Disclaimer

The content of this blog is not intended to provide legal or other advice or to create an attorney-client relationship. It is designed to provide the reader with general information and a general understanding of the law. You are advised to consult with a licensed attorney in your state regarding your specific questions.

Family Medical Leave Act

Since the enactment of the Family Medical Leave Act, the courts have struggled to clarify how employees and employers should communicate about FMLA leave and what qualifies as official FMLA notification. As a result, new regulations were enacted in 2009 which make major changes to the notice obligations for both employer and employee. This article will highlight the employer’s obligations.

General Notice. This is a generic posting that summarizes the employee’s rights under the FMLA. The regulations require that the notice be posted in a location both visible to both employees and applicants. Besides posting, the notice must either be included in the employee handbook (and distributed at the time of hire) or given to each employee as a separate document at the time of hire. Eligibility Notice. This is an individual notice which must be provided once an employee either requests FMLA leave or the employer has sufficient information to believe the employee is eligible for FMLA leave. An Eligibility Notice must be given within 5 business days after the request is made and must tell the employee whether or not he or she is eligible for FMLA. If the employee is not eligible, the notice must provide at least one reason why not. If the employee is eligible, the notice must state the amount of leave to be taken and the amount of leave still available within the 12-month period. Rights and Responsibilities Notice. Along with an Eligibility Notice, the employer must also issue a Rights and Responsibilities Notice. This notice must indicate whether the leave is designated as FMLA leave and whether it will be counted against the employer’s annual FMLA allotment. It must address whether substitution of paid leave is permitted, whether the employer will require a substitution of paid leave, and it must notify the employee that he/she is entitled to take unpaid FMLA leave if paid leave is not available. It must also identify whether medical certification is required and include the necessary form for completion. In addition, this notice must address the procedure for making health insurance payments, the consequences of failing to make timely payments and the employee’s liability for re-payment of insurance premiums if the employee fails to return to work at the expiration of their FMLA leave. It must also explain the employee’s right to the same or an equivalent job at the expiration of their FMLA leave. Designation Notice. If the employee does not return a medical certification, the employer has no further obligations with respect to notices. But, if the employee does provide a certification as requested, the employer’s final notice requirement is triggered. The employer must provide a written Designation Notice within 5 business days of receiving sufficient information to grant or deny FMLA leave. If possible, the Designation Notice must include the number of days, hours or weeks which will be counted against the employee’s annual allotment of FMLA leave. It must also address whether paid leave will be substituted for any portion of any unpaid FMLA leave. It must notify the employee if a fitness-for-duty exam will be required prior to the employee’s return to work. Only one Designation Notice need be provided for each FMLA qualifying reason, regardless of whether the leave is taken in one continuous block, intermittently, or on a reduced-leave schedule.

Responding to an FMLA leave request is no simple matter. An employer will want to ensure that each request is handled appropriately and in a timely fashion.