Updated: Jul 12, 2018
FMLA (Family Medical Lave Act) rights are an important and vital part of maintaining a healthy and productive workforce. However, it's not always easy to fully understand how the law works or how to properly communicate an employee's rights.
If you've felt an overwhelming sense of dread when an employee comes in to ask for FMLA (Family Medical Leave Act) paperwork, or if you're not sure of when you should approach an employee with leave paperwork (especially if they haven't asked for it), it may be time to consult a legal expert. A lawyer specializing in employment law can help you create a solid plan and process to eliminate the confusion of when and how to talk about — and distribute — FMLA paperwork.
When to Hand Out FMLA Paperwork
If an employee asks for FMLA paperwork, give them all the necessary information and documents within the same day as their request. That's the easiest, cut-and-dry approach. In many cases, that's how it's typically handled. But in other cases, it's not as easy to spot the right opportunity. This is when it pays to mix a little empathy with legal formality. If you notice any of the following, consider pulling an employee aside for a conversation about FMLA qualifying conditions:
An employee mentions an upcoming surgery
An employee has multiple visits to the doctor for a medical condition
An employee is caring for their parent or child with a medical condition
An employee is pregnant or has an expectant partner
An employee is adopting a child
The above is only a short list of some common examples. There are more instances for FMLA qualifying conditions. If you’re not sure whether or not an employee’s circumstance qualifies for FMLA, consider consulting with an attorney.
How to Distribute FMLA Paperwork
Whether your paperwork is issued by a dedicated manager or a human resources department, it's important to cover the following:
Cover Letter. Include a cover letter stating what the paperwork is for. For example: “You have requested the following paperwork” or “(Employee Name) has reason to believe you may qualify for FMLA leave.”
Medical Forms. Include a medical certification form for medical conditions. If your business doesn’t have one on file, the Department of Labor has free standard forms to use.
Additional Documentation. If the condition isn’t considered medical, such as the birth or adoption of a child, include any information on what documentation is required for the employee to provide. If you’re not sure about what this should include, contact Tipler Law to schedule a review.
Due Dates. Clearly state when the paperwork is due and what detail requirements are needed for filling out the medical forms.
Easy Navigation. Highlight sections to indicate which portions are to be completed by the employee and which sections are to be completed by the medical provider.
Contact Info. Include information on who they can contact for any questions and how to request a personal meeting to discuss the matter if they desire.
Know Your Deadlines and Stick to Them
Create a schedule for how FMLA paperwork is handled and train every staff member handling the paperwork to stick to it. This will help to avoid any conflict or ambiguity on due dates and FMLA approvals. Be sure to stick to what the law mandates to keep everything on the employer side in order.
Here’s what to do:
Clearly state the due date on the FMLA form. This is 15 calendar days after the form is given to the employee.
If the form is returned after the 15 calendar days you have the option of:
Denying the application of FMLA to any dates taken to prior to the date of the request.
Deny the FMLA leave request altogether.
Whichever option you choose, implement it consistently with all employees.
FMLA Eligibility Isn't Automatic
Check your systems to see if you have an easy way to determine if the employee has worked for 12 months and for at least 1250 hours in the last 12 months. Both requirements must be met.
Note: There are some exceptions to this for certain types of employees such as those employed in a school district. If they haven’t worked the time, leave requests can be denied. If you’re not sure, don’t navigate this alone. Give us a call for a full review.
Review All Medical Certifications
For a requested leave involving a medical condition, make sure the form is completed in as much detail as possible. It’s the employee’s responsibility for providing a complete and sufficient certification. If the form is missing information, such as the date the condition began, treatment schedule, or anticipated time needed for leave, return the form to the employee with written notice that describes what additional information is needed.
The medical provider should provide enough information that you are able to determine which category the condition falls into, as well as a summary of medical facts that support the certification. If the information is vague or unclear return the form to the employee and include a written notice describing what additional information is needed.
Be sure to clearly show the return due date of seven (7) calendar days.
Examples of vague or unclear information includes:
“Patient has been seen due to illness.” This is unclear because the term “illness” is not enough to determine if it is a serious medical condition.
“Employee must miss time as they feel they need for the next 12 months”. The medical provider must provide what level of rest is expected, such as two days per month, one hour per week, etc.
“Employee may wish to keep the ill family member company from time to time”. While companionship care or fellowship and protection for a loved one are qualifying conditions, the medical provider needs to specifically state how often this type of care is needed for the well-being of the loved one.
“Patient will be unable to perform all duties for two weeks but may be able to work up to two hours during this time period.” This is an example of contradictory information. The employee can either work a reduced schedule or not at all. Get the medical provider to be more specific.
If the provider is unable to clarify their instructions, or if the information is left vague or unclear, you may be able to deny the leave.
Designating Retroactive Leave
If a condition started prior to the formal FMLA request, and the employee had all of their paperwork turned in on time, you may have a case where you can track days retroactively. This protects the employee against attendance discipline for any days missed due to their condition, but prior to FMLA approval. This also benefits the employer by reducing the days available going forward.
Using PTO/Sick/Personal/Vacation for FMLA
FMLA is only going to cover the absence itself. Take a look at your policies and procedures to see if you can, or should, charge any paid time off to all time taken under FMLA. Some employers choose to have FMLA run unpaid and then allow the employee to use paid time to cover time in addition to FMLA. Others require FMLA and paid time to be used concurrently. Whichever you choose, be sure to apply the option consistently to all employees. Call Tipler Law to discuss the pros and cons of these options.
If a medical condition lasts for over 30 days — or if the employee is taking less time than was originally stated in the FMLA request — you may want to request recertification. This ensures you have the most up-to-date information from the medical provider regarding the condition of the employee. This also applies if the employee is taking leave to support and assist in the medical condition of a family member. Remember, FMLA leave is applied only as stated on the submitted forms. When intermittent leave is used, and more than the approved amount of time is taken, the additional days are not protected. These days can be counted towards any disciplinary procedure or policy. To avoid this, the employee will need to turn in recertification paperwork for additional time, just as they would if the time was taken consecutively.
At Tipler Law, we know and understand that employers want to focus on getting business done while being as compassionate as possible to their employees. That’s why we offer the following services, tailored to your needs:
Creating and/or updating your FMLA processes and procedures
Creating and/or updating your FMLA policies, including attendance specific policies
Training your administrators on dealing with staff absences, leave requests, FMLA, and how to deal with attendance investigations and discipline
Legal assistance for any claims or complaints arising out of FMLA or other employee leave.
Learn more about how Tipler Law can help you find the right compliance solutions by calling 937-748-9449 or visit Tipler Law online to schedule your consultation.
Disclaimer: The information in this blog post is provided for general informational purposes only. No information contained in this post should be construed as legal advice from Tipler Law or the individual author, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting on the basis of any information included in, or accessible through, this blog post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country or other appropriate licensing jurisdiction.