If leave won't begin until later, when does the FMLA process begin?
Short answer: Employers should start the Family and Medical Leave Act (FMLA) process when the employee puts them on notice of the need for leave. Sounds easy enough, but what does that look like in practice?
When FMLA leave is preplanned
Employees are required to give employers advance notice of the need for leave when it’s “foreseeable.” That doesn’t mean that employers should wait to start the FMLA process.
If, for example, Emma Employee tells her supervisor that she is pregnant and expecting a baby in five months, the employer still has only five business days from the day she told her supervisor to give Emma an eligibility/rights and responsibilities notice. This is true even if Emma isn’t having any pregnancy-related complications and doesn’t need leave right away.
Why employers shouldn’t wait
The eligibility/rights & responsibilities notice tells employees whether they meet the criteria to take FMLA leave, it’s a communication tool to let employees know if they’re eligible to even take leave. It doesn’t tell employees if their leave reason qualifies as FMLA leave. That comes later.
Before giving this notice, employers must determine whether an employee has worked at least 12 months and 1,250 hours before the date leave will begin, not when an employee gives notice of the need for leave. In addition, employers also must ensure an employee works at (or reports to) a location with at least 50 company employees within 75 miles as of the date the employee put them on notice of the need for leave.
For Emma Employee, if she’s not eligible for FMLA leave when she tells her supervisor she’s pregnant — say, for example, she’s only worked there seven months — her employer would need to figure out if she will be eligible when she later actually takes the leave. That leave could begin before the birth for prenatal visits or any time they are unable to work, which also qualifies as FMLA leave.
Beyond pregnancy, employees might need time off in the future, for upcoming surgery perhaps, and employers would respond the same way.
Designation notice, certification
Once employers have enough information to determine whether any absence qualifies for FMLA protections (often through a certification), they have five business days to give employees a designation notice.
Employers are not required to ask for a certification, but may do so for reasons such as serious health conditions. Therefore, if an employee has back surgery scheduled two months down the road, employers should review the certification, and give the employee a designation notice with that future date and the anticipated amount of FMLA leave planned, if available.
Key to remember: Employer FMLA obligations are triggered when an employee puts them on notice of the need for leave, and employers should not wait to start the process, including giving employees the required notices.