5 Things You Might Not Know About FMLA

The federal Family and Medical Leave Act (FMLA) has many details, and some of them are easy to overlook. Some of these possibly overlooked details include the following:

  1. If the information in the eligibility/rights & responsibilities notice or designation notice changes, you must notify employees of the changes [§§825.300(b)(3) and (d)(5)]
    • If an employee's eligibility status has changed (e.g., if the employee has not met the hours-of-service requirement in the 12 months before the beginning of leave for a subsequent, different qualifying reason, or the size of the workforce at the worksite has dropped below 50 employees), you must notify the employee of the change in eligibility status within five business days, absent extenuating circumstances.
    • If the information in the designation notice changes (e.g., the employee exhausts the FMLA leave entitlement), you must provide, within five business days of receipt of the employee's first notice of need for leave subsequent to any change, written notice of the change.
    • You may use another eligibility/rights & responsibilities notice or designation notice for this, but are not required to.
  2. Private residences are not worksites for purposes of the eligibility criteria of working at a site with at least 50 company employees within 75 miles [825.111(a)(2)]
    • Rather, their worksite is the office to which they report and from which assignments are made.
  3. The FMLA poster needs to be seen by applicants as well as employers [825.300]
    • For online applicants, place a prominent notice on the website where the job postings are listed stating that “Applicants have rights under Federal Employment Laws” and link to the Family and Medical Leave Act (FMLA) Poster (as well as the EEO and EPPA poster)
  4. You may not request a second opinion for recertifications [825.308(f)]
    • You may request a second opinion only for initial certifications. This is pretty self-explanatory.
  5. You should not automatically request a new, annual certification at the start of a new leave year – wait for the employee to put you on notice of the need for leave [825.305(b)]
    • You should request, at the time the employee gives notice of the need for leave or within five business days, that an employee furnish certification. In the case of unforeseen leave, within five business days after the leave begins.