owner, the beauty of the FMLA is that you are not forced to offer employees time off, nor are you saddled with the responsibilities of the law in terms of proper posting of notices, the confusing and voluminous paperwork or the tracking requirements. Instead, you can choose to adopt some or all of the same or similar policies in anticipation of growing into a 50-plus employee company or just acting like one so you can compete with the big boys for the best workers in a relatively shallow talent pool.

The 1993 version of the FMLA called for unpaid leave for an employee’s own “serious condition” or that of a child, spouse or parent. A serious condition is defined as one that requires any inpatient hospital care or at least a three-day incapacity with continuing treatment by a health care provider. Examples include, but are not limited to:

  • strokes, heart attacks or other heart-related maladies;
  • most cancers;
  • spinal injuries or back conditions that require surgery or extensive therapy;
  • substance abuse—for the purpose of receiving treatment, not just seeking it;
  • respiratory conditions including emphysema and pneumonia;
  • severe arthritis and injuries resulting from accidents, either on or off the job;
  • pregnancy, morning sickness, prenatal care, childbirth and recovery; and
  • long-term, chronic conditions that require multiple treatments of at least two visits to a health care provider in a 30-day period or two scheduled visits a year.

In 2005, as many as 13 million workers took FMLA leave and one-quarter of them took it intermittently and as needed. Because of the extended duration of the wars in Iraq and Afghanistan and the shear numbers of service men and women in our Armed Forces and National Guard, the NDAA was passed and there were new types of leave created. Now, leave may be granted for care of family members on active duty or for service members for up to 26 weeks due to serious illness or injury while in the line of duty. Along with spouses, children and parents, next of kin has been added to the list of people that could initiate FMLA leave for a worker. Next of kin is defined as the nearest blood relative and could include siblings or cousins.

Other examples that would qualify for FMLA leave include seeing a service member off to active duty, welcoming them home, pre-deployment or re-integration briefings and attendance of family support meetings.

The good, the bad, the ugly

Unless you are required to act in accordance with the FMLA, you really don’t want to know about the nasty details surrounding the other employer responsibilities for compliance—such as making sure the employee notices are posted in English and all of the other native languages of your workforce, the timing and sufficient amount of information that must be collected and verified to determine if FMLA leave is authorized, and accurate tracking of cumulative leave taken to date in a given year. It can and usually does get pretty messy and cumbersome.

Employees can take intermittent FMLA leave for treatment or other medical reasons. For example, an employee can take two hours of leave a week for doctor’s appointments or several days at a time over six months for medical therapy. Large companies that must follow the FMLA track intermittent leave in the lowest normal measure of time that is set for pay purposes. Trying to manage intermittent leave has become a major human resources nightmare for employers.

FMLA leave is unpaid unless the company voluntarily decides to continue paying the worker or insists that the employee first use of his/her paid time—annual vacation or sick leave—and that time is counted as part of the 12 weeks. If you do not insist a worker first use paid leave as part of FMLA, the employee is entitled to such leave on top of the 12 weeks of unpaid leave.

If you provide your workers health benefits, the company must continue to provide them while the employee is on FMLA leave. If you change coverage or adopt a new plan for everyone else while an employee is on FMLA leave, the new benefits must be made available to that worker as well.

In deference to the business owner, eligible employees who want to take FMLA leave must give the employer 30-days advance notice when the need is foreseeable, such as when a pregnant worker wants time off for childbirth. When the serious condition cannot be anticipated, they need to inform you “as soon as practicable” under the circumstances, which usually means one to two business days. Employers then have up to two business days after they learn of an employee’s FMLA-qualified absence—notice the employee doesn’t have to request FMLA leave, just that the leave qualifies under FMLA guidelines—to send the employee a written notice explaining the leave falls under the FMLA. I told you the nitty-gritty of this law could get ugly.

What else could I do?

An eligible employee who takes FMLA leave is entitled to be restored to the same position he held when the leave started or to an equivalent position with the same benefits, pay and other terms and conditions of employment. An equivalent position should entail the equivalent skill, effort, responsibility and authority. Your best bet is to hold the worker’s job during FMLA leave.

There are many other nuances around the FMLA and you can learn more by visiting the U.S. Department of Labor website: dol.gov/whd/fmla. Good luck!