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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