How employers must keep FMLA communication lines open
Because the federal Family and Medical Leave Act (FMLA) involves humans, it also involves quite a bit of communication between humans. Most of this communication is required, and failure to meet the requirements can pose risks.
For the FMLA, it all begins with a poster, which informs employees and applicants of their rights.
FMLA poster required for employees, applicants
Employers must post the “general notice,” as the FMLA regulations dub it, where employees and applicants can readily see it. The poster and text must be large and legible enough to read.
Electronic posting is sufficient as long as it meets the above criteria. Employers with employees who meet the eligibility criteria to take FMLA leave must also have a copy in any written guidance, such as an employee handbook.
If employers don’t have written guidance, they must give a copy of the general notice to each new employee upon hire. They may provide this electronically, as well. The employee handbook might, for example, be on the company intranet where all employees can access it.
Employee notice of the need for leave
The fun really begins when an employee first provides “notice” of the need for leave. Employees don’t have to say “FMLA” or “leave.” Employees should, however, provide enough information to make employers aware that they need leave.
Employees can provide notice in many ways — even a behavior change could be a clue. If, for example, an employee is behaving unusually, this might be enough notice to indicate that something is medically wrong, and the employee might need FMLA leave.
Eligibility/rights and responsibilities notice
Once employees give notice, employers have five business days to give them an eligibility/rights and responsibilities notice. Employers must determine the employee’s eligibility and indicate it on the form as well as include company-specific information such as the:
- Use of paid time off,
- Expected status reports while on leave, and
- Who to contact regarding continued health care coverage.
Along with the eligibility/rights and responsibilities notice, employers may (but don’t have to) include a certification form for the employee to have completed and returned (except when leave is strictly for bonding with a healthy child).
Certification
Once an employee receives a request for a certification, they have 15 days to return it completed and signed. If a certification is incomplete or insufficient, employers are to give it back to the employee with a written list of what the form is missing. The employee then has seven days to get it fixed.
If employers doubt the validity of a certification, they may request a second (or third) opinion.
Designation notice
Within five days of receiving a complete and sufficient certification, employers must determine whether or not the reason for the leave qualifies for FMLA protections. Then they must designate it as FMLA leave (or not) and give the employee a designation notice in writing.
Key to remember: When it comes to FMLA communication, employers may provide more than what the law requires, but not less. Additional information might be a copy of an FMLA or paid leave policy, documented conversations, and a checklist of the employee’s expected responsibilities regarding the leave.
