Complying With the Family and Medical Leave Act

How to navigate the maze of paperwork and legalities associated with granting an employee leave under the FMLA
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Q: What are the paperwork and/or certification requirements under the Family and Medical Leave Act?

A: There are certain obligations that both employees and employers must satisfy in order to comply with the Family and Medical Leave Act (FMLA). This article doesn't discuss all these obligations. Instead, it addresses certain paperwork and certification requirements for employers after an employee has requested leave under the FMLA.

With respect to paperwork, one of the most important things entrepreneurs must do is provide notice to their employees. Specifically, once an employee has given notice of his or her need for leave, you must provide that employee with notice detailing the specific expectations and obligations of the employee, along with any consequences of an employee's failure to meet these obligations. This notice is required, regardless of your written policies. However, if your policies so provide, the notice must also indicate:

  • Whether the leave will be counted against the employee's annual FMLA leave entitlement
  • Whether you require the employee to provide medical certification and the consequences of failing to do so
  • Whether the employee can substitute paid leave and/or whether you, as the employer, require this substitution
  • Whether the employee is required to maintain health insurance premiums
  • Whether the employee is required to present a fitness-for-duty certificate upon return to work
  • The status of the employee as a "key employee" and the potential for not being restored to work after leave
  • The employee's right to restoration
  • The employee's potential liability for your share of the health premiums if the employee does not return to work

This notice must be given to the employee at least once in each six-month period that the employee has given notice for FMLA leave.

You should respond to an employee's request for FMLA leave within two business days of the request or, if that is not feasible, within a reasonable time. Failing to provide a timely response to an employee's request may prevent you from later asserting that an employee is ineligible for FMLA leave.

Regarding certification, if an employee requests FMLA leave for a serious health condition of himself/herself, a spouse, a son, a daughter or a parent, you may require that the request for leave be supported by certification, provided in a timely manner, from the health-care provider of the individual with the condition. If you require such certification, the employee must be given at least 15 days to obtain it. Once you receive the certification (even if it is before the 15 days have lapsed), you can make a determination regarding the employee's request for leave.

If the employee fails to provide the required certification within the time allowed or within a reasonable time under the circumstances, the leave may be delayed until the certification is provided. Moreover, if the certification is incomplete, the employee must be so advised and given a reasonable amount of time to correct any deficiency.

You must give notice of a requirement for medical certification each time a certification is required. This request must be in writing and must state the consequences of failing to submit the certification. If this information is not included in your company's handbook or policy manual, you must provide a written statement directly to the employee.

Keep in mind, you may not request any additional information from the employee's health-care provider. However, with the employee's permission, your health-care provider may contact the employee's provider for clarification and authentication of the certification only.

As stated above, this article doesn't address all the paperwork and certification requirements under the FMLA. Additional information, including helpful guides, forms and fact sheets pertaining to the FMLA, can be found on the Department of Labor's Web siteI encourage you to review this information. To learn more, read the act itself (29 U.S.C. § 2601, et seq.) or the regulations pertaining to the act (29 C.F.R. § 825, et seq.). And speak to your local counsel for guidance when specific issues arise.

Leigh Ann Ciccarelli contributed to this article.

Note: The information in this column is provided by the author, not All answers are general in nature, not legal advice and not warranted or guaranteed. Readers are cautioned not to rely on this information. Because laws change over time and in different jurisdictions, it is imperative that you consult an attorney in your area regarding legal matters and an accountant regarding tax matters.

Larry Rosenfeld is co-chair of the national labor and employment practice of the law firm Greenberg Traurig LLP. A frequent writer and lecturer on employment law topics, Rosenfeld is experienced in the areas of federal laws pertaining to employment issues, EEOC, ADA, termination matters, employment liability and the Fair Labor Standards Act.

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