February 2003

Providing Notice When an Employee Uses FMLA

By Steve Norman, JD

The federal Family and Medical Leave Act (FMLA) provides employees up to 12 weeks of unpaid leave in a 12-month period for certain medical conditions. The employer must maintain an employee’s health benefits during the leave and must restore the employee to the same or a similar position upon return from leave. TheFLMA applies to employers with 50 or more employees within a 75-mile radius.

Until last year, if an employee took a leave of absence that qualified under the FMLA and the employer did not provide notice to the employee that the leave was designated as FMLA, the time off could not be considered FMLA leave and the employer would have to provide additional leave later if the employee needed it.

In the U.S. Supreme Court case of Ragsdale v. Wolverine World Wide, Inc. [No. 00-6029 (U.S. Mar. 19, 2002)], an employee requested and was given 30 weeks off to undergo cancer treatment. The employer failed to notify the employee that it had designated 12 weeks of her time off as FMLA. When the employee was unable to return at the end of the 30 weeks, she requested additional time off. The employer refused and terminated her employment. The employee sued, arguing that, according to FMLA regulations, because the employer failed to notify her that her leave had been designated as FMLA, she still had 12 weeks of leave available. The Supreme Court disagreed and held that while an employer is required to give notice when an employee’s leave qualifies as FMLA, it is not required to give additional FMLA leave if it fails to provide notice.

What Employers Should Do

Ragsdale does not eliminate an employer’s obligation to provide notice to employees that their leave qualifies under the FMLA. Even if that obligation were eliminated, providing notice to the employee is still recommended, in order to clarify expectations and avoid confusion. If an employee requests time off for their own medical condition or that of a spouse, child, or parent, HRCentral (www.hrcentral.com) recommends employers follow these steps:

• If the leave is expected to last more than three days, the employee should fill out a leave of absence request form and provide a doctor’s note or complete a certification of health care provider form. Confirm when the employee expects to return.
• Determine if the company is subject to FMLA. Some states, such as Oregon, Washington, and California, have state laws similar to FMLA that apply to employers with fewer than 50 employees.
• Determine if the employee is eligible for leave under the statute. For FMLA, the employee must have been employed with the company for at least one year and have worked at least 1,250 hours within the last 12 months.
• If the employee qualifies for leave, the employer must send notice that the leave is being designated as FMLA as soon as possible. The notice should explain the leave provisions, such as benefits continuation and job restoration.
• Request that if the employee needs additional leave or decides not to return from leave, the employee should notify the employer on or before the date she is scheduled to return from leave.
• Track the amount of FMLA the employee uses, to ensure that future leaves are properly designated as FMLA.
• Keep all documentation related to the leave of absence in the employee’s confidential medical file. q

Adapted with permission from HRCentral News (www.hrcentral.com).

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