The Family and Medical Leave Act (FMLA) is an intricate law enacted to provide employees with time off from work to care for their own or a family member’s serious health condition or to bond with a newborn or adopted child. In general, an employee may not take FMLA leave to care for a son or daughter who is 18 years of age or older. However, an employee may take FMLA leave to care for a biological, adopted or foster child; a stepchild; a legal ward; or a child to whom the employee stands in loco parentis, who is 18 years of age or older and incapable of self-care because of a mental or physical disability at the time that FMLA leave is to commence.
Effective January 16, 2009, the FMLA regulations were expanded to include military caregiver and exigency leave. These regulations placed new expectations on employers for approving and denying employees’ FMLA requests.
On June 26, 2013, the U.S. Supreme Court, in United States v. Windsor, found unconstitutional Section 3 of the federal Defense of Marriage Act (DOMA), which had prohibited the federal government from acknowledging marriages between same-sex couples. Now that same-sex spouses are “spouses” under federal law if they are “spouses” under state law, all federal laws and regulations that include spouses include the broader same-sex definition in those states where same-sex marriage is legal. FMLA refers to state law for the definition of spouse. Thus, for FMLA, an employee can take leave for a serious medical condition, including military-family leave, of the same-sex spouse if the employee lives in a state that allows same-sex marriage. However, because the court did not consider Section 2 of DOMA, states still have the right not to recognize same-sex marriages originating in other states or territories. Therefore, in the 13 states that recognize gay marriage—California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont and Washington, plus the District of Columbia—applicability of the FMLA would depend on the state definition of marriage. Additionally, given that children of same-sex spouses are considered stepchildren of the nonnatural parent, the employee is entitled to take FMLA leave for their care, as well.
The FMLA is applicable only to employers with 50 or more employees for at least 20 workweeks in the current or previous calendar year. Covered employers must post, physically or electronically, the FMLA poster; in addition, the employee must be provided notice of his or her FMLA rights upon hire, either as a separate notice or in the company handbook.
Step 1: Request Received
An employee is expected to provide at least 30 days’ notice of a need for FMLA leave, unless the need is unforeseen, in which case the employee should notify the employer as soon as possible after becoming aware of a need for leave. According to FMLA regulations, “An employee giving notice of the need for FMLA leave does not need to expressly assert rights under the Act or even mention the FMLA to meet his or her obligation to provide notice, though the employee would need to state a qualifying reason for the needed leave and otherwise satisfy the notice requirements.”
Step 2: Rights and Responsibilities
The employer is required to respond to the employee within five days of receiving a request for FMLA leave. The employer’s response must establish whether the employee is eligible for FMLA leave and notify the employee of his or her rights and responsibilities under the FMLA. The easiest way to comply with this response requirement is to use the FMLA model form Notice of Eligibility and Rights & Responsibilities (WH-381).
Step 3: Determine Eligibility
An employee is eligible for FMLA leave only if the employee meets all three of the following eligibility requirements: “(1) Has been employed by the employer for at least 12 months, and (2) has been employed for at least 1,250 hours of service during the 12-month period immediately preceding the commencement of the leave, and (3) is employed at a work site where 50 or more employees are employed by the employer within 75 miles of that work site.”
If the employee does not meet these three criteria, the employer’s responsibility is to notify the employee of ineligibility for FMLA leave by specifying at least one criterion the employee does not meet.
Step 4: Certification
The Department of Labor (DOL) has published four different model certification forms. When requiring a medical certification, you will want to select the appropriate form below to include with the WH 381 Rights and Responsibilities form. Employees must be allowed up to 15 days to complete and return their certification form.
There is no requirement for an employer to request medical certification; these forms are simply tools to help employers in administration of FMLA leave. If an employer has enough information to know that an employee’s absence is FMLA qualifying (e.g., birth of a child, workers’ compensation injury), there may be no need for a medical certification. However, employers should be consistent in the policy and practice of requiring medical certifications from employees requesting FMLA leave.
Step 5: Clarification
On occasion, certification forms are returned to the employer incomplete or with insufficient information. The regulations specifically address these situations:
A certification is considered incomplete if the employer receives a certification, but one or more of the applicable entries have not been completed. A certification is considered insufficient if the employer receives a complete certification, but the information provided is vague, ambiguous or nonresponsive. The employer must provide the employee with seven calendar days (unless not practicable under the particular circumstances despite the employee’s diligent good faith efforts) to cure any such deficiency. If the deficiencies specified by the employer are not cured in the resubmitted certification, the employer may deny the taking of FMLA leave.
