Top 20 FMLA Questions

Jack A. Raisner
May 23, 2006 — 7,298 views  
Become a Bronze Member for monthly eNewsletter, articles, and white papers.

1. Do Employers Have To Tell Employees that FMLA Leave Is Available?

Yes. Employers must post conspicuously a notice explaining the FMLA’s
provisions and how to file complaints of alleged violations with the DOL.
Employers must also include a statement of FMLA rights in their employee
handbooks. Employers without employee handbooks must make statements of
FMLA rights available to employees. §§825.300, 825.301(a).


2. Does the Employee Have To Give the Employer Notice of Intent To Take
Leave?

Yes. The employee must give the employer a minimum of 30 days’ notice of
his or her intent to take leave, to the extent foreseeable. If the employee would not
have been able to foresee the need for leave 30 days in advance, the employee
must give as much notice as practicable. §825.302(a).


3. Is there a Specific Way in Which the Employee Must Notify the Employer
of Intention to Take FMLA Leave?

The employer may require employees who seek FMLA leave to comply with
the employer’s regular leave request procedures, such as the submission of a
written leave request. However, such policy requirements may not be enforced to
deny leave if the employee gives verbal notice. §825.302(d). The employee need
only provide “at least verbal notice” sufficient to make the employer aware of:
• The employee’s need for FMLA leave;
• The anticipated timing of the leave; and
• The anticipated duration of the leave. §825.302(c).
The employee need not expressly mention or refer to the FMLA. Notice to a supervisor will be sufficient. §825.800.


4. What Happens if the Employee Fails To Give Timely Notice of
Foreseeable Leave?

Provided that the employer has complied with its posting obligation or can
otherwise show that the employee had actual knowledge of the notice obligation,
an employee who fails to give at least 30 days’ notice of a foreseeable leave
without any reasonable excuse may be subjected to a delay of at least 30 days
from the date of notice. §825.304(b).


5. Can the Employee Notify the Employer of the Reason for the Leave after
it has been taken?

Provided that an employer has not already “designated” an absence as an
FMLA leave (as described below), an employee must notify the employer that the
leave was for an FMLA reason within two business days of returning from the
absence. If an employee fails to do so, the employee may not later claim FMLA
protection for the absence. §825.208(e)(1).


6. Does the Employer Have To Designate FMLA Leave for It To Count
Against the 12-Week Allotment?

Yes. When an employer learns that an employee will be out of work for an
FMLA-qualifying reason, the employer must “designate” the leave as an FMLA
leave for the leave to count against the employee’s annual FMLA entitlement. To
designate a leave as an FMLA leave, the employer must notify the employee that
the leave will be counted as FMLA leave. The designation should be made within
two business days of the date that the employer (including any supervisor to
whom the employee reports) learns that the leave is being taken for an FMLA
qualifying reason. §825.208(a) and (b)(1).


7. Is There a Prescribed Form for the Designation?

The designation notice may be made orally or in writing. If made orally, it must
be confirmed in writing by the following payday (or the next payday thereafter, if
the following payday is less than one week away). §825.208(b)(2).
If an employer knows of an employee’s claim of FMLA leave but seeks to
confirm that the leave is FMLA-qualifying (such as by seeking medical
certification, as described below), the employer must nevertheless designate the
leave in a timely manner. However, the designation may be “preliminary” and
may be withdrawn (with written notice to the employee) if the FMLA reason for
the leave is not confirmed. §825.208(e)(2).


8. What Happens if an Employer Fails To Designate in a Timely Manner?

If an absence has begun and the employer does not designate the leave as
FMLA-qualifying within two business days of receiving notice from the
employee of the need for FMLA leave, the DOL’s position is that the employee
will be entitled to full FMLA protections for the FMLA qualifying period of leave
before the date of the designation, but none of the time before the designation will
be counted against the employee’s 12-week leave entitlement. §825.208(c). There
is a lively debate about the enforceability of this provision.


9. Does the Response to Ineligible employer Have To Tell the Employee He
or She Is Ineligible for FMLA Leave?

According to the regulations, yes. An employer must notify an ineligible
employee of his or her ineligibility within two business days of the request for
leave. If the employer fails to do so and the leave commences, the employer may
not thereafter deny the leave that may have interfered with or affected due to
failure to designate.


