Administering FMLA leave can be made easier if you have a clear procedure that employees understand and can easily utilize when the need for leave arises. One critical component of this process is the need to notify employees of whether or not they are eligible for FMLA leave and what their responsibilities are while they’re away. This is where the Notice of Eligibility and Rights & Responsibilities comes into play.
FMLA Leave 101: Notice of Eligibility and Rights & Responsibilities
The employer has 5 business days from learning of need for leave to notify the employee of eligibility or ineligibility for FMLA leave. This can be done with the Notice of Eligibility and Rights & Responsibilities (WH-381) or with other means, so long as all information required is provided.
"This document is actually optional, but by using this document you make sure that you’re complying with all the things you’re supposed to provide in terms of information. So, I’d highly encourage you to use the DOL form." Jonathan O’Connell confirmed in a recent BLR webinar. He explained how to proceed either way:
If employee is not eligible:
- Provide notice of ineligibility (either through the DOL form or otherwise).
- Provide at least one reason.
- Indicate a date when the employee will become eligible, if applicable.
If the employee is eligible, notify the employee of:
- Eligibility status.
- Their obligations while on leave. This includes things like: medical certification, return-to-work policies, continuation of benefits, and the employer’s policy regarding the concurrent use of paid leave.
- The liability for employer-paid premiums under certain circumstances.
- Medical certification details. Provide the certification form with a list of the essential job functions for the medical provider to review. Be sure the employee understands why the essential job functions should be given to the medical provider. Remember that you must give the employee notice of the need for certification if you’re going to require certifications as part of the process.
- Key employee status. If an employee is considered a "key employee," then there may be a case that reinstating them in their role will cause an undue hardship. However, the threshold to meet this qualification is quite high and rarely applies. If it does, the regulations are clear that this must be decided on the front end, not at the point when they want to come back. If an employee does qualify, they need to understand this.
For more information on managing FMLA leave, order the webinar recording of "Managing Family and Medical Leave: Helpful Tips and Tools for HR Professionals." To register for a future webinar, visit http://catalog.blr.com/audio.
Attorney Jonathan E. O’Connell of Holland & Knight practices primarily in the area of labor and employment litigation. His experience includes representing management clients in matters involving claims of racial and sexual discrimination, wrongful discharge claims, federal and state wage and hour compliance, enforcement of non-competition, non-solicitation and confidentiality agreements, and collective bargaining agreements.