Back to Basics: Family and Medical Leaves

BY STEVE PELTIN

In the first of a four-part series on the Family and Medical Leave Act
(FMLA) and related Washington law requirements, we addressed the
fundamentals of the FMLA, including coverage, permitted reasons for
leave, and significant definitions. In this installment, we will
cover the process for requesting leave, granting or denying leave,
employee rights during the leave, and reinstatement rights after the
leave. More detailed information is available on our website.

How does an employee request FMLA leave?

If leave is foreseeable, the employee must provide at least thirty
days notice before the leave is scheduled to begin, unless it is
impracticable. If impracticable, the employee must give notice as
soon as practicable.

The notice must make the employer aware that the employee needs
FMLA-qualifying leave, and the anticipated timing and duration of the
leave. The employee ordinarily need not use any magic words or even
mention "FMLA." The employer is required to determine whether the
employee qualifies.

The employer may require an employee to comply with its usual and
customary notice and procedural requirements for requesting leave,
absent unusual circumstances. For example, the employer may require
notice in a certain format or directed to a specific individual.

Before taking foreseeable leave for medical treatment, the employee
must make a reasonable effort to schedule the treatment so as not to
unduly disrupt the employer's operations.

When the need for leave is unforeseeable, the employee must notify the
employer as soon as practicable. If the employee is unable to give
notice in person, notice may be given by the employee's
"spokesperson."

How does the employee show medical need for leave?

Generally, if an employee requests FMLA leave for medical reasons, the
employer may require a certification from the health care provider of
the employee or relevant family member. Deadlines for notifying the
employee of certification requirements and for the employee response
are found here.

Certification should be "complete and sufficient." If an employee
omits information or provides "vague, ambiguous, or non-responsive"
answers, the employer should notify the employee in writing and
explain what additional information is necessary. If the employee
does not rectify the deficiencies, leave may be denied. The content
of the medical certification is described here.

If the employer has reason to doubt the certification, it may, at its
own expense, require a second opinion from an independent health care
provider. Disagreements between opinions may be resolved by a third
independent opinion.

An employer may request recertification when reasonable, but generally
no more often than every thirty days. An employer may request
certification if the employee seeks an extension of leave,
circumstances have changed significantly, or new information casts
doubt on the stated reason for leave or on the certification.

How does the employer respond to the request for leave?

The employer ordinarily must notify the employee within five business
days of whether he or she is eligible for FMLA leave. The employer
also should provide a notice to the employee that explains rights and
responsibilities under FMLA. The contents of the notice are found
here.

Assuming that the employee is eligible for leave, the employer next
must determine whether he or she qualifies for leave. Here the
employer examines whether the employee has a serious health condition
or fits under any of the other reasons for FMLA leave.

If the leave request is denied, the employer must notify the employee.
If the request is granted, the employer must designate leave as
FMLA-qualifying and notify the employee, specifying the information
found here.

The employer must designate leave as FMLA-qualifying based solely upon
information provided by the employee (or his or her spokesperson). If
there is insufficient information to make a designation, the employer
should inquire further.

If an employer fails to timely or properly designate leave as
FMLA-qualifying, it may do so retroactively with appropriate notice,
provided the failure does not harm or injure the employee. The
employer and employee also can agree to retroactively designate leave.

What happens during the leave?

An employee generally is entitled to receive health insurance benefits
while on leave. An employee who chooses to maintain health coverage
is still responsible for any employee-paid premiums. If the employee
fails to return to work after the leave, the employer may collect from
the employee the premiums paid on his or her behalf during the leave.

An employer may require an employee on FMLA leave to periodically
report his or her status and intent to return to work. If the
employee needs to take additional leave, he or she should give the
employer at least two days notice when practicable.

What happens after the leave?

The employer may require certification from a health care provider
stating that the employee is healthy enough to return to work or
perform specific tasks, so long as the requirement policy is uniformly
applied. An employee who remains unable to work after exhausting FMLA
leave has no right to restoration, and failure to provide a
fitness-for-duty certification disqualifies an employee from
reinstatement. If leave is intermittent, the employer may only
request a certification of fitness to return to duty once every thirty
days and only if there are "reasonable safety concerns" regarding the
employee's ability to perform job duties.

If the employee is medically able to work, he or she is entitled to
return to the position held before the leave or to one with similar
requirements, pay, and benefits. However, an employee has no greater
right to reinstatement than if he or she had been continuously
employed. If the employee would have been terminated if still at
work, the employer has no duty to reinstate. In fact, the employer
may terminate an employee during FMLA leave so long as the reason for
termination is unrelated. An employer also may deny reinstatement to
certain highly-compensated "key" employees to prevent "substantial and
grievous economic injury" to employer operations.

For more information on these matters, please call our office at 305 548 5020.

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