How to Handle a Request for FMLA Leave
Author: Meryl Gutterman, formerly of Nukk-Freeman & Cerra, P.C.
When an employee requests leave for health, medical, parenting or military reasons, the employer must determine whether the leave qualifies under the federal Family and Medical Leave Act (FMLA). If the time off requested qualifies for FMLA leave, the employer is required to provide the employee with specific notices and information regarding the employee's eligibility, rights and responsibilities under the FMLA.
To properly handle a request for FMLA leave, the employer should take the following steps.
Step 1: Confirm Employee Has Met FMLA Notice Obligations
An employee has certain obligations in order to be eligible for FMLA leave. An employer should communicate these obligations to its employees through an effective employee notice policy. A covered employer is required to display in a conspicuous place a poster prepared by the Department of Labor (DOL) outlining the basic provisions of the FMLA and telling employees how to file a complaint. A poster must be displayed at all locations even if there are no eligible employees.
If a covered employer has eligible employees, it must also provide a general FMLA notice to each employee by including the notice in employee handbooks or other written guidance concerning benefits or leave rights. An employer may provide a new employee with the notice upon hire, and may distribute the notice at any time electronically.
When requesting leave, the employee, at a minimum, must provide notice to the employer of the need to take time off for an FMLA qualifying reason. An employee does not, however, need to explicitly say "F-M-L-A" or "Family and Medical Leave Act" when requesting leave. Rather, an employee only needs to provide sufficient information to make the employer aware of the possible need for FMLA leave. An employer may require that the employee follow the employer's usual procedural requirements for requesting leave, such as providing written notice or contacting a designated individual to provide notice of the need for leave. The employee, if possible, should also provide the employer with the reason for the leave and the requested duration of the leave.
If the need for leave is foreseeable, such as for the birth of a child, placement of a child for adoption or foster care, or planned medical treatment, the employee should provide the employer with at least 30 days' advance notice before the leave begins.
If the need for FMLA leave arises unexpectedly, such as a medical emergency or a covered servicemember is injured in the line of duty, the need for leave is unforeseeable and the employee should provide notice as soon as practicable.
Step 2: Meet With Employee and Provide Eligibility Notice
If an employee requests FMLA leave with advance notice, an HR professional or a supervisor qualified to handle FMLA requests should arrange a meeting to discuss FMLA eligibility requirements and the terms and conditions of the leave.
The employer must notify the employee whether he or she meets the threshold requirements for eligibility for FMLA leave within five business days of the employee's request. The employer should provide the employee with an eligibility notice that sets forth whether the employee meets the requirements for FMLA leave or the reasons why the employee does not meet eligibility requirements, such as the employee has not worked the requisite 1,250 hours during the 12 months preceding the leave request.
The employer may provide the employee with the optional DOL form or create one of its own to fulfill the eligibility requirement. If an employer uses the DOL form, it should be aware that the form does not include the Equal Employment Opportunity Commission's safe harbor language related to the Genetic Information Nondiscrimination Act (GINA). Specifically, GINA requires that an employer identify limits on its ability to seek genetic information about an individual or an individual's family member.
The employer should provide the notice in writing and keep a copy of all notices in the employee's personnel file for at least three years.
Step 3: Provide Employee With Rights and Responsibilities Notice
In addition to providing an eligibility notice to the employee, the employer must also provide a rights and responsibilities notice, which explains the employee's rights and obligations (e.g., providing medical certification) and the consequences for failing to meet these obligations. The DOL Notice of Eligibility and Rights & Responsibilities may be used to comply with this notice requirement, or the employer may create its own form.
The employer should provide the rights and responsibilities notice to the employee in writing within five business days of when the employee requests FMLA leave or when the employer learns that the employee's leave may be for an FMLA-qualifying reason.
If applicable, the employer should include in the rights and responsibilities notice information about the employee's status as a key employee under the FMLA and the fact that the employee may be denied restoration to the same or an equivalent position following FMLA leave, as well as an explanation of the situations in which restoration may be denied. If an employer plans to deny reinstatement to a key employee who takes FMLA leave, the employer will have additional notice obligations.
The employer is obligated to respond to any questions the employee may have about his or her rights and responsibilities under the FMLA.
The employer should maintain copies of the rights and responsibilities notice provided to the employee in his or her personnel file for at least three years.
Step 4: Provide Required Certification
The employer should explain to the employee its requirements for certifying the basis for the leave. Typically, the employer may require certification of a serious health condition of the employee or the employee's family member, the serious injury or illness of a covered military servicemember, or a qualifying military exigency.
