As their construction business grows, employers need to be mindful of a lot of things, especially their legal obligations. For example, is your company currently compliant with all employment law requirements? Areas like worker classification, wage and hour laws, and workers’ compensation coverage can be overlooked by businesses that are growing too fast. Performing your due diligence and verifying that you are following federal and state requirements may be the difference between success and failure for your business.
Another important employment law topic for any construction firm with at least fifty employees is the requirements of the federally enforced Family and Medical Leave Act (FMLA). As your workforce grows, you may be legally required to add a provision to your employee handbook related to granting or denying unpaid family and medical leave.
In this editorial, a Tampa construction lawyer will cover what you need to know about FMLA leave, everything from the policy itself to eligibility requirements and more. If you are interested in learning more, we encourage you to read this Employer’s Guide to FMLA Leave. Remember, for assistance with a variety of helpful employment law services that grow and protect your business, consult the Tampa construction lawyers at Cotney Construction Law.
What is FMLA Leave?
FMLA leave provides eligible employees with the time away from work they need to tend to serious health conditions, an ailing family member, or the birth of a son or daughter. This federal law offers employees unpaid, job-protected leave. The law requires business owners to provide up to 12 unpaid workweeks to the employee each year. Furthermore, the employees health benefits should be maintained during their leave, as they are considered an active employee despite being away from the jobsite.
Employees that exercise their right to take leave should not be retaliated against for being away. When an employee returns to work, they should return to the same position, pay, and other benefits they received before their leave. It’s extremely important that employers are aware of the requirements of FMLA leave and proactive in assisting their employees with utilizing leave if they qualify.
Are There Special Exemptions?
FMLA leave provides entitlements to military families. This special exemption extends the requirements of the standard policy. For example, if an employee has an injured service member in their family and they need to care for that individual, they may be granted an extended time period of leave, including up to 26 weeks of FMLA leave in a year.
Is My Business Required to Provide FMLA Leave?
FMLA leave is only provided to certain types of businesses within the public and private sector. For example, any employees of public agencies (government employees or public education employees) qualify for FMLA leave. In the private sector, businesses with 50 or more employees apply. Specifically, if the business has employed 50 or more employees for at least 20 weeks in the current or preceding calendar year, the business is required to provide FMLA leave.
Eligibility requirements for employees to take leave include:
- They must work for either a public agency or private business with 50 or more people
- They must work a total of 1,250 hours in the last 12 months before starting leave
- They must work for the employer for at least 12 months to qualify for leave
When Can an Employee Take FMLA Leave?
In order to qualify for FMLA leave, an employee will need to provide their employer with a 30-day advance notice request to take leave. In some cases, providing leave 30 days in advance is not feasible, so the employee should provide notice as soon as possible. To ensure the employee can take leave, they should provide their employer with sufficient information as to why they need leave. This will help the employer reasonably determine if FMLA applies to the request.
An employee may be eligible to take FMLA leave for:
- Serious Health Conditions: An employee can take leave if they suffer from a serious health condition that renders them incapable of working. Specifically, this includes overnight stays in the hospital, incapacitating conditions that require ongoing medical conditions, chronic conditions, or pregnancy.
- Caring for Family Members: Similarly, if an immediate family member (spouse, child, parent) is experiencing any of the above health conditions, an employee can take leave to care for them.
- Birth of a Child: When an employee’s son or daughter is born, or if they adopt a child, the employee can take leave to have time to care for and bond with that child. This form of leave concludes 12 months after the time of the birth or placement.
- Military Exemptions: As we discussed above, for specific cases related to an immediate family member in the military, an employee can take leave to care for a service member or other specific cases.
What Employers Need to Know About FMLA Leave
Employers need to have a firm understanding of the above eligibility requirements. However, many of the above parameters can present a variety of tough decisions for an employer in regard to whether or not they should grant leave. For example, is an employee’s serious health condition a lingering injury or something that requires urgent medical care? Similarly, what about employees dealing with a mental health issue? Or an employee that was the victim of domestic abuse? When assessing whether or not an employee qualifies for leave, consult a Brandon construction attorney to learn more about the qualifications for granting or denying leave.
At Cotney Construction Law, a Brandon construction lawyer can assist employers in the following areas related to FMLA leave:
Our attorneys can assess your operations and determine whether or not your business is required to provide FMLA leave. Some construction businesses are integrated (one employer), whereas others are joint employers (two or more businesses adjoined, like temporary employment agencies). The criteria to determine if you are required to provide FMLA leave can be complex and requires the attention of an experienced attorney. Similarly, our attorneys can assess each individual employee’s leave request and provide you with the insight you need to determine if they qualify. We can also assess employees that request intermittent leave and whether or not an employee qualifies for paid or unpaid leave depending on the provisions in your employee handbook.
Performing Due Diligence
Employers have a lot of responsibilities related to FMLA leave. For example, every workplace is required to display the FMLA poster. There are also quick deadlines to determine if an employee is eligible for leave. Employers are also responsible for notifying employees of their option to take leave (if the employee is unaware and may qualify). From navigating the process of requesting medical certification from an employee’s healthcare provider to granting or denying leave, our Clearwater construction lawyers can help you every step of the way.
Restoring the Employee
When employees either exhaust their leave or are ready to return to work, construction employers need to have a system in place for the restoring process. First, employers are required to provide employees with the same (or nearly identical) position as before they left. This is a federal requirement and features employment elements like providing the worker with the same shift time, scheduled hours, pay, bonuses, and responsibilities. Second, employers can request that their employee submit a “fitness-for-duty” certification before they clear them to return to work. Third, in some cases, an employee with a serious health condition may request reasonable accommodations to return to work. A construction attorney can help you determine if the reasonable accommodations qualify or impact the essential functions of their position. To successfully restore an employee and reduce liability, consult our Clearwater contractor lawyers.
Many employers who qualify for FMLA leave are surprised to learn that this policy is required to be in their employee manual. Moreover, any company records or documents related to leave need to feature FMLA requirements. From maintaining company records to ensuring that all the provisions in your employee manual are consistent, a construction law firm can provide a variety of helpful services that protect your construction business and ensure you are compliant with federal regulations enforced by the Department of Labor. To learn more about our employee handbook drafting and review services, contact Cotney Construction Law.
Consult a Construction Attorney For Legal Advice
The specifications and requirements for an employee to qualify for leave are highly complex and require the attention of a construction law firm. Failure to comply with regulations set forth by the Department of Labor can result in costly citations, employee complaints, and litigation.
At Cotney Construction Law, we offer construction professionals the opportunity to invest in an affordable, monthly subscription plan that provides them with unlimited access to the resources and tools they need to operate a successful construction business. For employment law advice, employee handbook review and drafting, or a myriad of other helpful legal services, reach out to the Tampa construction attorneys at Cotney Construction Law.
Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.