10. Does the Employer Have To Provide an Individualized Notice of Rights
To Each Employee Who Requests FMLA Leave?

Generally, yes. In addition to the notices that must be provided generally to
employees, an employer must provide an employee who requests FMLA leave
with an individualized notice of employee rights. §825.301(b). A notice consistent
with the current prototype form prepared by the DOL. Variations can be made in
that form, as long as the same information is provided. In addition, if an employer
were not to rely on the “key employee” standards for limiting certain employees’
leave rights, that portion of the notice need not be included.


11. Does the Employer Have To Furnish an Individualized Notice of Rights
Each Time an Eligible Employee Requests FMLA Leave?

Generally, yes. An employer is generally required to reissue an individualized
notice of rights upon each commencement of FMLA leave. However, the notice
of rights need not be reissued if it was given to the employee less than six months
earlier, unless the information provided to the employee has changed since the
earlier notice. §825.301(c).


12. What Happens if the Employer Fails To Provide Individualized Notice?

An employer who fails to provide a timely notice of FMLA rights is barred
from taking action due to the employee’s failure to comply with any requirement
set forth in the notice. §825.301(f).


13. May the Employer Require the Employee To Provide Status Updates?

Yes. An employer may require the employee to report periodically on his or her
status and intent to return to work at the conclusion of the leave period.
§825.309(a).


14. May the Employer Require the Employee To Provide Notice of Intent To
Return to Work?

Yes. The employer may require an employee to give notice within two business
days if circumstances affecting the length of the leave period change, provided
that their effect on the length of the leave period is foreseeable. In any event, if an
employee’s need for leave reduces due to changed circumstances, the employee
may not be required to remain on FMLA leave longer than necessary to resolve
the circumstances that precipitated the leave. §825.309(c).


15. When an Employee Wants To Take FMLA Leave for a Serious Health
Condition or To Care for a Family Member, May the Employer Require
Medical Certification?

Yes. An employer may require those employees requesting leave because of a
serious health condition or to care for a family member to provide medical
certification for the leave.


16. May the Employer Make Inquiries Concerning Medical Certification?

Yes, with some restrictions. If an employer has questions concerning the
medical certification, a health care provider representing the employer may
contact the employee’s health care provider, with the employee’s permission, for
the purpose of clarifying and/or authenticating the medical certification. However,
neither the employer for a health care provider retained by the employer may
request additional information from the employee’s health care provider.
§825.307(a)(1).


17. May the Employer Require Additional Certifications for a Request for
Leave?

Yes, but the process stops at the third certification. An employer that has reason
to doubt the validity of a medical certification may require an employee to obtain
a second medical certification at the employer’s expense. However, the employer
may not require examination by a health care provider that it regularly utilizes. If
the conclusions of the first and second certifications differ, the employer may
require a third certification by a jointly selected health care provider, again at the
employer’s expense. The third certification will be final and binding.
§825.307(a)(2), (b) and (c).


18. When fine Employee Seeks Leave for a Previously Certified Condition,
May the Employer Require a new Certification?

Generally, yes, an employer may seek recertifications of previously certified
medical conditions. §825.308. But the frequency of the recertifications varies with
the type of leave. Except for situations involving changed circumstances, requests
for leave extensions or new information giving rise to reasons to doubt the
continuing validity of the original certification, recertification may be requested
no more frequently than the longer of (a) 30 days; or (b) the minimum duration of
incapacity specified in the original certification. For pregnancy, chronic or
permanent long-term conditions, recertifications may be requested no more often
than every 30 days and only in connection with an absence. §825.308(a), (b) and


19. When Must the Employee Provide the Response?

Employees must provide recertifications within 15 days of requests for
recertification. §825.308(d).


20. May the Employer Require the Returning Employee To Certify Fitness
for Duty?

Yes, if the requirement is applied uniformly An employer may maintain and
enforce a uniform policy applicable to all similarly situated employees, requiring
fitness for duty certifications before employees return to work from an FMLA
leave involving the employee’s own serious health condition. The certification
must be limited to the condition that prompted the need for leave and may be a
simple statement of the employee’s ability to return to work. The employee may
be required to bear the cost of the certification (unless, of course, state law were
to prohibit such a requirement). §825.310. The employer may not require a
second or third fitness for-duty certification. §825.310(e).

Jack A. Raisner