Step 6: Designation
The DOL published a model Designation Notice (Form WH-382) that can be used to notify the employee whether his or her FMLA request has been approved or denied. If you have enough information when the employee initially requests FMLA leave to approve or deny, you may supply the Designation Notice at the same time as the Rights and Responsibilities form. If you are requesting further documentation, such as a medical certification form, you must allow 15 days for return of this documentation prior to designating the time off as an FMLA-related leave. Even though you may not formally designate the leave as approved under the FMLA until several weeks after it starts, in some circumstances, you still track FMLA leave from the start of the leave. After an employee returns the medical certification form, you have five days to approve or deny FMLA leave. If the employee has not returned medical certification within 15 days as stated on the Rights and Responsibilities form and you are not aware of extenuating circumstances, you should notify the employee in writing that the FMLA request has been denied, using the designation notice above or a similar communication.
Step 7: Missed Deadline
The DOL has recognized that employers might occasionally miss a deadline for response to an employee’s FMLA request or FMLA designation. According to FMLA regulations, “If an employer does not designate leave as required by Sec. 825.300, the employer may retroactively designate leave as FMLA leave with appropriate notice to the employee as required by Sec. 825.300 provided that the employer’s failure to timely designate leave does not cause harm or injury to the employee. In all cases where leave would qualify for FMLA protections, an employer and an employee can mutually agree that leave be retroactively designated as FMLA leave.” Even if you do not designate FMLA in a timely manner, the employee must be provided the same leave benefits and job guarantees he or she should receive under the FMLA. It is always safest to make retroactive designations with the consent of the employee. If you wish to make the designation retroactive despite the employee’s objections, you should do so only with the advice of an attorney.
In all scenarios below, the organization is an FMLA-covered employer with at least 50 employees within 75 miles of the employee’s worksite.
Jessica has worked for the employer for six months. She notifies her manager that she is pregnant and due in two months. In addition to the FMLA leave policy, the organization has a policy that provides up to six weeks of personal leave for employees who have worked at least 90 days.
The employer should provide Jessica with the Notice of Eligibility and Rights & Responsibilities (WH-381). Here is how to complete Section 1 based on this scenario:
[X] Are not eligible for FMLA leave, because (only one reason need be checked, although you may not be eligible for other reasons):
[X] You have not met the FMLA’s 12-month length of service requirement. As of the first date of requested leave, you will have worked approximately 8 months toward this requirement.
The employer should also include a letter stating that although Jessica is not eligible to use the FMLA for this leave, she may be (or is) eligible for a personal leave of absence for up to six weeks. The letter should describe any application or approval process for the personal leave of absence.
Ed is a full-time employee who has worked for the employer for six years. He called in today because his father is in the hospital. Ed stated that he will need time off to care for his dad and may not be back to work for several weeks.
This call is enough information to treat it as a request for FMLA leave. The employer, within five days, sends Ed the Notice of Eligibility and Rights & Responsibilities (WH-381) and the Certification of Health Care Provider for Family Member’s Serious Health Condition (WH-380F).
Ed returns the certification within 15 days, confirming that he is needed to care for his dad for the next 12 weeks. Within five days of receiving this certification, the employer sends Ed the Designation Notice (Form WH-382) to approve Ed’s leave under the FMLA.
If the employer forgot to send the designation notice within five days of receiving the certification form, but Ed was able to take leave with no discipline, termination or loss of benefits, the employer can send out the designation form late and still track the entire leave time against Ed’s 12 weeks of FMLA leave.
If the employer did not designate the leave as FMLA and consequently Ed’s health benefits were dropped at the end of the month, the employer violated Ed’s rights under the FMLA. The employer should take immediate action to correct the FMLA violation and reinstate health benefits.
Ingrid, who meets all FMLA eligibility criteria, turns in a doctor’s note stating that she will be under her doctor’s care all of next week for surgery and follow-up treatment.
This is clearly an FMLA-related and covered absence. The employer should send Ingrid the Notice of Eligibility and Rights & Responsibilities (WH-381) and the Designation Notice (Form WH-382) approving leave within five days. There is no need to ask for a medical certification because the doctor’s note provided sufficient information.