I am having a hard time understanding deadlines for staff getting FMLA paperwork turned back into the employer. I know that we have 5 days to give the FMLA paperwork to an employee once a statement has been made that may entitle an employee to receive FMLA benefits but what time frame do they have to return the paperwork to the employer?
Example: I gave a staff the FMLA paperwork because of her going out on leave for maternity. How long does she have to return the paperwork to me after the doctor has put her out on leave (she had her baby on 4/13/10)?
This is a valid question. Under the current FMLA regulations, the employer can designate when the FMLA paperwork must be returned. However, if the employer is requesting certification of a serious health condition under FMLA, the employer must allow at least 15 calendar days for the employee to return the paperwork. This gives the doctor time to complete the paperwork. The US Department of Labor suggests but does not require that the employer use form WH381, below.
To summarize notification requirements: You have 5 business days after the first absence, to notify the employee of his or her rights under FMLA, ideally using WH 381. You can specify on that form when it must be returned, but generally must allow at least 15 calendar days. After the form is returned, the employer has 5 business days to respond in writing, letting the employee know that FMLA has or has not been granted.
In this case, you should have provided Form WH 381 to the employee within 5 days after the first time she missed any portion of a work day for pregnancy-related reasons, including prenatal appointments. There is no need for you to wait until the employee has actually given birth before informing her of her rights under FMLA. New mothers understandably have other things on their mind. (Sometimes employees believe that they will be granted more time off if they delay filling out the FMLA paperwork. This is incorrect, of course.)
There is no law that you must require certification before granting FMLA. Pregnancy is always a serious health condition under FMLA. Unless you have reason to believe that this employee was never pregnant, you should grant FMLA retroactive to the first day of absence. You can legally do this without the employee filling out the paperwork. Use WH 382 to inform the employee that her time off is FMLA and when she must return to work.
In the future, use form WH 381 and fill in the date the completed certification must be returned. An employee who does not return the form by that date can be terminated for excessive absenteeism.
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