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FMLA notice rules: Provide quick response to leave request

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in Employee Benefits Program,Employment Law,FMLA Guidelines,Human Resources

THE LAW. Eligible employees who want to take leave covered under the Family and Medical Leave Act (Act) must give you 30-days' advance notice when the need is foreseeable, such as when pregnant employees anticipate time off for childbirth. When leave isn't foreseeable, employees need to inform you "as soon as practicable" given their circumstances. That typically means verbal notification within about two days.

To give proper notice, employees must explain that family or medical leave is needed. But they don't need to mention the words, "FMLA," as long as they provide enough information so you can decide whether their leave qualifies under the law. In short, as long as your organization is alerted about their need for leave, the burden is on you to draw a preliminary conclusion about whether the leave falls under the FMLA.

Once you receive notice, you must take steps to inform the employee about his or her FMLA rights.

WHAT'S NEW. In recent years, courts have struggled to clarify how employees and employers should communicate about the FMLA leave and what qualifies as official FMLA notification.

Even seemingly "silent" requests can count as official FMLA notice. Recent example: A federal court ruled last year that an employee's dramatic change in behavior could, in itself, be sufficient notice to an employer of a serious condition that qualifies for FMLA leave.

For this reason, some employers choose to waive the FMLA notice obligations for employees. They have more generous or flexible policies that give employees a reprieve if they neglect to give prompt notice.

And while you can loosen the rules, you can't tighten them. Requiring an employee to adhere to stricter FMLA notice guidelines than what the law requires won't fly.

HOW TO COMPLY. First, the law requires your organization to inform all employees about their rights under the law. This includes:


  • Posting required FMLA information in the workplace.



  • Explaining the law's basic provisions in your employee handbook.




Second, once you receive notice of leave and determine it could qualify under the law, you must, within two business days after learning of the leave, send written notice to the employee that leave falls under the FMLA. By putting employees on official notice this way, you start the meter running on the 12 weeks of allowable FMLA leave.

Providing a speedy response to an employee's absence is crucial. But what if the employee doesn't describe his needs completely? Do you have to guess?

Advice: Take a proactive stance. When an employee is absent and you suspect the absence could be due to an FMLA-qualifying reason, send the employee a letter preliminarily designating the time off as FMLA leave. Include a blank medical certification form. Indicate that your designation will become final if the employee provides the medical certification form completed by his doctor within 15 days.

Notification: what to include

When you notify employees in writing within two business days of their FMLA-qualifying leave, make sure your letter covers these issues:

1. The employee's need to provide you with medical certification that proves the leave qualifies under FMLA.

2. The employee's need to present medical certification that he or she is fit for duty upon return from leave.

3. The employee's right to substitute paid leave for unpaid leave.

4. Your right to require all workers to use their paid sick time, annual and personal leave as part of FMLA leave.

5. Whether the employee must make partial premium payments to maintain health insurance benefits while on leave.

6. The employee's potential liability for payment of health insurance premiums if she doesn't return from leave.

7. The employee's right to return to the same or equivalent job after the leave.

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