QUERY: Can you provide us with a sample FMLA policy?

RESPONSE: The following material is found in Ceridian's HR Compliance Reference System:

Sample Policy

This sample policy incorporates the minimum requirements mandated by the FMLA and does not address all employer and employee rights and obligations under the FMLA.  This sample policy is not intended as legal advice to employers and, accordingly, before employers adopt this policy or any policy to implement the FMLA they should:

• Review the statute and regulations.
• Consult with legal counsel to ensure that the policy fully complies with all applicable federal, state, and local laws.

Employers are entitled to adopt more generous or more flexible policies than those set forth in this sample.  In accordance with regulatory guidance, employers may choose the appropriate method for integrating certain aspects of the FMLA into existing policies.  This sample policy also attempts to highlight certain areas where employers must make policy decisions when implementing the FMLA.

General Provisions

It is the policy of this company to grant up to 12 weeks of family and medical leave during any 12-month period to eligible employees, in accordance with the Family and Medical Leave Act of 1993 (FMLA).  The leave may be paid, unpaid, or a combination of paid and unpaid leave, depending on the circumstances of the leave and as specified in this policy.

Note: Employer Policy Decision

An employer may provide more than 12 weeks of leave to employees.  If, for example, some employees are covered by state laws that provide greater leave benefits than provided to employees in other states, employers must decide whether to adopt multiple leave policies or to extend greater leave benefits to employees in all states.

Eligibility

To qualify for FMLA leave the employee must meet all of the following conditions:

• The employee must have worked for the company for 12 months, or 52 weeks.  The 12 months, or 52 weeks, need not have been consecutive.  An employee who was on the payroll for only part of a week, or on leave during the week, will be considered as employed for an entire week.
• The employee must have worked at least 1,250 hours during the 12-month period immediately before the date the employee requests leave to commence.  The principles established under the FLSA determine the number of hours worked by an employee.  The FLSA does not include time spent on paid or unpaid leave as hours worked.  Consequently, these hours of leave are not counted in determining the 1,250-hour eligibility test for an employee under FMLA.
• The employee must work in an office or worksite where 50 or more employees are employed within 75 miles of that office or worksite.  The distance is calculated by using available transportation by the most direct route.

Note: Employer Policy Decision

Should the employer only provide FMLA benefits to employees who are eligible under the FMLA, or should it extend the same leave benefits to all employees? 

If an employer decides not to provide leave to employees who are not eligible under the FMLA, the employer should include a statement in the FMLA policy that stipulates the conditions for which leave is not provided.

Types of Leave Covered

To qualify as FMLA leave under this policy, the employee must be taking leave for one of the reasons listed as follows:

• The birth of a child and to care for that child.
• The placement of a child for adoption or foster care and to care for the newly placed child.
• To care for a spouse, child, or parent with a serious health condition.
• The serious health condition (described below) of the employee.
• Any qualifying exigency (as the Secretary of Labor will, by regulation, determine) arising from the fact that a child, spouse, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the U.S. Armed Forces in support of a contingency operation.
• To care for a spouse, child, parent, or next of kin who is a servicemember recovering from a serious illness or injury sustained in the line of duty.

An employee may take leave because of a serious health condition that makes the employee unable to perform an essential function of the employee’s position.  A serious health condition is defined as a condition which requires inpatient care at a hospital, hospice, or residential medical care facility, including any period of incapacity or any subsequent treatment in connection with such inpatient care or a condition which requires continuing care by a licensed health care provider.

This policy covers illnesses of a serious and long-term nature resulting in recurring or lengthy absences.  Generally, a chronic or long-term health condition that if left untreated would result in a period of incapacity of more than three days would be considered a serious health condition.

Employees with questions about what illnesses are covered under this FMLA policy or under the company’s sick leave policy are encouraged to consult with the Human Resources Department.

The company may require an employee to provide a doctor’s certification of the serious health condition.

An eligible employee may take up to 12 weeks of leave (26 weeks for servicemember family leave) under this policy during any 12-month period.  The company will measure the 12-month period as (Identify method of calculation here). 

Each time an employee takes leave, the company will compute the amount of leave the employee has taken under this policy and subtract it from the 12 weeks (or 26 if applicable) of available leave, and the balance remaining is the amount the employee is entitled to take at that time.

