What’s Old Is New: How the FMLA is like Nebraska vs. Colorado!


Today, Husker fans begin traveling west en masse toward Boulder to avenge a loss from last year and rekindle a beer-soaked rivalry.  Of course, the first thought that pops in your head is the FMLA, right? I suppose it could be a struggling Nebraska offense in week 1, beautiful mountains, or weed, but let us explain…

The high point of our little trope is to inform you that the federal Department of Labor has, quite literally, decided to take something old and make it new.  On August 5, the DOL proposed updated FMLA compliance forms with a pretty clear purpose: “The goal in revising the forms is to increase compliance with the FMLA, improve customer service, and reduce the burden on the public by making the forms easier to understand and use.”  

We think their success in meeting these goals will look more like a batting average than Adrian Martinez’s completion percentage, but take a look for yourself.  To their credit, the DOL does try to account for and explain the several FMLA requirements within the forms more clearly.  

The updated forms illustrate a key point: FMLA compliance is a tricky, cumbersome, and too-often-forgotten requirement in federal law.  The FMLA is susceptible to misunderstanding and preconceptions that may or may not be accurate. Who, exactly, is eligible for FMLA leave?  What if the employee doesn’t ask for it? What are the timelines? And which forms am I supposed to use again? (Here are the current forms for those scrambling down to your business manager’s office because you forgot all about the FMLA when that custodian with a bad back came in last week….)

Let’s cover a few quick basics to get you in the right frame of mind as we head into the 2nd month of the school year, which is inevitably when paid leave for often-absent employees starts to run out and the FMLA pops up:

  • The FMLA applies to all public employers regardless of size, so you must have an accurate and up-to-date FMLA policy and employee notices --check yours!

  • Employees are only eligible if they’ve worked for you for 12 months, worked 1,250 hours during the previous 12 months, and work at a jobsite with at least 50 employees within 75 miles.  (Yes, it is weird to have a policy, give notice, and have forms only to tell an employee “Sorry, we’re too small to give you FMLA leave.” No one ever said that the federal government makes sense!)

  • Employees do not need to say the magic words, “FMLA leave,” to trigger an employer’s responsibility under the FMLA.  It is YOUR obligation as the employer to designate qualifying leave within 5 days:

(1) The employer is responsible in all circumstances for designating leave as FMLA-qualifying, and for giving notice of the designation to the employee as provided in this section. When the employer has enough information to determine whether the leave is being taken for a FMLA-qualifying reason (e.g., after receiving a certification), the employer must notify the employee whether the leave will be designated and will be counted as FMLA leave within five business days absent extenuating circumstances.

  • Once eligible, employees are entitled to 12 weeks of unpaid leave under the FMLA.  However, if their leave is incremental or they have a reduced schedule, it must be counted in increments no greater than one hour:

(1) When an employee takes FMLA leave on an intermittent or reduced leave schedule basis, the employer must account for the leave using an increment no greater than the shortest period of time that the employer uses to account for use of other forms of leave provided that it is not greater than one hour and provided further that an employee's FMLA leave entitlement may not be reduced by more than the amount of leave actually taken.

If you are thinking to yourself, “Wow, that’s only 4 bullet points I’m not sure I’ve got a great understanding of this stuff,” join the club! We didn’t even tackle substitution of paid leave, newborn bonding time, and some of your favorites. If you or your business manager(s) want some more training on these exact issues, KSB is hosting a webinar on September 10 (you can register here). We’ll also cover the interrelated mess of issues when you combine FMLA, FLSA, ADA, Work Comp, and more. In the meantime, if you have FMLA questions you should contact your school or ESU attorney or call one of the attorneys from KSB...and GBR!