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Legal Clinic

Time to Review FMLA Policies

One company policy that seems to prompt frequent inquiry is an employer's rights and obligations under the Family and Medical Leave Act and so, this month, I have selected two of your questions on that subject.

Tuesday, January 2, 2007
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It's a new year and a good time to reflect on employment policies and practices. If you have not updated your employee handbook recently, it might be a good time to add that to your to-do list. One of the policies that seems to prompt frequent inquiry is an employer's rights and obligations under the Family and Medical Leave Act and so, this month, I have selected two of your questions on that subject.

Question: Regarding FMLA -- are employees eligible if they are requesting time off to care for a parent-in-law with a serious health condition?

The FMLA provides up to 12 weeks of unpaid leave for an employee to address family and medical issues. This includes the birth of a child, the placement of a child for adoption or foster care, caring for the employee's child, spouse, or parent with a serious health condition, or for the employee's own serious health condition. The term "parent" includes biological parent and an individual who stands in loco parentis to an employee when the employee was a child. However the federal regulations on the FMLA specify that a parent "in law" is not covered. See 29 C.F.R. § 825.113.

Question: Is it the responsibility of the employee to notify his supervisor or human resources that he needs to take FMLA? Or does human resources have to approach the employee?

It is the employee's obligation to provide notice to an employer if that employee plans to take FMLA leave, with one important caveat. The employer must ensure that the employee is aware of his/her rights and obligations under the FMLA. Thus, designating leave under the FMLA is an interactive process.

If the need for leave is foreseeable, such as an expected birth or planned medical treatment, an employee must provide at least 30 days notice before the FMLA leave is to begin. See 29 C.F.R. § 825.302(a).

If the need for leave arises unexpectedly, the employee is obligated to provide notice "as soon as practicable." Id. For unexpected leave, an employee should communicate notice to the employer within one or two working days. Generally, notice must be at least verbal, but in unforeseeable circumstances the employee can provide notice in person, by phone, telegraph, fax, other electronic means, or through a family member. See 29 C.F.R. § 825.303.

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It is important to note that the employee does not need to specify that he is requesting leave under the FMLA. The employee simply must provide enough information for an employer to be made aware that the employee needs FLMA leave. See 29 C.F.R. § 825.302(c). Once the employer is put on notice of the employee's situation, it is then the employer's duty to inquire as to the necessity and nature of the FMLA leave. Thus, while the initial inquiry must be made by the employee, the employer has an obligation to follow-up with the employee to better assess the situation.

If an employee provides no notice, the employer is not required to provide FMLA leave, even if the employer is aware of the situation. If the employee fails to give the appropriate 30 days notice for foreseeable leave, the employer can delay the start of FMLA leave until at least 30 days after the date when notice was provided. 29 C.F.R. § 825.304.

But in either case, the employer must be sure that the employee had actual notice of the FMLA notice requirements. It is the employer's obligation, through postings and handbooks, to ensure that every employee knows about the FMLA and the notice requirements. See 29 C.F.R. 825.304(c).

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