An employer’s FMLA documentation checklist
The federal Family and Medical Leave Act (FMLA) can be confusing and difficult to administers for even the most sophisticated human resources professional. The law requires employers to give employees a series of notices about their rights under the FMLA and their obligations when using leave. Failure to provide the required notice may result in an FMLA violation that denies an eligible employee leave and lands the employer in court. In particular, employers should be aware of and taking the following steps with regard to the FMLA:
1. DOL poster
To meet the general notice requirements of the FMLA, covered employers must display a poster in plain view for all workers and applicants to see, notifying them of the FMLA provisions and providing information concerning how to file a complaint with the Wage and Hour Division.
2. A published policy
A covered employer with any eligible employees must provide a general notice containing the same information that is in the poster in its employee handbook or other written material about leave and benefits.
3. Eligibility notification
Within five (5) business days of an employee’s request for FMLA leave, or the employer learning through other means that an employee’s need for leave might be FMLA-qualifying, the employer must issue a notification. Keep in mind that the employee’s notice of a need for FMLA leave may be verbal or written. The employee need not say the magic words “FMLA” but simply must provide enough information for the employer to know that the leave may be covered by the FMLA.
4. Rights and Responsibilities Notice
When the employer provides the eligibility notice, the employer also must provide the employee with a rights and responsibilities notice, notifying the employee of his/her obligations concerning the use of FMLA leave and the consequences of failing to meet those obligations. The rights and responsibilities notice must be in writing and must include, as applicable: notice that the leave may be counted as FMLA leave; the employer’s designated 12-month period for counting FMLA leave entitlement; any requirement for the employee to furnish a certification and the consequences for failing to do so (include a copy of the certification with the notice); information regarding the employee’s right or the employer’s requirement for substitution of paid leave; instructions for making arrangements for any premium payments for maintenance of health benefits that the employee must make during leave (and potential employee liability if the employee fails to return to work after FMLA leave); notice of designation as “key” employee and what that could mean; and the employee’s right to job restoration and maintenance of benefits.
5. Notice of Incomplete or Insufficient Certification
If an employee submits a medical certification form that is incomplete or insufficient, the employer must advise the employee in writing regarding what additional information is needed and give the employee seven (7) calendar days (or longer, if necessary, despite an employee’s diligent good faith efforts) to complete and return the form.
6. Designation Notice
Within 5 business days of having enough information to determine whether the leave is FMLA-qualifying, the employer must notify employee that it is designating leave as either FMLA-qualifying or not FMLA-qualifying and giving notice of the designation to the employee. Employers should consult with experienced human resources professionals and/or labor and employment counsel about proper administration of FMLA leave. For MEA members, the Hotline and a Member Legal Services attorney are available to provide this assistance.
In addition, please join us on May 2, 2019 for the MEA HR & Employment Law Conference, where one of the break-out sessions will be Navigating Leave under the FMLA & ADA.
About the Author
Amy McAndrew is MEA’s Director of Member Legal Services and has over twenty years of experience as a labor and employment attorney.