Family Leave: A Favorite of Plaintiffs’ Lawyers

“FMLA was one of my favorite statutes when I was a plaintiffs’ lawyer,” says attorney Tam Yelling. The law had a great intent, she adds, but it confuses employers.

Yelling, who is an associate in the Birmingham, Alabama office of Constangy, Brooks & Smith, LLP, made her remarks at a recent SHRM Legal and Legislative Conference in Washington, DC.

FMLA Notice Requirements

This is a real hot potato, says Yelling. She uses “Mitch” as an illustration of why notification documents matter.

“Everyone has a Mitch,” Yelling says. “Mitch is absent all the time. Each time it’s for a different reason—his car broke down; he has the 24-hour flu; he got a flat tire; he didn’t know he was scheduled to work. On several occasions, you talk to Mitch and inform him that if his attendance does not improve, he’s going to be terminated. It does not, and you fire him.

“A year later, Mitch files a lawsuit alleging that he was terminated on the basis of absences that should have been covered under the FMLA. How do you defend? Your only hope is carefully maintained records. Courts and juries don’t expect that employees will have documents, but they do assume that employers maintain a smooth-running operation and that includes complete documentation,” Yelling says.

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Yelling breaks the notice requirements down into four steps:

Step One: Employer Notice

First comes general notice of FMLA/CFRA to all employees. Yelling suggests that this include:

• DOL poster of employee’s rights and responsibilities
• At a minimum, poster in handbook or distributed once a year
• FMLA/CFRA policy that specifies:
  • Substitution of paid benefits
  • FMLA call-in number
  • Notice and request procedure

Step Two: Employee Notice

Employees have to give notice 30 days in advance or “as soon as possible and practical.” In practice, says Yelling, this means that employees can request leave at the last minute and there’s not much you can do about it.

Step Three: Eligibility/Rights & Responsibilities

Next, within 5 days of receiving employee notice, you must notify the employee of the employee’s eligibility (or not) for FMLA/CFRA leave.

The employer must also provide written notice detailing the specific expectations and obligations of the employee, including the use of paid leave, and outlining any consequences of a failure to meet those obligations.

DOL’s Notice of Eligibility and Rights & Responsibilities (Form WH-381) provides proper notice to employees.

Step Four: Designation (form)

Within 5 days of getting information back from the employee (such as a certification), the employer must make a designation determination. DOL’s Designation Notice to Employee of FMLA Leave (Form WH-382) satisfies all regulatory requirements for the notice of designation.

In tomorrow’s Advisor, Yelling reveals the biggest problem she sees with FMLA, and we introduce a brand-new, comprehensive resource for California employers that answers all your questions about FMLA, CFRA, and everything else leave-related.