Human Resource Blog

Family Medical vs Personel Leave of Absence

An employee’s sister was killed by her husband. The senseless killing has left the employee so distraught that the employee has requested a “Pesonal Leave.” We don’t believe the employee knows she can request a Family Medical Leave, with authorization from her doctor (which she will probably get.) In the long run the employee would be better off on FMLA, because it would give her some flexibility in returning to work, and would guarantee her position if she returns with a certain length of time. Does her manager or someone in benefits have the right to tell the employee she would be better off taking FMLA and explain why?

Under new 2009 regulations, the employer has a legal obligation to inform this employee, in writing, of her right to unpaid, job-protected leave for up to 12 weeks under FMLA. It is not the employees duty to request FMLA; it is the employers duty to inform the worker that FMLA is available. The U.S. Department of Labor suggests that employers use the form WH - 381 for this. This must be done as soon as an employee takes an absence for a reason that could be covered under FMLA.

The employer must also furnish the employee with  the proper certification papers for FMLA (WH-380.) Generally, the employee has 14 days to file the papers with the employer. Once that is done, the employer usually must respond in writing within 5 days, to inform the employee whether or not the FMLA leave has been granted using a form such as WH-382.

The employer in this case should certainly inform the employee of the availability of FMLA. The employer not only has a moral obligation to do so, they have a legal obligation to do so.

Read more about FMLA at: http://www.dol.gov/esa/whd/fmla/  All of the forms mentioned are also available on that site.