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Ask the Attorney: Answers to Your FMLA Questions

Stay informed about potential employment law updates that can impact labor law poster changes for your business.

The expert legal team from Poster Guard® Compliance Protection hosted a webinar, “FMLA — Common Scenarios & Posting Obligations” on September 22, 2016. The one-hour presentation covered a simplified overview of the federal requirements of the Family and Medical Leave Act (FMLA). Since the webinar first aired, Ashley Kaplan, Esq., has handled numerous questions from participants.

Q: Is there a law that covers time off if I work for a company that has fewer than 50 employees?

A: States are permitted to enact their own laws and regulations to provide even greater protection for their workers than are provided under federal law. Many states, cities and local governments have enacted laws that give employees greater leave rights than provided under the FMLA. State and local laws may differ from the federal FMLA laws.

They may, for example:

  • Apply to smaller employers
  • Have less-stringent requirements for employee eligibility
  • Provide longer leave periods
  • Expand the definition of serious health condition
  • Apply to individuals other than immediate family members as defined by the FMLA
  • Require paid leave instead of unpaid leave
  • Provide leave for circumstances beyond the scope of the FMLA (such as parental leave for school activities, leave for organ donations, etc.)

States are also enacting paid sick leave laws that require employers to provide employees with at least three paid sick days each year. The Americans with Disabilities Act (ADA) and state workers’ compensation laws also apply to smaller employers.

Q: How long does an employee have from date of termination to file a claim for wrongful termination based on the FMLA guidelines?

A: The statute of limitations for the FMLA is two years. Lawsuits must be filed within two years after the last action that the employee believes was in violation of the FMLA, or three years if the violation was willful. See §825.400. “The employee has the choice of: (1) filing, or having another person file on his or her behalf, a complaint with the Secretary of Labor, or (2) filing a private lawsuit pursuant to section 107 of FMLA. If the employee files a private lawsuit, it must be filed within two years after the last action which the employee contends was in violation of the Act, or three years if the violation was willful.”

Q: Are employees responsible for paying their portion of health insurance premiums that would normally be deducted from their paycheck?

A: You can require employees to send in their contribution during leave. If they don’t pay, the safest practice is to go ahead and pay their share but remind them of the outstanding obligation in writing. When they come back to work, you can deduct what they should have paid for their portion of premium from their pay. The law allows for more aggressive approaches, but you should consult with your attorney before terminating someone for missing a payment.

Q: Can a person be terminated if they do not return after the 12 weeks?

A: Even if an employee’s leave is no longer covered by the FMLA, other protections may apply, including those created by the Americans with Disabilities Act (ADA) and state leave laws. The ADA requires that a covered employer make “reasonable accommodations” to the known physical or mental limitations of an otherwise qualified individual with a disability, unless the employer can demonstrate that the accommodation would pose an undue hardship on the employer’s business. Under the ADA, it is discriminatory for an employer to deny a request for a reasonable accommodation to a qualified employee with a disability. It is well settled that extended unpaid leave can be a reasonable accommodation under the ADA. Otherwise, if the employee’s absence is not legally protected, you can terminate an employee following FMLA leave, provided there is a legitimate, nondiscriminatory reason for termination. However, as with any high-risk termination, it is wise to seek legal advice before terminating someone who has recently requested, taken or returned from job-protected FMLA leave.

Q: If the employer becomes aware of a potential need for FMLA, do we need to provide the employee with the eligibility notice and rights and responsibilities form?

A: Yes. Employers must give an employee the Notice of Eligibility and Rights and Responsibilities within five days of the employee’s request for leave or after you’ve discovered that an employee’s leave might be for an FMLA-qualifying reason. See DOL Employer Notification Requirements Fact Sheet Under the FMLA

Q: What is the difference between the eligibility notice and the Notice of Eligibility and Rights & Responsibilities?

A: They are the same. Employers must provide an Eligibility Notice and a Right and Responsibilities Notice. The DOL combined these two notices when it released sample forms and the DOL calls it the Notice of Eligibility and Right & Responsibilities. The first part of the form (eligibility) informs an employee if they are eligible for FMLA leave. The second part of the form provides a variety of information about FMLA leave, including whether the employer will require a medical certification and/or fitness for duty certification, payment of healthcare premiums, using paid leave and more.

Q: What if an employee doesn’t want to give you consent to contact the doctor after submitting a medical certification?

A: Generally, you should not contact an employee’s doctor unless the medical certification is incomplete or insufficient. A medical certification is “incomplete” if an entry on the certification form is left blank. A certification is “insufficient” if the information provided is vague, ambiguous, or nonresponsive. You should notify employees in writing as soon as possible after receiving a certification that you believe is incomplete or insufficient. Employees must be given seven (7) calendar days (unless the circumstances require additional time) to cure deficiencies if their certification is incomplete or insufficient. You must advise the employee of the consequences of failing to provide adequate certification, including the denial of FMLA leave until the required certification is provided. If you receive a certification that is incomplete or insufficient, you should not immediately contact an employee’s health care provider. Instead, you must give the employee the opportunity to cure the deficiencies, as discussed above.

Once you have received a complete and sufficient certification from an employee, you may request additional information from an employee’s health care provider, but only under two circumstances:

  1. Authentication. You may ask a health care provider to “authenticate” the certification by requesting verification that the information contained on the certification form was completed and/or authorized by the health care provider who signed the document.
  2. Clarification. If you can’t read the handwriting on a certification or you don’t understand the meaning of a response, you may request a “clarification” from the healthcare provider. However, you cannot request information beyond that required by the certification form.

See DOL Fact Sheet on Certifications for more information.