Note: Employer Policy Decision

• Does the employer want to provide leave benefits only for those purposes specified in the FMLA, or does the employer wish to provide leave for other purposes, such as to care for domestic partners, and grandparents?  If the employer expands the leave benefit beyond the reasons for leave listed above in its policy, leave taken for such purposes may not be counted against the leave available for FMLA purposes.  In other words, if an employer under its own family and medical leave policy provides three weeks leave to an employee to care for a domestic partner, the employee would still be entitled to 12 weeks of leave for purposes listed in the FMLA.
• How will the employer measure the 12-month period within which employees are entitled to take up to 12 weeks of FMLA leave?  The regulations allow employers to select one of four possible methods for computing the 12-month period.

Spouses Working for Same Employer

If spouses both work for the company and each wishes to take leave for the birth of a child, adoption or placement of a child in foster care, or to care for a parent (but not a parent “in-law”) with a serious health condition, the spouses may only take a combined total of 12 weeks of leave.

Note: Employer Policy Decision

• While the FMLA allows companies to limit the leave available to couples as outlined in the draft policy, does the employer wish to do so?
• Will the cost savings of this limitation outweigh the administrative burdens of tracking leave of married couples?

Employee Status and Benefits During Leave

While an employee is on leave the company will continue the employee’s health benefits during the leave period at the same level and under the same conditions as if the employee had continued to work.

If the employee chooses not to return to work for reasons other than a continued serious health condition of the employee or the employee’s family member or a circumstance beyond the employee’s control, the company will require the employee to reimburse the company the amount it paid for the employee’s health insurance premium during the leave period.

Under current company policy the employee pays a portion of the health care premium.  While the employee is on paid leave the company will continue to make payroll deductions to collect the employee’s share of the premium (Identify method of paying premiums here including the date each month that payment is due.)  If the payment is more than 30 days late, the employee’s health care coverage may be dropped for the duration of the leave.  The company will provide 15 days’ notification before the employee’s loss of coverage.

If the employee contributes to a life insurance or disability plan, the company will continue making payroll deductions while the employee is on paid leave.  While the employee is on unpaid leave, the employee may request continuation of such benefits and pay their portion of the premiums (or the company may elect to maintain such benefits during the leave and pay the employee’s share of the premium payments).  If the employee does not continue these payments, the company may discontinue coverage during the leave.  If the company maintains coverage, the company may recover the costs incurred for paying the employee’s share of any premiums, whether or not the employee returns to work.

Note: Employer Policy Decision

While the law allows employers to require employees to continue any co-payments for health care premiums while on unpaid leave, how will the employer do so?

Employee Status After Leave

An employee who takes leave under this policy will be able to return to the same position or a position with equivalent status, pay, benefits, and other employment terms.  The company may choose to exempt certain highly compensated employees from this requirement and not return them to the same or similar position.

Note: Employer Policy Decision

Will the employer reserve the right provided in the FMLA to deny certain highly compensated employees the right to return to the same or equivalent positions under certain circumstances or will the employer provide the same job guarantee benefits to all employees?

Use of Paid and Unpaid Leave

If the employee has accrued or earned paid leave, the employee must use paid leave first and take the remainder of the 12 weeks as unpaid leave.  The company will notify the employee within two business days in writing or verbally (to be confirmed in writing by no later than the employee’s next regular payday) whether or not the leave will be designated as FMLA leave.

An employee who is taking leave because of the employee’s own serious health condition, or because of the serious health condition of a family member, must use all paid vacation, personal, or sick leave before being eligible for unpaid leave.  Sick leave may be substituted for unpaid FMLA leave if the reason for the FMLA leave is covered by the established sick leave policy.

Disability leave for the birth of the child and for an employee’s serious health condition, including workers’ compensation leave (to the extent that it qualifies), will be designated as FMLA leave and will run concurrently with FMLA leave.  For example, if the company provides six weeks of pregnancy disability leave, the six weeks can be designated as FMLA leave and counted toward the employee’s 12-week entitlement.  The employee then may be required to substitute accrued paid leave before being eligible for unpaid leave for what remains of the 12-week entitlement.

An employee who is taking leave for the adoption or foster care of a child must use all paid vacation, personal or family leave before being eligible for unpaid leave.

Note: Employer Policy Decision

• Will the employer require the employee to use paid leave as FMLA leave or will the employer permit the employee to select?
• Will the employer treat leave taken as a result of a workers’ compensation injury as FMLA leave where the injury results in a serious health condition or count it separately?
• Will the employer allow employees to take paid sick leave to care for a seriously ill family member not covered by the law?  Where an employer requires employees to offset FMLA leave by paid leave, care must be taken to ensure that only those offsets permitted by law are required.

