FMLA: Notice Requirements

FMLA leave requests fall into two categories: foreseeable and unforeseeable. When the leave is foreseeable, employees are required to provide at least 30 days’ notice or notify the employer as soon as practicable if the leave is foreseeable but will begin within 30 days. Examples of foreseeable leave: childbirth and nonemergency surgery for the employee or an immediate family member.

When leave is unforeseeable, employees must follow their employers’ usual and customary call-in procedures for reporting an absence, unless unusual circumstances prevent them from doing so. Some flexibility is necessary here. Obviously, an employee who is in a coma following a car accident would be unable to notify you, and family members may or may not be available to inform you. (Technically, the family is under no legal obligation to do so.)

Notification can be verbal or written. Employees don’t have to use the term “FMLA leave.” Simply, any indication that the employee will be off work for a reason covered by the FMLA is sufficient notice. You must train your supervisors and any other appropriate personnel to recognize FMLA requests. After receiving the request, you should document it and formulate a response.

In situations where an employee has been absent with no communication for two days and he or she is eligible for FMLA leave, you should send out an FMLA notification stating that you’re provisionally approving FMLA leave if the employee:

• Can show the need for leave was valid under the FMLA or your company’s FMLA policy.
• Can produce medical certification from a health care provider justifying the time off.

The letter should also explain the consequences of failing to provide this information.

Employers must ask for medical certification from a health care provider. To maintain employee privacy, requests for information must come from a health care provider, an HR professional, a leave administrator or a management official. In no case may the employee’s direct supervisor make the request. Further, employers may not ask health care providers for additional information beyond that required by the certification form.

Employers may use the DOL’s optional certification form: WH-380-E: FMLA Certification of Health Care Provider for Employee’s Serious Health Condition or WH-380-F: FMLA Certification of Health Care Provider for Family Member’s Serious Health Condition. Health care providers are allowed, but not required, to provide a diagnosis of the patient’s health condition as part of the certification.

If you find the medical certification insufficient, you must specify in writing what information is lacking, and give the employee seven calendar days to correct the deficiency.

Caution: Be careful to observe all provisions of HIPAA when requesting and storing employee health records. 

Once you have medical certification covering the FMLA leave, you should also obtain a projected date of return from the health care provider. In cases of childbirth or adoption, the employee is entitled to take up to 12 weeks regardless of the health condition. You should monitor the situation and get updates as the projected date of return to work approaches.

Employers are required to take certain steps to inform their employees about their FMLA rights:

• You must conspicuously post the DOL’s new FMLA poster and general notice, detailing employee rights and employer responsibilities, in your workplace.
• You must distribute the general notice to all employees in your company handbook (if you have one) or provide a copy to each new employee upon hire. (Electronic distribution is permitted.) You should have your own company FMLA policy outlining leave usage and procedures.
• When an employee requests FMLA leave or you become aware of the person’s need for leave, you must notify the employee of his or her eligibility for FMLA leave within five business days, absent extenuating circumstances. If the employee is ineligible, the notice must state at least one reason for the person’s ineligibility.
• If the employee requires further FMLA leave within the same eligibility period and his or her status has not changed, no additional eligibility notice is required.

Note: An employer may be liable for any harm that an employee suffers because the employer did not follow the FMLA notice requirements. In 2008, the DOL eliminated a prior rule that granted additional leave as a penalty.