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An employee notified they needed to leave early due to a very ill immediate family member. Later that day they notified they would be out at least a few days. Two days later they notified they would be out at least a few more days and indicated they would contact our FML/STD contractor. Two more days later they notified their return date was uncertain and not yet contacted the FML/STD but indicated they would do so. The next day the employee asked if they could use personal and vacation days in lieu instead of FML. We advised the need to contact FLM/STD contractor to file an FML claim. Beyond our internal company website and posters in cafeteria, we have yet to inform the employee of their rights under FMLA in writing or otherwise. Our questions are; 1) at which point in this scenario were we obligated by law to notify the employee of their FMLA rights? (5 day rule), 2) if we broke the 5 day rule of law, what penalties might we be subject to? 3) if we broke the 5 day rule of law to notify employee of their rights under FMLA, does the employee have the right and are we obligated to approve FML without contacting the FML/STD contractor. The employee filed for FML with our contractor 2 weeks after their 1st day out. Thank you in advance.

Both employer and employee have obligations under the federal Family & Medical Leave Act (FMLA).

An FMLA eligibility notice must be provided within five business days of the initial request for leave or when the employer acquires knowledge that an employee leave may be for an FMLA-qualifying reason. The eligibility notice can be provided orally or in writing. One could argue that you’re obligation to inform the employee of his eligibility for FMLA leave was initiated once the employee informed you that he needed time off to care for an ill immediate family member. However, the notice requirement may have been satisfied depending upon what information was communicated to the employee when the need to contact the FML contractor was mentioned.

The employer is also responsible for designating leave as FMLA-qualifying and giving notice of the designation to the employee. This notice must be provided in writing within five business days of having enough information to determine whether the leave is FMLA-qualifying. Again, your designation responsibilities started when the employee informed you of a FMLA-qualifying event, assuming you had enough information to determine the situation was covered by the FMLA.

Failure to follow notice requirements may be considered interference with an employee’s FMLA rights. An employer may be liable for compensation and benefits lost by reason of the violation or other appropriate equitable relief.

Employees have responsibilities under the FMLA as well.

Employees must provide 30 days advance notice of the need to take FMLA leave when the need is foreseeable. When such notice is not possible, the employee must provide notice as soon as practicable and generally must comply with an employer’s normal call-in procedures. If an employee fails to follow an employer’s call-in procedures and there are no extenuating circumstances to justify the failure to comply with company policy, FMLA protected leave may be delayed or denied.

Additionally, employees are responsible for ensuring appropriate certifications are thoroughly completed and submitted in a timely manner. If an employee fails to timely submit a properly requested medical certification, absent sufficient explanation of the delay, FMLA protection for the leave may be delayed or denied. If the employee never provides a medical certification, then the leave is not FMLA leave.

In this case, even though the employee didn’t call the FML contractor in a timely manner, he should still be awarded his leave entitlement, especially considering you didn’t provide the proper notices. The normal process through your FML contractor should be followed.

Employers often assume that since they use a third party vendor for FMLA compliance, they’re no longer at risk for violations. However, the employer still bears risk for potential violations. Thus, in the future, if you’re made aware of an FMLA-qualifying event it’s best to inform the FML contractor immediately, even if you told the employee to contact them directly. Doing so will ensure the employee is provided with the appropriate notices within the necessary timeframes.

Remember, an employee doesn’t need to specifically request to exercise his rights under the FMLA. The employee is simply required to provide enough information for the employer to know that the leave may be covered under the FMLA. HTH!

This entry was posted on Sunday, July 12th, 2015 at 8:56 pm and is filed under
Labor Laws.
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