Sick leave policies can help determine employee notice for FMLA use

Posted January 3, 2017

By Darlene Clabault, PHR, senior editor, J. J. Keller & Associates

Administering the Family and Medical Leave Act (FMLA) has its share of challenges, including trying to figure out if an employee, who is reporting an absence, is actually putting you on notice of the need for FMLA leave. While some employers will automatically treat many such reports as a possible FMLA leave notice, having appropriate policies regarding absence reporting can help alleviate some of the guesswork.

The FMLA does not prohibit you from requiring employees to call in at certain times (at least an hour before work is to begin), to a certain individual or department (Human Resources, a third-party leave administrator, etc.). The law also doesn’t state what information employees are to provide. However, asking pointed questions about the details of the employee’s or the family member’s condition at this early stage can invite some trouble under laws such as the Americans with Disabilities Act (ADA) or the Genetic Information Nondiscrimination Act (GINA).

While you shouldn’t mandate information such as a diagnosis or other medical details, you may require information such as the following:

  • How long the employee anticipates being out;
  • Whether the employee is unable to perform the functions of the job;
  • If the absence is related to a pregnancy;
  • Whether the employee or family member is/was hospitalized overnight;
  • Whether the employee or family member is under the continuing care of a health care provider;
  • Whether the absence is due to a qualifying exigency;
  • Whether a family military member is on covered active duty or called to covered active duty status; and/or
  • If the absence is for a family member, whether the condition renders the family member unable to perform daily activities.

As you can see, none of this information actually involves personal medical information. Including these types of requirements in a company policy and employee handbook can help the employee know what is expected. Clearly communicating and reminding employees of this when they do call in can also help take some of the burden off of you in terms of deciphering whether an absence might qualify for FMLA protections. Perhaps providing employees with a small card with the information expected, so they can take it home and keep it handy when they call in, can also help remove excuses for not following the policy.

If an employee fails to provide the information, however, you are still expected to take steps to obtain it.

About the author:

Darlene Clabault

Darlene M. Clabault is a certified Professional in Human Resources and a senior editor at J. J. Keller & Associates, a nationally recognized compliance resource company that offers products and services to address the range of responsibilities held by human resources and corporate professionals. Clabault specializes in topics such as the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA), and the Affordable Care Act (ACA). She is the author of J. J. Keller’s FMLA Essentials and ADA Essentials guidance manuals, and a content resource for training, program administration services, and online management tools. For more information, visit