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1. on FMLA

2. Purpose of FMLA
O The DOL states that “the FMLA allows
employees to balance their work and family
life by taking reasonable unpaid leave for
certain family and medical reasons. The
FMLA seeks to accomplish these purposes in
a manner that accommodates the legitimate
interests of employers, and minimizes the
potential for employment discrimination on the
basis of gender, while promoting equal
employment opportunity for men and women.”
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3. Which Employers Are
Covered?
O Those with 50 or more employees
O Employees who have worked for at least
12 months and at least 1250 hours during
the previous 12 months
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Which Employees Are
Eligible?

4. What Does the FMLA
Provide?
O Up to 12 weeks of unpaid leave in a 12-month
period for the serious health condition of the
employee or a family member, for the birth or
adoption of a child, or because a child, parent
or spouse of the employee has been called to
active duty in the military
O Up to 26 weeks of unpaid leave during a 12-
month period to care for a spouse, child or
parent who is an injured member of the
military
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5. What is a “serious health
condition?”
O Pregnancy or prenatal care
O Chronic, long term or permanent medical conditions
O Any condition that causes at least 3 consecutive days
of absence combined with 2 or more treatments by a
health care provider, where the first health care visit
occurs within 7 days of the onset of the incapacityƒ
O Any condition that causes a period of incapacity of
any length combined with inpatient care
O Consider this overlap: An FMLA “serious health
condition” is Technically not the same as a “disability”
under the Americans with Disabilities Act. However,
as a result of the ADAA, the definitions are closer
than ever before.
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6. What are the Employer’s
Responsibilities?
O Ensure that employees receive the required FMLA rights notices
Notify employees whether leave is designated as FMLA leave and
the amount of leave that will be deducted from the employee’s
FMLA entitlement. (see grid in next slide)
O Train Managers on FMLA to ensure open communication with HR
when employees are requesting leave. Any knowledge that leave
may be for a FMLA qualifying reason should be communicated, so
HR can notify the employee of their rights under FMLA.
O Allow 15 calendar days for employee to obtain medical certification
O Grant intermittent leave where requested
O Restore an employee returning from leave to the same or a
substantially equivalent position held before the leave ƒ
O Don’t retaliate against employee for taking leave
O If an employer was not made aware that an employee was absent
for FMLA reasons and the employee wants the leave counted as
FMLA leave, timely notice (generally within two business days of
returning to work) that leave was taken for an FMLA-qualifying
reason.
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7. FMLA Paperwork
Form Description Notes
Employee
Notice – Leave
Request Form
30 day notice is requested if the leave is foreseeable;
notice "as soon as practicable" when the need to take
FMLA leave is not foreseeable ("as soon as practicable"
generally means at least verbal notice to the employer
within one or two business days of learning of the need
to take FMLA leave)
Verbal or Written Notice
Leave Request Form should be
completed upon the verbal
notice.
Notice of
Eligibility &
Rights &
Responsibilities
Notice stating eligibility for FMLA leave or not. Also
Rights and Responsibilities. Notice must be given to
employee within 5 business days of their notifying the
employer.
Written Notice
Can use your own
or Optional form WH-381
Designation
Notice
provide a written notice designating the leave as FMLA
leave and detailing specific expectations and obligations
of an employee who is exercising his/her FMLA
entitlements. Give to employee within 5 business days
after receiving the employee's notice of need for leave.
Written Notice
Can use your own
or Optional form WH-382
Certification of
Health Care
Provider
An employer may require that the need for leave for a
serious health condition of the employee or the
employee's immediate family member be supported by a
certification issued by a health care provider. The
employer must allow the employee at least 15 calendar
days to obtain the medical certification.
Can use your own
or Optional form WH-380
Note: For clearer communication, each of these notices should be accompanied with a letter.
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8. What Are Employee’s
Responsibilities?
O Provide at least 30 days notice where the
need for leave is foreseeable
O Provide as much notice as possible where
the need for leave is not foreseeable
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9. Substituting Paid Leave
O An employer can require or an employee
can voluntarily elect to use paid leave
benefits during FMLA leave.
O The substitution of accrued sick or family
leave is limited by the employer's policies
governing the use of such leave.
O The policy should be enforced
consistently to avoid discrimination.
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10. What Records Must Be
Retained?
O Employers are not required to submit any
records to the DOL unless specifically
requested by a DOL official.
O No particular order or form of records is
required. However, employers must keep the
records specified by FMLA regulations for no
less than three years and make them
available for inspection, copying and
transcription by DOL representatives upon
request.
O FMLA Files must be maintained as
confidential medical records in separate
files/records from the usual personnel files.
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11. Required Posting
O Post the required FMLA poster of Right
and Responsibilities WH Publication1420
O Notify employees of FMLA rights in
employee handbook and inform new hires
of FMLA policies
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12. What are the Potential
Penalties?
O Back pay
O Reinstatement
O Benefits
O Attorneys’ fees
O Not posting rights: may be subject to a
civil money penalty of up to $110 for willful
failure to post
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13. What you can do to Stay on the
Safe Side of FMLA!
O The employee does not have to mention FMLA when requesting
leave to meet the FMLA requirement, but may only explain why the
leave is needed.
O Employers must choose 1 of 4 cycle options concerning leave
timeframes – calendar year, rolling year, etc. Choose 1 and add it
to policy and handbook.
O Employers should have policies on FMLA clearly stated in the
handbook.
O In order to avoid discrimination claims, each employee should be
treated in the same manner according to the policy and handbook.
O Key Employees Exception: Under limited circumstances where
restoration to employment will cause "substantial and grievous
economic injury" to its operations, an employer may refuse to
reinstate certain highly-paid, salaried "key" employees. In order to
do so, the employer must notify the employee in writing of his/her
status as a "key" employee (as defined by FMLA), the reasons for
denying job restoration, and provide the employee a reasonable
opportunity to return to work after so notifying the employee.
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