FMLA Part III: Notice and Certification

Eligible employees using FMLA leave must provide a 30-day advance notice to take FMLA leave when the need is foreseeable, otherwise notice is to be provided as soon as practicable. An adequate amount of information must be provided in order for the employer to determine whether the FMLA applies to the leave request. If the employee is applying for FMLA leave for the first time, the employee is not required to assert FMLA rights or even mention the FMLA. If the employee has previously been provided FMLA-protected leave, the employee then must specify the qualifying reason or need for FMLA leave.

As an employer, you have some important responsibilities in order to remain compliant and avoid costly fees. A notice approved by the Secretary of Labor explaining rights and responsibilities under FMLA must be posted and included in the employee handbook or written guidance concerning employee benefits. The FMLA poster provided by the Department of Labor here is available for use by employers. Once the employee requests FMLA leave or it is determined the leave is for FMLA purpose, the employer is responsible for notifying the employee of the rights and responsibilities under the FMLA and explain that the leave will be designated and counted as FMLA leave. Optional forms WH-381 and WH-382 are also provided on the Department of Labor website for employer use.

Employers can require certification from a health care provider when FMLA leave is requested, as well as a certification that they are fit to resume work upon their return. The DOL has also provided forms WH-380E and WH-380F for employer use regarding certification.

As always, ERA welcomes the opportunity to assist you with any of your compliance needs. Please do not hesitate to contact us to find out how we can be of valuable service to you.

*This article is intended to provide general guidance and should not be considered legal advice.

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FMLA Part I: Who Is Eligible?

During our many years of service to our clients, the regulation that brings the most questions is the Family Medical Leave Act (FMLA). In a concentrated effort to answer questions and bring clarity to the Act, we are going to divide the FMLA information into three distinct parts and actually give you links to appropriate forms directly from the Department of Labor website.

The FMLA allows employees to take up to 12 work weeks, consecutive or intermittent, depending on the circumstances, unpaid, job-protected leave in a 12-month period for specified family and medical reasons. Employees are eligible if they:

  • Work for a covered employer
  • Have worked for the employer for a total of 12 months
  • Have worked at least 1,250 hours over the previous 12 months
  • Work in the United States where at least 50 employees are employed by the employer within 75 miles.

There are a few exceptions related to military service. If an employee had a break in service during the 12 month employment requirement or 1,250-hour requirement due to fulfillment of the employee’s National Guard or Reserve military service obligation, the time performing the military services counts in determining whether the employee has been employed for at least 12 months or 1,250 hours. Additionally, there are military family leave entitlements, including military caregiver leave and qualifying exigency leave. Military caregiver leave allows eligible employees up to 26-weeks (in a single 12 month period) unpaid leave to care for a service member with a serious illness or injury that is the employee’s spouse, son, daughter, parent or next of kin. To find out more details on military caregiver leave and what is classified as a “qualifying exigency,” click here to be directed to the Department of Labor website.

Our next post in the series will discuss leave entitlement.

*This article is intended to provide general guidance and should not be considered legal advice.