FMLA Question(s)

I haven't seen this question answered in anything I've read on FMLA-- If the employee isn't responsible for requesting FMLA, why does the DOL's model form WH-381 say, "Employer Response to Employee Request for Family or Medical Leave?"

Comments

  • 17 Comments sorted by Votes Date Added
  • >I haven't seen this question answered in
    >anything I've read on FMLA-- If the employee
    >isn't responsible for requesting FMLA, why does
    >the DOL's model form WH-381 say, "Employer
    >Response to Employee Request for Family or
    >Medical Leave?"


    Great question!!! IMHO (for what that's worth)
    The response would be sent after certification had been received and therefore a request HAS been made.

    However your question just brings to light all of the mumble jumble of this ACT and how there are so many interpretations of the "Broad Intent" of it.
  • >The response would be sent after certification
    >had been received and therefore a request HAS
    >been made.

    But but but I thought the law said the EMPLOYER was responsible for notifying the employee that the leave was FMLA qualifying leave and that the EMPLOYER was responsible for designating the leave as FMLA qualifying-- sooo, if that's the case, the employee isn't requesting anything.

    Which leads me to another conumdrum-- what happens when the employee doesn't return the medical certification? The law says the EMPLOYER has to be consistent-- if I require medical cert on one, I must require medical certs on all-- but my employee doesn't want to use his/her FMLA right now (as if they have a choice in the matter), so he/she doesn't return the medical cert form. Now what do I do?


  • FMLA allows you to give them 15 days to return it. If they don't you may either delay or deny their request. And you are right, you have to be consistent with this.
  • The ee is responsible for requesting FMLA. They just don't have to say, "I want FMLA." They can tell you they are in the hospital or they need time off to adopt a child. It's the employer job to figure out whether their info constitutes a request.
  • >The ee is responsible for requesting FMLA. They
    >just don't have to say, "I want FMLA." They can
    >tell you they are in the hospital or they need
    >time off to adopt a child. It's the employer
    >job to figure out whether their info constitutes
    >a request.


    Ahh the wonders of federal employment laws! Such clarity! My employee tells me he's in the hospital. I give him the med cert form. I give him 15 days to return it. He never returns it for whatever reason. The employee has effectively made the decision for me, his employer, that the leave won't be FMLA. Or so it seems to me... what am I missing?
  • A VERY short answer is that when the Act became law in '93 it was constructed to apply to employees needing to apply for FMLA. Since '93, with all the rulings and decisions involving FMLA, employers are now permitted to designate the time off as FMLA. The verbiage on all the DOL forms doesn't necessary keep up with these changes.
  • >with all the rulings and decisions involving
    >FMLA, employers are now permitted to designate
    >the time off as FMLA.

    Ahah! I can designate the time?! Excellent! My policies state I (well, the employer) will consider any paid leave for purposes that would otherwise qualify as FMLA leave to count toward the 12 week per 12 month period FMLA allotment.

    I give/send/mail the med cert form to the employee. He doesn't respond.

    Where am I? What recourse is left to me to obtain the required information to make the final designation on FMLA?
  • You can apply their absences towards your attendence policy. Make sure you haven't allowed others to slide past the 15 days, though. With our attendence policy it is in their best interest to get FMLA and if they don't they dig themselves a hole.


  • FML is supposed to protect the eligible EEs job during those designated times. "Saving" FML indicates the EE in question is not worried about losing their job or has vacation and sick time to cover the absence(s) in question. If your attendance policies are not placing the job in jeopardy, which would trigger the EE to want FML to apply, then I understand why the EE wants to save the FML.

    Here is where requiring the employer to designate the leave works in the company's favor. The company gets to start the clock running. If the company elects to do so (and applies this to all EEs), it can run the FML clock concurrent with the use of sick and vacation leave. That allows you to limit the time you would not have a trained, contributing EE away from the job.

    I apologize if this is all redundant to your question or knowledge base, it just seemed to me we should touch on this.
  • >FML is supposed to protect the eligible EEs job during those designated times. "Saving" FML indicates the EE in question is not worried about losing their job or has vacation and sick time to cover the absence(s) in question.<

    Our policy now states clearly that any paid leave for reasons that would constitute FMLA leave will be designated as FMLA leave and run concurrent with the paid leave. Our policy doesn't leave that 'decision' up to the employee. At least it doesn't now, but I'm beginning to believe our policy needs changing since there's really no way to enforce it.

    Once upon a time in the not so distant past, our policy on FMLA stated that the employee could apply for unpaid FMLA leave after having exhausted all available paid leave. This truly put the employee in the driver seat. It worked beautifully for us for 11 years.

    The one drawback was that the employee could be away from work for up to 12 weeks longer provided he/she could afford to be off work without receiving any compensation. Few could. Few can.

    Alas, TPTB felt this was not in keeping with good management practice and we are not running paid leave and FMLA concurrently. Well, that's not entirely true. We're attempting to run it concurrently.

    Something is mightily wrong with our procedures though-- we can't seem to get the employees to cooperate with sending back those med certs. Not to mention getting supervisors to cooperate with notifying HR that an employee may be out on a FMLA qualifying leave.

    I'm frustrated. I realize that most if not all who read this forum have been running FMLA leave concurrent with paid leave and all this hassle and change happened with you 10 years ago. You've all worked out your procedures and processes and my questions probably seem odd coming 10 years after the law went into effect.

    I used to wonder at the surveys that named administering FMLA as the most burdensome employment process. Wow! No wonder! I've blessedly lived in nirvana and didn't even realize it. Our past policy was employee driven and it worked well for us.



  • OK, marc and SMace I have a question. What if the ee has a heart attack and has accumulated 600(+) hours sick leave and doesn't "ask", "apply" "return the medical certification" or otherwise want to use FML. What do you do?
  • If I had a policy that stated FMLA will run concurrent with sick leave, I would give them the paperwork and tell them to get it filled out. If they refused I think you can do this:

    1. Document on your paperwork that FMLA forms were given, they refused to fill them out and you are classifying the time as FMLA based on the info you have.

    If I didn't have a policy that stated the info above, I would start one immediately.
  • Ditto to SMace. I designate the leave as contingent upon FML and run the leave banks concurrent. With or without the medical certification, it is still the ERs job to officially designate the leave. If the EE wants to fight the decision, he/she can turn in the paperwork.
  • Along the same line, if an employee (male) takes off 4 days (as vacation time) after the birth of a baby, doesn't that have to be put under FMLA?
  • >Along the same line, if an employee (male) takes off 4 days (as vacation time) after the birth of a baby, doesn't that have to be put under FMLA? <

    Could be either parental leave or medical leave.


  • Bottom line is that the ER designates the leave as FML. Usually we like to have the paperwork from the service provider to back up our decision, but if the certifications are not forthcoming, you can make a provisional call as FML leave, contingent upon receiving clarifying paperwork. That way you are protected. If the paperwork does not come back - you have started the clock and engaged in one of the few defensive moves allowed in the FMLA. If the paperwork comes back saying it is not FML, then you can reset the clock.

    Sidebar: I would treat the vacation leave after the birth of a child as FML.
  • Exactly. We designate and notify the employee that the leave will be counted as FMLA immediately. Usually the day we are notified. We send them the forms for them to complete at the same time. Our letter reads that we are designating the leave as FMLA based upon our conversation (or note from ee, or info from supervisor, or whatever fits that case) but that we reserve the right to deny it as FMLA if we do not receive the required paperwork back in a timely manner.
Sign In or Register to comment.