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Editor's Note: This checklist is intended to guide practitioners through the process of managing requests for leave under the Family and Medical Leave Act (FMLA). For additional guidance on employee leave, see the checklists, Best Practices for Navigating Employee Leave Under the FMLA and the ADA, Developing a Family and Medical Leave Act Policy, and Best Practices for Handling Employee Leave Requests.
Contributed by Daniel Schlein, Principal at the Law Office of Daniel Schlein.
(See the related Practical Guidance, Letter Providing Employee Notice of Eligibility and Rights and Responsibilities under the FMLA)
⃞ A covered employer is required to provide a Notice of Eligibility and Rights & Responsibilities (Notice of Eligibility) to an eligible employee within five business days after the employee informs the employer of the need for FMLA leave.
⃞ The employee doesn't need to mention the FMLA specifically but rather need only provide sufficient information for the employer to determine that the leave may qualify under the FMLA as well as the anticipated timing and duration of leave. In contrast with the Notice of Eligibility, the employer must provide the Notice of Rights and Responsibilities and the subsequent Designation Notice in writing.
Comment: While the U.S. Department of Labor permits the employer to convey the Notice of Eligibility orally, it is sound practice to communicate the notice in writing to reduce the possibility of factual disputes in any subsequent litigation.
⃞ In contrast with the Notice of Eligibility, the employer must provide the Notice of Rights and Responsibilities and the subsequent Designation Notice in writing. The Notice of Rights and Responsibilities and the Designation Notice typically are issued together. Electronic distribution of the Notice of Rights and Responsibilities is permissible.
⃞ The Notice of Rights and Responsibilities, which accompanies or is combined with the Notice of Eligibility, must include any requirement for the employee to furnish certification to substantiate a serious health condition, serious injury or illness, or qualifying exigency arising out of active duty or call to active duty status, and the consequences for failing to do so.
⃞ Note that the employer may but need not use the Notice of Rights and Responsibilities to inform an employee seeking FMLA-qualifying leave of any policy requiring submission of periodic status reports or statements of intent to return to work.
⃞ The notice should specify which method the employer is using to calculate the 12-month period in which the employee may take up to 12 weeks of leave. The employer should apply its method of calculation uniformly. (For more information, see the Guide to FMLA and Federal Leave Laws chapter, FMLA Leave Calculation and Limitations).
Comment: If an employer doesn't adopt one of the permissible ways to define the leave year under the FMLA, an employee requesting leave will be entitled to apply the method that is most advantageous to him or her. It therefore behooves an employer to have a clear policy on how the FMLA leave year will be calculated and to ensure that the policy is distributed or otherwise accessible.
⃞ Furnishing an employee with the Notice of Eligibility and Notice of Rights and Responsibilities doesn't relieve the employer of its separate obligation under the FMLA regulations to provide the employee with a Designation Notice once it has obtained enough information to determine whether the leave qualifies as FMLA leave.
(See the related Practical Guidance, Sample Letter-FMLA Designation Notice and Sample Letter-Approval of FMLA Leave for Serious Health Condition)
⃞ An employer must inform an employee who requests FMLA leave whether the leave qualifies under the FMLA by issuing a Designation Notice. The Designation Notice apprises the employee whether the employer has designated the leave as FMLA-qualified or whether it needs further information in order to make that determination.
⃞ The Designation Notice generally follows issuance of a Notice of Eligibility and must always be in writing.
⃞ When an employer has enough information to determine whether the leave is being taken for a FMLA-qualifying reason (e.g., after receiving a certification), it must notify the employee within five business days absent extenuating circumstances. If it has sufficient information to designate the leave as FMLA leave immediately after the employee notifies it of the need for leave, the employer may provide the employee with the Designation Notice at that time.
⃞ Failure to provide any required notices under the FMLA may constitute an interference with, restraint, or denial of the exercise of an employee's FMLA rights.
⃞ Only one Designation Notice is required for each FMLA-qualifying reason within each applicable 12-month period, regardless of whether the leave taken due to the qualifying reason will be a continuous block of leave or intermittent or reduced schedule leave.
⃞ If the employer determines that the leave doesn't qualify as FMLA leave, the employer must notify the employee of its determination. In that event the employer can forego a multi-part Designation Notice and instead issue a simple written statement denying the leave request.
⃞ The employer must notify the employee of the amount of leave counted against the employee's FMLA leave entitlement. If the amount of leave is known at the time the employer issues the Designation Notice, the employer must tell the employee the number of hours, days, or weeks that it will count against the employee's FMLA leave entitlement in the Designation Notice.
⃞ If it is not possible for the employer to provide the hours, days, or weeks that will be counted against the employee's FMLA leave entitlement (such as where the employee has unforeseeable intermittent leave), then the employer must provide notice of the amount of leave counted against the employee's FMLA leave entitlement upon the request of the employee, but no more often than once in a 30-day period and only if leave was taken in that period.
⃞ If the employer requires paid leave to be substituted for unpaid FMLA leave, or that paid leave taken under an existing leave plan be counted as FMLA leave, it must inform the employee in the Designation Notice.
⃞ If the employer will require an employee returning from FMLA leave to provide a fitness certification, it must apprise the employee of this fact in its Designation Notice.
