Benefits and Compensation

New FMLA: Tricky Questions Answered

Surveys consistently show that managing Family and Medical Leave Act (FMLA) issues is one of the most time-consuming—and annoying—areas HR professionals tackle. BLR’s experts at Compensation.BLR.comshare answers to some of the trickier questions they get.

Q. The law defines a health condition as serious if the employee is treated by a healthcare provider for more than 3 consecutive, full calendar days. So an employee could see a provider on a Friday and the following Monday and still qualify? I would have hoped it would be workdays.

A. No, it’s not workdays. Saturday and Sunday are included for the purpose of defining a serious health condition.

Q. Regarding the definition of a “key employee” for FMLA, must the person be paid a salary? What if a top 10 percent earner is paid on a commission basis or with hourly wages? Can he or she still qualify as a key employee?

A. No, he or she can’t. Not only must key employees be salaried, they must also be among the 10 highest-paid employees within a 75-mile radius that work for the company. And, such key employees must be informed of their status; you can’t wait until they come back from leave to make the designation.

Remember that you must still grant leave to key employees. The distinction is that you would not guarantee reinstatement to their former jobs on their return from leave.

What’s the advantage of taking leave to the key employee if there’s no guarantee of reinstatement? The employee gets to continue health coverage., now thoroughly revamped with easier navigation and more complete compensation information, will tell you what’s being paid right in your state—or even metropolitan area—for hundreds of jobs. Try it at no cost and get a complimentary special report. Read more.

Q. We have an employee who has been out for 8 weeks because of pregnancy complications, and her baby has still not been born. When it is delivered, must we give the mother an additional 12 weeks’ leave for care of a newborn? In other words, do the complications and the childbirth each qualify for 12 weeks’ leave?

A. Normally, no. Under the FMLA, the employee is allowed only 12 weeks’ leave in a 12-month period for any combination of conditions, such as the two separate needs of your employee. So, in most cases, only a total of 12 weeks would be allowed in your employee’s situation.

However, the complete answer depends on the way you count your year for FMLA purposes. If you use a fixed calendar year, and if the timing were right, the woman might qualify for 8 weeks of leave at the end of one year, and then another 12 weeks at the beginning of the next year. To avoid this possibility, many employers choose one of the rolling year options for counting the 12-month period.

Note that leave to care for a child can be taken by either men or women, must be within 12 months of the child’s birth or adoption, and does not require medical certification.

Of course, as difficult as it is, FMLA is just one of comp and benefits folks’ challenges. And the tough economy isn’t making anything easier. You need guidance. You need new compensation policies. You need up-to-date competitive salary data. You need job descriptions and training programs. And you need quick answers to tricky questions.

Many professionals we serve find their answers at, BLR’s comprehensive compensation website. And there’s great news: The site has just been revamped in two important ways. First, compliance focus information has been updated to include the latest on COBRA, Lilly Ledbetter, and FMLA. Second, user features are enhanced to make the site even quicker to respond to your particular needs:

  • Topics Navigator—Lets you drill down by topical areas to get to the right data fast.

  • Customizable Homepage—Can be configured to display whatever content you want to see most often.

  • Menu Navigation—Displays all of the main content areas and tools that you need in a simple, easy format.

  • Quick Links—Enable you to quickly navigate to all the new and updated content areas.

Here are the services provided by this unique tool (you can see samples of many of the available services by clicking here):

  • Localized Salary Finder. Based on reliable research among thousands of employers, here are pay scales (including 25th, 50th, and 75th percentiles) for hundreds of commonly held jobs, from line worker to president of the company. The data are customized for your state and metro area, your industry, and your company size, so you can base your salaries on what’s offered in your specific market, not nationally.

Try BLR’s all-in-one compensation website,, and get a complimentary special report, Top 100 FLSA Overtime Q&As, no matter what you decide. Find out more.

  • State and Federal Wage-Hour and Other Legal Advice. Plain-English explanations of wage-hour and other compensation and benefits-related law at both federal and state levels. “State” means the laws of your state because the site is customized to your use. (Other states can be added at a modest extra charge.)

  • Job Descriptions. The website provides them by the hundreds, already written, legally reviewed, and compliant with the Americans with Disabilities Act (ADA) mandate that essential job functions be separated from those less critical. All descriptions carry employment grade levels to current norms—another huge time-saver.

  • Merit Increase, Salary, and Benefits Surveys. The service includes the results of three surveys a year. Results for exempt and nonexempt employees are reported separately.

  • Performance Appraisal Wizard. Takes the “dreaded” out of performance appraisal.

  • Weekly Ezine and Best Practices Advice. Comp and benefits news updated daily (as is the whole site).

  • “Ask the Experts” Service. E-mail a question to our editors and get a personalized response within 1 business day.

If we sound as if we’re high on the program, it’s because we are. For about $3 a working day, the help it offers to those with compensation responsibilities is enormous.

This one’s definitely worth a look, which you can get by clicking the links below.

Get more information or start a no-cost trial and get a complimentary special report!

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1 thought on “New FMLA: Tricky Questions Answered”

  1. RE: leave for a mother after a baby’s birth.  The answer could have benefited from a reminder to also check state leave requirements to see if they are more generous than FMLA – Massachusetts, for example, allows for 8 weeks of leave per child after the birth (e.g. twins = 16 weeks)

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