Intermittent Leave or a Reduced Work Schedule

The employee may take FMLA leave in 12 consecutive weeks, may use the leave intermittently (take time off periodically when needed over the year), or under certain circumstances may use the leave to reduce the workweek or workday, resulting in a reduced-hour schedule.  In all cases the leave may not exceed 12 weeks over a 12-month period.

The company may temporarily transfer an employee to an available alternative position with equivalent pay and benefits if the alternative position would better accommodate the intermittent or reduced schedule.

For the birth, adoption, or foster care of a child the company and the employee must agree to the schedule before the employee may take intermittent or reduced schedule.  An employee must take leave for birth, adoption, or foster care of a child within one year of the birth or placement of the child.

If the employee is taking leave for the employee’s serious health condition or because of the serious health condition of a family member, the employee should try to make arrangements with the company for intermittent leave or a reduced schedule before beginning any time off.  If this is not possible, the employee must prove that the use of the leave is medically necessary.  The company may require certification of the medical necessity.

Note: Employer Policy Decision

• Will the employer dock exempt workers who have, for example, used up all paid leave for FMLA leave of less than a full day?
• Will the employer adopt a policy of docking some exempt workers for partial days of FMLA leave if it is illegal to do so for other exempt workers who are not eligible for FMLA leave because they work more than 75 miles from worksites with 50 or more employees?

Certification of the Serious Health Condition

The company may ask for certification of the serious health condition.  The employee should try to respond to such a request within 15 days of the request or provide a reasonable explanation for the delay.  Failure to provide certification may result in a denial of continuation of leave.  Request for a medical certificate must be made in writing as part of the employer’s response to an employee’s request for leave.

Certification of the serious health condition shall include the following:

• The date when the condition began.
• The expected duration of the condition. 
• A brief statement of treatment.
• For the employee’s own medical condition the certification must also include a statement that the employee is unable to perform work of any kind or is unable to perform an essential function of the employee’s position.
• For a family member who is seriously ill the certification must include a statement that the patient (the family member) requires assistance and that the employee’s presence would be beneficial or desirable.
• If the employee plans to take intermittent leave or work a reduced schedule, the certification must also include dates and the duration of treatment as well as a statement of medical necessity for taking intermittent leave or working a reduced schedule.

The company has the right to ask for a second opinion if it has reason to doubt the certification.  The company will pay for the employee to get a certification from a second doctor, which the company will select.  If necessary to resolve a conflict between the original certification and the second opinion, the company will require the opinion of a third doctor.  The company and the employee will mutually select the third doctor, and the company will pay for the opinion.  This third opinion will be considered final.  The employee provisionally will be entitled to leave and benefits under the FMLA pending the second and/or third opinion.

Note: Employer Policy Decision

The employer’s policy may incorporate the optional certification form published with the FMLA regulations or may simply require the employee to provide the same information requested without a form.

Procedure for Requesting Leave

All employees requesting leave under this policy must provide verbal notice with an explanation of the reason(s) for the needed leave to their immediate supervisor, who will advise the Human Resources Department.  If the leave is foreseeable, the immediate supervisor may require the employee to provide a written request for leave and reasons(s) with a copy to the Human Resources Department.  Failure of the employee to provide a written request for leave cannot be grounds for denying or delaying the taking of FMLA leave.

The company will provide individual notice of rights and obligations to each employee requesting leave within two business days or as soon as practicable.  For employees on intermittent or reduced-schedule leave for the same incident this notice will be provided every six months.

When an employee plans to take leave under this policy, the employee must give the company 30 days’ notice.  If it is not possible to give 30 days’ notice, the employee must give as much notice as is practicable.  An employee who is to undergo planned medical treatment is required to make a reasonable effort to schedule the treatment to minimize disruptions to the company’s operations.

If an employee fails to provide 30 days’ notice for foreseeable leave with no reasonable excuse for the delay, the leave request may be denied until at least 30 days’ from the date the employer receives notice.  While on leave, employees are requested to report periodically to the company regarding the status of the medical condition, and their intent to return to work.

Samples

Employer Response to Employee Request for Family or Medical Leave

Covered employers must provide employees with a written notice designating leave as FMLA leave and detailing specific expectations and obligations of an employee who is exercising FMLA entitlements. 

The employer may use U.S. Department of Labor Form WH-381, the Employer Response to Employee Request for Family or Medical Leave, to meet this requirement.

Certification of Health Care Provider

An employer may require that the need for leave for a serious health condition of the employee or the employee’s immediate family member be supported by a certification issued by a health care provider. 

The employer may use U.S. Department of Labor Form WH-380, the Certification of Health Care Provider, to obtain the certification.