⃞ In order to require a fitness-for-duty certification (see below), an employer must provide an employee with a list of the employee's essential functions no later than the time it delivers the Designation Notice confirming the leave as covered under the FMLA. It must also state in the Designation Notice that the fitness certification must address the employee's ability to perform those essential functions.
(See the related Practical Guidance, Sample Letter-Employer Request for Medical Certification)
⃞ The employee must provide a complete and sufficient certification if the employer requires it.
⃞ A certification may be inadequate for several reasons, including failure to complete one or more applicable entries or because it is vague, ambiguous, or non-responsive.
⃞ Where the certification is incomplete or insufficient, the employer must give the employee at least seven calendar days to provide additional information.
⃞ If the employee still has not cured the deficiency in a resubmitted certification, the employer can deny FMLA leave.
⃞ At the time the employer requests certification to substantiate the purpose of the leave, it must also advise the employee of the anticipated consequences of an inadequate response. It is the employee's responsibility either to supply a complete and sufficient certification or to give the health care provider who will complete the certification any necessary authorization from the employee or the employee's family member in order for the health care provider to provide a complete and sufficient certification.
⃞ An employer that has reason to doubt the validity of the medical certification may require the employee to obtain a second opinion at the employer's expense. The employer can designate the health care provider who will furnish the second opinion as long as the employer doesn't employ the provider on a regular basis.
⃞ If the opinions of the employee's and the employer's designated health care providers differ, the employer can require the employee to obtain certification from a third health care provider, again at the employer's expense.
⃞ The employer and the employee must act in good faith and jointly agree on the selection of the health care provider who will furnish the third certification. The third opinion is final and binding. If the employer doesn't act in good faith to reach agreement on this issue, it will be bound by the first certification.
⃞ At the employee's request, the employer must provide copies of the second and third medical opinions, as applicable, within five business days absent extenuating circumstances.
⃞ If the employee has to travel to obtain the second or third opinion, the employer must provide reimbursement for any reasonable out-of-pocket travel expenses. Except in very unusual circumstances, an employer can't ask an employee to travel beyond the employee's normal commuting distance to obtain a second or third opinion.
⃞ While the employer awaits the outcome of the second opinion, the employee remains entitled to all of the benefits of the FMLA, including maintenance of group health benefits.
(See the related Practical Guidance, Letter to Employee Returning From FMLA Leave)
⃞ As a condition of restoring an employee whose FMLA leave was occasioned by the employee's own serious health condition that rendered the employee unable to perform the job, an employer may have a uniformly-applied policy or practice that requires all similarly-situated employees (i.e., same occupation, same serious health condition) who take leave for such conditions to obtain and present certification from the employee's health care provider that the employee is able to resume work.
⃞ The employee has the same obligations to participate and cooperate (including providing a complete and sufficient certification or providing sufficient authorization to the health care provider to provide the information directly to the employer) in the fitness-for-duty certification process as in the initial certification process.
Comment: Although the FMLA doesn't require the employer to establish a policy governing fitness certifications, promulgating such a policy is good practice because it may assist the employer in demonstrating that it is not applying the requirement in a discriminatory fashion.
⃞ An employer normally provides the employee a certification form and asks the employee to give it to his or her health care provider to complete. The certification from the health care provider must specify whether the employee is able to resume work. In addition, an employer may require that the certification specifically address the employee's ability to perform the essential functions of the job.
Comment: An employer is not legally required to have job descriptions, but a well-drafted description distinguishes functions of a position that are essential from those that are marginal or peripheral.
⃞ The employer may seek a fitness certification only with regard to the particular health condition that prompted the employee's request for FMLA leave. The employer may not use a fitness certification as a “fishing expedition” to learn about aspects of the employee's physical or mental condition beyond those necessary to evaluate the leave request.
⃞ The employer can delay the employee's return to work until the employee submits the fitness certification unless the employer failed to inform the employee adequately of this requirement in its Designation Notice.
⃞ If the employee never produces the fitness certification and doesn't request additional FMLA leave, the employee is no longer entitled to reinstatement, provided the employer gave proper notice of the fitness certification requirement in its Designation Notice.
Comment: Note that the requirements of the Americans with Disabilities Act (ADA) also apply. If the employer intends to have its own health care provider conduct a medical examination of an employee returning from FMLA leave, the ADA requires that the examination be job-related and consistent with business necessity and that the employer bear the expense. The ADA doesn't require an employer to retain an employee who is unable to perform the essential functions of the position with or without reasonable accommodations. However, if an employee returning from FMLA also has a disability under the ADA, the employer must independently assess whether the employee can perform the role's essential functions with reasonable accommodations.
⃞ The employee is responsible for any costs incurred in obtaining the fitness certification, including time or travel costs.
(See the related Practical Guidance, Letter to Employee Not Returning From FMLA Leave)
⃞ If the employer's PTO policy allows an employee to accrue paid time, it should be paid to the employee within the time permitted under state law.
⃞ If an employee gives unequivocal notice of intent not to return to work (29 C.F.R. § 825.311), the employer's obligations under FMLA to maintain health benefits (subject to COBRA requirements) and to restore the employee end. These obligations continue, however, if an employee indicates he or she may be unable to return to work and expresses a continuing desire to do so.