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FMLA WWYD challenge March 2023 answer!

Earlier this month, we posed a scenario and asked what you would do in that scenario. You had a few weeks to provide your response and your answers are in.

To recap, here was the scenario:

What would you do if Jo Employee came into your office and requested a week of FMLA leave for an absence from which she has already returned? You see, about a week ago, Jo told Sully, her supervisor, that she needed some time off to care for her mom, who she had just learned had been involved in a car accident that very morning. This announcement came about two hours after Jo got to work. Being a caring supervisor, Sully told Jo to take the time off she needed.

A week later, when Jo returned to work, Sully told her that her absence would count as attendance points because Jo hadn’t provided the required three-day notice of the leave, as required by company policy. When Jo asked Sully about FMLA leave, Sully told her to talk to you.

Jo is now in your office asking about FMLA for the absence.


You had the following options from which to choose what you thought was the BEST answer based on the FMLA regulations:

  1. Tell Jo that, based on company policy, because she did not provide at least three days’ notice of the leave, her one-week absence would be counted as attendance points.
  2. Give Jo the FMLA notices and a certification form, then remind Sully of the FMLA training he had; that FMLA leave may not be counted under no-fault attendance policies.
  3. Tell Jo that you will let her go this time, but the next time she needs time off, she needs to provide at least three days’ notice.
  4. Give Jo an FMLA certification and remind her to return it within 15 days or her absences will be counted as attendance points.

Most of you (67 percent) chose answer #2, while 33 percent of you chose #4. No one chose #1 or #3. Good job!

And the answer is…

The BEST answer, again, based on the regulations, was #2, and here’s why:

Within five days of when an employee puts you (the employer) on notice of the need for leave, you are required to give the employee an eligibility/rights and responsibilities notice. You may (but are not required to) include a certification form.

“The employer” includes anyone working on behalf of the employer, including supervisors. Therefore, the company’s FMLA obligations began when Sully learned of Jo’s need for leave.

Answer #4 didn’t address the fact that Sully appeared to need some FMLA refresher training. He should have notified you when Jo asked for leave, not when the leave ended.

The FMLA provides that employees have at least 15 days to provide a requested certification, absent extenuating circumstances. Therefore, employees might need more than 15 days, depending upon the facts involved.

If extenuating circumstances do not justify a delay in returning a certification, the employee has no FMLA protections after the 15-day window has closed and until a certification is provided. This is sometimes referred to as the “donut hole” certification provision. If an employee does not return a certification within 15 days, the only days the absences could be counted as attendance points would be during the donut hole.

Talk to you soon!

We hope you enjoyed this little adventure and maybe learned a tip or two.

Be on the lookout for our next WWYD!