FMLA obligation

mrsbowden

Is there any part of the FMLA that the burden of issuing FML is upto the employer not the employee (even if the employee does not request it and the employer has reason to believe the employee is entitle to it, we are obligated to inform the employee of he/her rights and eligability)?

We have an employee who spoke to me this moring about her mother having a second stroke over the weekend and that she had to take yesterday off...she also added that her mother is alone today and that she was told by her doctor that she should not be left alone. I talked to this employees direct supervisor and told her we may want to investigate and see if this employee merits FMLA...this supervisor said that she didn't think it was her obligation to tell the employee about it if the employee didn't request it.

Can anyone give me any WRITEN reference for one argument or the other...this supervisor wants to see in the reg. were she is obligated to inform the employee of such rights...(I thought I read something about this and haven't been able to find it since) otherwise doesn't feel we have to mention FMLA to her....and YES we do have all employee Posting/notifications hanging in proper locations.

Any help would be greatly appreciated x:)

LindaS

There have been several cases within the past year addressing whose responsibility the designation of FMLA is...and the resounding answer from the courts has been that it is the employER's responsibility, not the employee. The courts have found that an employee need not invoke the FMLA by name in order to put an employer on notice of the need for leave but rather provide the employer with enough information that the situation may qualify as FMLA leave. One of these cases is Spangler v. Federal Home Loan Bank of Des Moines (8th Cir. 2002).

POPEYE

Section 825.208 (a) of the Federal Regs states
"In all circumstances, it is the employer's responsibility to designate leave, paid or unpaid, as FMLA-qualitying, and to give notice of the designation to the employee as provided in this section."

LindaS

Section 825.303 states "The employee need not expressly assert rights under the FMLA or even mention the FMLA, but may only state that leave is needed. The employer will be expected to obtain any additional required information through informal means."

Try the DOL website [url]www.dol.gov[/url] for additional information

mrsbowden

I may have jumped the gun a bit here....let me explain my mistake...This person only took one day off, she did not indicate that she needed any additional leave what so ever...she was just explaining to me her mothers situation and that she stays with her mother a lot and checks up on her...and that the doctor says her mother shouldn't be left alone...

it is my mistake, in that she never requested or asked for anytime off..she was purely just telling me of her mothers situation. So I suppose unless she requests sometime off or begins miss "too many days of work" then we need not approach her and ask her if she needs time off.

Thank you all for your great and informative responses...I enjoyed learning a little more about the FMLA Thanks!

LindaS

I don't think you made a mistake. The employee has informed you that her parent has a serious health condition and you have a responsibility to inform her of what her rights are regarding this situation. While I'm sure many forumites would agree that there is a significant number of employees who are "up to date" on the various labor laws, regulations, etc. there are many more who are not. Simply informing the employee that he/she has some rights to take time off to care for their family member isn't overstepping your boundaries, it's providing the employee with some useful information. The employee may not need the time off now but that doesn't mean that they won't. I would, and I have done this with my employees, inform the ee of the FMLA and let them know this may qualify. If they are interested, provide them the paperwork and have them complete it. The employee may never need to use it but I think doing things like this goes a long way regarding an employee's view of HR.

mrsbowden

LindaS,
I couldn't agree more...x:) I like your way of thinking, and I would love to use this approach..but as you know not all people see it this way x;-)

POPEYE

Well written LindaS. Ok, this may actually need to be in the "HOW TO" section, but how did you get the DOL address link in your post? I have tried to put a link in previously and failed. Remember, you are dealing with a technology challenged individual. Thanks.

LindaS

Popeye -

I just typed it in and it automatically underlined it (created the link). Maybe it's the way the computer is set up, don't know.

POPEYE

[font size="1" color="#FF0000"]LAST EDITED ON 01-20-04 AT 04:07PM (CST)[/font][br][br]Test, test, test

[url]www.dol.gov[/url]

Well what do you know!! I had been trying to copy and paste and everything else.

Thanks and eat more spinach!!!!!!!

LindaS

Well you learn something new every day, huh!!!

Brad Forrister

I think your supervisor is thinking about the designation of FMLA leave all wrong.

In addition to the fact that it's the employer's responsibility to designate FMLA, it's also usually in the employer's interest to do so. When the employer designates FMLA, the clock starts running on the employee's leave time. If the employer doesn't designate until the employee has missed, say, 15 days, the employer doesn't get to go back and count them as FMLA time.

Let's say your employee with the sick mother tells the supervisor about it, then over the next month takes off 15 days to deal with it. Then she wants to take another day off. The supervisor says, sorry, your PTO days are all used up. But the employee suddenly says, Yeah, but this is FMLA. Your supervisor's failure to let HR know about the situation so the earlier leave could be designated as FMLA from the outset has extended the potential FMLA leave by three weeks.

Brad Forrister
Director of Publishing
M. Lee Smith Publishers

Don D

Let me disagree with the direction this is headed. It is not the employer's obligation to have a chat with the employee about all or any of his or her rights UNLESS the event of ABSENCE comes up. An employer is not expected or required to sit vigilant and spring forward with a regurgitation of rights when employees conversationally mention their life situations. If the employee had said, "Geesh, I'm at my wit's end. Mother has had a stroke and her doctor mentioned that I need to be at the hospital with her and I'm going to have to be there Thursday and could have to split time with my sister's for a week or two thereafter", that's when I see the obligation to advise the ee of her FMLA rights. Then and only then would I consider that the ee has advised me of a need to be absent from work under what I consider to probably be FMLA qualifying.

But, I also agree that your supervisor is wrong in thinking that the ee must come forward and tell you "I think I want to take some FML". The ee need not specifically use those words. You are expected to know that FMLA might apply when the issue of leave or time off comes up and you have the information that you guys had in this case.

Just my thoughts. Hope this didn't offend anyone. x:-)