The task of handling leave requests pursuant to the Family and Medical Leave Act (“FMLA”) became more formalized earlier this year when the U.S. Department of Labor’s (“DOL ”) revised FMLA regulations took effect on January 16, 2009. Those regulations provide greater clarity for employers with respect to the processing of FMLA leave requests, but in doing so, they impose strict time limits for communicating with employees who have requested leave, and require employers to provide particular types of information to employees who have made the requests. Employers should set up a regularized leave response process that ensures compliance with both the timing and notice content requirements of the new regulations. This blog provides a very basic summary of some of the regulations’ notice provisions to assist employers in developing a leave response process. At a minimum, an effective response process should include the following elements:
1. If the designated FMLA representative is out for an extended period of time, assign another employee to monitor FMLA leave requests until the designated representative returns to work. In addition, make sure that employees are aware that another individual has been temporarily assigned responsibility for FMLA requests.
2. Once an FMLA request has been made, or you have knowledge that an employee’s leave may be for an FMLA-qualifying reason, determine whether the employee is eligible for FMLA leave. For example, determine whether the employee:
- worked for the employer for 12 months;
- worked for 1,250 hours;
- works at a site with 50 or more employees within 75-miles; and
- has an FMLA-qualifying condition (if you can).
3. Notify the employee regarding eligibility within five days, and provide a notice describing the employee’s rights and responsibilities under the FMLA (e.g., employee benefits during leave, substitution of paid for unpaid leave, providing medical certification, reinstatement, etc.). While the “Notice of Eligibility” may be oral, the “Notice of Rights & Responsibilities” must be in writing and contain particular types of information. A sample form that combines the two notices is available from DOL.
4. In many circumstances, the employee will have to provide medical certification to support the leave request. Offer the appropriate medical certification form to the employee at the time the “Notice of Eligibility” and “Notice of Rights & Responsibilities” are provided, unless, of course, the employee is not eligible. Different certification forms are used depending on the reason leave is requested (e.g., serious health condition of employee or family member, military leave exigency, or service member’s illness or injury). The employee has 15 days to return the medical certification form, unless the employee is unable to do so, despite the employee’s good faith efforts.
5. When the medical certification is returned, review the documentation to make sure that it is complete. If the form is incomplete or insufficient (e.g., the information provided is vague, ambiguous, or non-responsive), advise the employee in writing of the additional information necessary to complete the medical certification form. The employee must be given at least seven calendar days to cure any deficiency. Also inform the employee of the potential consequences for failing to providing adequate medical certification (i.e., denial of FMLA coverage until sufficient medical documentation is provided).
6. Once sufficient documentation is received, determine whether the employee is requesting and/or taking leave for an FMLA-qualifying reason, and issue a “Designation Notice” regarding the leave within five business days. This notice must be provided even if the employer has determined that the leave will not be designated as FMLA-qualifying. The notice must provide the employee with several pieces of information, including, but not limited to:
- the number of hours counted against the individual’s leave entitlement, if known;
- whether the employer will require substitution of paid leave time;
- whether the employee has requested use of paid time during the leave;
- whether second and/or third medical opinions are being sought; and
- whether a fitness-for-duty certification will be required before the employee returns to work.
The Designation Notice may be given at the same time as the Eligibility Notice, if the employer has sufficient information to do so when it provides the Eligibility Notice.
7. Use a tickler system to set reminders or track due dates for when specific notices need to be provided and when employee information is due.
The new regulations are extensive and complex. The basics described above are not a complete statement of an employer’s FMLA obligations, but are intended only to provide very general guidance on some of the regulation’s notice provisions.