Communicating the FMLA (Part 4)
Posted June 10, 2016
As an employer, you are responsible in all circumstances for designating leave as qualifying under the Family and Medical Leave Act (FMLA) and giving notice of the designation to the employee. This could require you to review a certification and compare the information to the regulatory definition of a serious health condition, a serious injury or illness (family military leave), or a qualifying exigency (family military leave). The review should help you make a designation determination, subsequently providing a designation notice to the employee. The designation notice must:
- Be provided in writing within five business days of having enough information to determine whether the leave is FMLA-qualifying;
- Be provided for each FMLA-qualifying reason per applicable 12-month period (additional notice is required for any changes in the designation information);
- Include your designation determination, and any substitution of paid leave and/or fitness for duty requirements; and
- Provide the amount of leave that is designated and counted against the employee’s FMLA entitlement, if known. If the amount of leave is not known at the time of the designation, you must provide this information to the employee upon request, but no more often than once in a 30-day period and only if leave was taken in that period.
If the requested leave is not FMLA-qualifying, the notice may be a simple written statement that the leave does not qualify and will not be designated as FMLA leave. You may use the Department of Labor’s Form WH-382, but are not required to do so.
If you are unable to determine whether a leave request should be designated as FMLA-protected because a submitted certification is incomplete or insufficient, you are required to state in writing what additional information is needed. You may use the designation notice to inform the employee that the certification is incomplete or insufficient and identify what information is needed to make the certification complete and sufficient.
Only one designation notice is required for each FMLA-qualifying reason per applicable 12-month leave year period, regardless of whether the leave will be a continuous block of leave or intermittent or reduced schedule leave. If the information provided in the designation notice changes (e.g., the employee exhausts the FMLA leave entitlement), you must provide, within five business days of receipt of the employee’s first notice of need for leave subsequent to any change, written notice of the change.
If you want the employee to provide a fitness-for-duty certification before returning to work after taking leave for his or her own serious health condition, you need to indicate this in the designation notice. If you want the employee’s health care provider to address whether the employee can perform the essential functions of the job with the fitness-for-duty certification, you need to include a list of those essential functions with the designation notice.
The next and final installment of the Communicating the FMLA series will address all notices and related consequences for failure to provide them.
This article was written by Darlene Clabault of J. J. Keller & Associates, Inc.
J. J. Keller's Family and Medical Leave Act (FMLA) Consulting Services can help your company ensure compliance with FMLA requirements and minimize the law’s burden to your organization.
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