While HR professionals may sometimes struggle with the murky areas of employment law, in a leave of absence situation, there should be no mistaking some of the more immediate obligations under the Family and Medical Leave Act.
Within five business days of receiving a request for leave, for example, you must provide three types of written notice to your employee: (1) Eligibility notice; (2) Rights and responsibilities notice; and (3) Designation notice.
While the U.S. Department of Labor provides all three sample forms for guidance, these forms are optional so some employers are inconsistent in how they notify their employees of their FMLA rights. This inconsistency or, more gravely, a lack of notice can be costly, particularly because company policies may have an impact on your employee’s FMLA rights that violate the law if it causes him or her to forfeit those rights.
It is not enough for you to simply provide notice through your employee handbook’s summary of rights or with a poster in the lunchroom that notifies your employees of their FMLA rights. Federal law requires that employers provide a written notice stating whether a leave will be designated as FMLA leave and detailing specific expectations and obligations of the employee.
FMLA Priority No. 1: Notice Packet – Chockfull of Relevant Information
In a leave situation — for whatever health- or family-related issue (certain or uncertain as to the qualifying reasons), your objective is the same. Supply your employee with all the information he or she will need to know about:
- whether the leave will be designated as FMLA-qualifying and counted against the employee’s annual 12-week entitlement;
- how much leave is available;
- whether and how much of the leave will be paid;
- required medical certifications;
- any requirement to make premium payments to maintain health benefits;
- required fitness-for-duty certifications;
- whether the employee is designated as “key”;
- the right to job reinstatement and restoration of benefits; and
- the consequences of failing to meet the employer’s requirements.
Even if your employee doesn’t speak up and yet you discover that he or she may need leave for an FMLA-qualifying reason, you’re on the hook to notify him or her within five business days of his or her eligibility to take the leave. See 29 C.F.R. §825.300.
Once you have enough information to determine whether the leave qualifies for FMLA coverage, you need to get busy figuring out how much of the leave will be counted against the employee’s annual 12-week entitlement, if possible.
If it is not possible to calculate the number of hours, days or weeks that will be counted against FMLA leave (such as in a sudden, unforeseen event that may warrant intermittent leave), you still must provide that information every 30 days during the leave period.
Remember to inform your employee of (1) the amount of FMLA leave that he or she has available; and (2) his or her right to substitute paid leave and whether your company requires the substitution for paid leave. You must make clear the conditions related to substitution and your employee’s entitlement to take unpaid leave if he or she does not meet the stated conditions for paid leave.
Make sure your employee is aware too of the potential liability for the payment of health insurance premiums paid by the employer during leave if he or she fails to return to work for at least 30 days.
If you require a fitness-for-duty certification for reinstatement (a sound and reasonable request by an employer), then you must provide notice of that requirement with the designation notice. If you expect the certification to address whether your employee can perform the essential functions of his or her job, then you also must provide a list of those essential functions with the notice.
Once you have adequate information to designate the leave as FMLA-qualifying (this could be immediately after receiving notice of the need for leave), all three notices may be given to your employee at the same time.
No Delay, No Excuses
As complex as FMLA may appear at times, employer’s notice requirements should be clear as the sound of a starting pistol. It’s your very first step in complying with federal leave law, while responding to your employee’s need and evaluating his or her FMLA eligibility in the process.
For further information, see ¶233 of the Employer’s Notice Requirements in the Family and Medical Leave Handbook.