It’s “What’s Up? Wednesday”. Time to talk about FMLA NOTIFICATIONS . . .

You asked: “What are the FMLA notification requirements that we need to follow?”

Renee answers: As many of you know, the Family Medical Leave Act (FMLA) is a federal law that provides eligible employees up to 12 weeks of unpaid job-protected leave in a 12-month period for certain qualifying events such as a serious health condition, to care for an immediate family member with a serious health condition, the birth and care of a new born or newly-adopted child, as well as other qualifying events. This law applies if the employer has at least 50 employees working within a 75 mile radius and if the employee has worked for that employer at least 12 months and at least 1,250 hours during the previous 12 months.

FMLA law sets forth a series of notification requirements that covered employers must follow. The first is a general notification requirement whereby covered employers must display a poster in plain view for all workers to see. The poster notifies them of their rights under FMLA, including how to make a complaint with the Department of Labor (DOL), the federal agency that enforces FMLA. In addition to displaying the poster, covered employers must also provide a general notice containing the same information as that contained in the poster within its employee handbook or in a separate written notice to be distributed to all of its employees. Employers who fail to follow this notice requirement may be subject to a civil penalty of $110 for each separate offense.

If the employer becomes aware of a possible qualifying event in an employee’s life, or if an employee actually makes a request for FMLA, a series of other notification requirements are triggered which a covered employer must follow. A Notice of Eligibility and Rights and Responsibilities must be sent within five days of the employee’s request for FMLA leave. This Notice must inform the employee if they are eligible for FMLA leave. It must also do the following: 1) provide notice as to whether the requested leave will be counted as FMLA leave; 2) provide the employer’s designated 12-month period for counting FMLA leave; 3) set forth any requirement for the employee to furnish a medical certification; 4) provide information regarding substitution of any paid leave; 5) give the employee instructions for making any premium payments for health care; and 6) give notice of job restoration rights and maintenance of benefits. If it is determined that the employee is not eligible for such leave, this notification must explain the reasons for ineligibility.

Once an employee returns any requested medical certification, the employer has five (5) days to send a Designation Notice informing the employee if the requested FMLA has been approved or denied. If approved, the Designation Notice must also tell the employee if any paid time off will be used during the leave, if they will be required to obtain a fitness-for-duty form prior to returning to work, and the amount of leave that is being counted against the employee’s FMLA leave entitlement. Failure to follow these designation notice requirements may prevent the employer from applying FMLA leave retroactively, if appropriate. In other words, if the employer fails to timely designate time off as FMLA, it may not be able to do so at a later time and that time off may not count toward FMLA leave. In this instance, the employee may be able to take time off over and above the 12 weeks provided for under FMLA lave. Retroactive applicability of FMLA leave is only permissible if it results in no harm to an employee or if it’s mutually agreed to in writing between the employer and the employee. Even under these circumstances, the DOL strongly disfavors retroactive application of FMLA leave so employers are cautioned against doing so.

FMLA audits are on the DOL’s hot list for 2014 so employers should make sure they have the required posters, policies in their handbooks and are following all applicable laws pertaining to such leaves. In the event that an employer violates an employee’s FMLA rights, the penalties can be quite substantial. In fact, FMLA is one of few labor laws where a decision maker can be held personally liable to the employee. Available damages in the event of a violation are reinstatement to the job, back pay (including wages and fringe benefits), front pay, liquidated damages of up to double the amount of damages, interest on the amount determined to be due and attorney’s fees.

If you would like to see examples of FMLA notifications and medical certification forms, check out the DOL’s web site. They offer ready-to-print forms for your use, free of charge. To see these forms or to download them, visit the DOL site by clicking here.

If you have any other questions about FMLA or any other leave of absence, send them to hrhelpline@eastcoastrm.com.

Disclaimer: The information provided on this web site is for informational purposes only and not for the purpose of providing legal advice. Use of and access to this web site does not create an attorney-client relationship between East Coast Risk Management or our employment attorney and the user or browser.

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