In addition to providing the employee with the Notice of Eligibility and Rights & Responsibilities, the employer should provide the employee with a Certification of Health Care Provider form to be filled out by the employee's or the employee's family member's health care provider and submitted within 15 days to the employer, if practicable. Given the unpredictable nature of unforeseeable leave, the employer may excuse the 15-day deadline if extenuating circumstances prevent the employee from providing the certification within that time frame.
The DOL provides optional forms that may be used for certification based on the facts provided by the employee:
- Certification of Health Care Provider for Employee's Serious Health Condition;
- Certification of Health Care Provider for Family Member's Serious Health Condition;
- Certification for Serious Injury or Illness of Current Servicemember for Family Military Leave;
- Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave; and
- Certification of Qualifying Exigency for Military Family Leave.
An employer may use the DOL's forms; however, the employer is permitted to devise its own forms, as long as they comply with the FMLA's requirements. HR should maintain the employee's medical information in a confidential medical file separate from the employee's personnel file.
The employer may also request information about a qualifying exigency to support a leave request, such as how long the employee may be absent, whether the employee is unable to perform job functions, whether the employee will see a health care provider or the specific event or reason for the need for leave.
Lastly, while the FMLA allows an employer to confirm a family relationship, the employer's practices to confirm such relationships should be the same for employees in same-sex marriages as those in opposite-sex marriages (e.g., if an employer does not ask heterosexual employees for a marriage license, it should not ask homosexual employees for such documentation). An employer should be careful to ensure it does not discriminate in any way.
Step 5: Provide Notice of Employer's Right to Delay or Deny Leave
The employer may conditionally grant FMLA leave pending return of the medical certification. The employer should make it clear to the employee, however, that if the medical certification is not returned within 15 days of receiving notice of the obligation (unless this time frame is not practicable), the employer has the right to delay the employee's taking of leave until the medical certification is provided.
The employer should also advise the employee that if the medical certification does not set forth a qualifying reason for the need for FMLA leave, the employer has the right to deny the employee's request for FMLA leave.
In addition, the employer should make the employee aware that if the employee takes any provisional leave leading up to the return of the medical certification, the leave may not be considered FMLA leave, and may be instead subject to the employer's policies regarding absences from work.
Step 6: Obtain Further Certification or Verification, If Necessary
If the employer does not receive a completed medical certification within the required time specified, it should send a second request for medical certification, along with another copy of the Notice of Eligibility and Rights & Responsibilities and applicable medical certification form, to the employee. The employer should again advise the employee to complete and submit the requested documentation within 15 days of the second written request.
The employer should make sure to keep a copy of this documentation in the employee's confidential medical file.
If the information provided is incomplete or unclear, the employer should provide the employee with written notice that the medical certification is incomplete or insufficient, and should give the employee seven calendar days to cure the deficiencies.
If necessary, after receiving a completed medical certification and the employee's authorization and release, the employer may contact the health care provider to clarify the medical certification. The employer must be aware of FMLA and Health Insurance Portability and Accountability Act (HIPAA) requirements to ensure compliance before contacting a health care provider.
Step 7: Provide Employee With a Designation Notice
The employer is responsible for designating or not designating an employee's leave as FMLA-qualifying. After the employer has received notice of an employee's potential eligibility for FMLA leave, provided the employee with notice of his or her rights and responsibilities under the FMLA, and received enough information to determine whether the leave qualifies for FMLA leave, such as a completed medical certification form, the employer should fill out a DOL Designation Notice form.
The Designation Notice should inform the employee whether the request for FMLA leave has been granted, along with the terms of the leave. For example, if the employer requires a fitness-for-duty certificate before returning to work, the employer should provide notice of this requirement in the Designation Notice. If the employer decides not to designate the leave as FMLA leave, the employer should advise the employee of that as well.
Absent special circumstances, the employer should provide the Designation Notice to the employee within five business days of receiving the information necessary to determine whether or not the leave is FMLA-qualifying.
If an employee qualifies for FMLA leave, an employer should designate it, even if the employee asks the employer to not count the absence as FMLA leave. The employer's responsibilities under the FMLA are straightforward: once the employer has gathered enough information to determine if the leave being taken is FMLA-qualifying, the employer is obligated to designate or refuse to designate the leave as FMLA-qualifying, regardless of what the employee wants. If an employer fails to designate the absence as FMLA leave, it may retroactively designate the leave as FMLA leave, as long as the employer's failure to provide timely notice does not cause harm or injury to the employee. If there is a dispute as to whether a particular leave is FMLA-qualifying, the employer should document any discussions it has with the employee.
If there is a change in designation status, such as when an employee exhausts his or her FMLA leave entitlement, the employer must provide the employee with written notice of the change within five business days.
The employer should maintain copies of the Designation Notices given to the employee in the employee's confidential medical file for at least three years.