The start of a new year is an excellent time to reflect upon your past practices and how you might improve in the coming year. Of course, there are many opportunities for your HR group; e.g., your employee handbook, drafting job descriptions, conducting exemption reviews for compliance with wage and hour laws, reviewing employee versus independent contractor classifications. For this brief moment in time, we wanted to focus on one discrete, but important, task – your FMLA paperwork.

If your business has 50 or more employees, your business is covered by the Family and Medical Leave Act (“FMLA”). At the bare minimum, covered employers need the FMLA poster hanging in the break rooms. You do not need to pay for the glossy laminated poster; you can simply download the poster from the DOL’s website. The DOL publishes a Spanish version as well which you should also use if you have a Spanish-speaking employee population.

As you probably know, the FMLA provides unpaid leave for a variety of circumstances: (1) the birth of the employee’s child or placement of a child for adoption or foster care; (2) for the employee to bond with the employee’s child within the first year of the child’s birth or placement; (3) to care for the employee’s spouse, child or parent who has a qualifying serious health condition; (4) for the employee’s own serious health condition which makes the employee unable to perform the employee’s job; (5) for qualifying exigencies related to the foreign deployment of a military member who is the employee’s spouse, child, or parent; or (6) to care for a covered servicemember with a serious illness or injury who is the employee’s spouse, child, parent or next of kin. There are a myriad of definitions and rules applicable to each of these which can fill a book – literally. That is not for this article.

For today, we want to focus on the need for leave related to a “serious health condition” of the employee. How do you best approach this? Develop your own internal protocol and use the Department of Labor (DOL) forms to help keep you on track.

First step. Understand the employee need not utter the words “Family and Medical Leave Act” or “FMLA” to trigger the protection of the law. Train your managers and supervisors as to what types of words or behavior should warrant a call to HR to discuss whether the FMLA applies; e.g., an overnight stay in the hospital, absence of three consecutive days, etc.

Second step. If you believe the FMLA might be at play, pull out the forms. The first form to consider is the Notice of Eligibility and Rights and Responsibilities, Form WH-381. Not a catchy name, but a handy form. If you have not recently, take a minute and read the form. It provides useful information for the employer and the employee. In Part A, it reminds the employer to note the date when the employer became aware of the need. (It is written as if the employee gave notice, but you can strike that out and memorialize when the notice was given to you and by what means.) It has boxes to check for which type of leave might be applicable, so as to remind you of what situations apply and to remind you that the FMLA is not without boundaries.

Then, and this is very important, it reminds you to go through the employee eligibility factors. Not all employees will be eligible for FMLA leave. So go through the questions. Has the employee worked for the employer for 12 months? Has the employee worked at least 1,250 hours during the preceding 12 months? Does the employee work at a worksite which employs at least 50 employees? If the answer to any of these is no, it is highly likely the employee is not eligible for leave under the FMLA at this time (there are a few quirks which may require legal counsel). Using the form reminds employers to go through the process each and every time the situation arises. The answers may vary from time to time, from event to event with the same employee.

Part B reminds employers of the rights it has. It has the right to require certain information at this point, such as certification of need. It has the right to request premium payments toward health insurance. It has the right to require the employee to use available paid leave under certain circumstances. However, if you fail to tell the employee about these things – at this time – you can lose these rights. Using this form keeps an employer on track.

If you require the employee (and the choice is yours) to provide a certification, the employee has at least fifteen calendar days from the receipt of this form to return the requested certification. Once you receive the certification, you have five business days to let the employee know if you approve the leave as FMLA-protected. This is all set out in the law, and all written down for you on the form.

Third Step. Let’s assume you required the employee to provide a Certification of Health Care Provider for Employee’s Serious Health Condition, Form WH-380-E. You will see that the Certification requires that the employer complete Section I, so be sure and do that before you give it to the employee. It requires that you list the employee’s essential job functions and check a box if the job description is attached. It is preferable if you can attach a pre-existing job description. The more detailed it is, the better information you will receive from the health care provider as to what the employee can and cannot do relative to the actual job.

Reviewing the completed Certification has become very complicated. In years past, the forms had a spot for the health care provider to simply declare whether the patient had a serious health condition. Those days are over. Now, the health care provider merely answers questions which relate to the definition of serious health condition, but the burden of determining whether the employee qualifies for FMLA falls squarely upon the employer. While most fully completed Certifications will qualify, not all will. The mere fact that a physician signs the form does not translate to FMLA protection. The answers may in fact fall short, or the Certification may not be complete such that the employer cannot make a determination. There is a process by which an employer may request additional information. This is a step that many employers skip. If you have questions about whether an employee has a serious health condition, you may want to seek legal counsel about your options.

Fourth Step. Within five business days of your receipt of the Certification, you must communicate something to the employee about whether the absences will be protected by the FMLA. This is done with the Designation Notice, Form WH-382. Again, it is worthwhile to read the form as it provides information helpful to employers and employees about their respective obligations. The top of the form is merely to recap the employee’s name and date of request. The form is then broken into three sections, and you complete only one of the three sections.

The first section is used if the FMLA request is approved. If so, the form provides the employee with needed information such as the use of paid leave and whether the employee will be required to present a fitness-for-duty certificate upon return-to-work. If you fail to check the box requiring a fitness-for-duty certificate, you cannot require one before the employee returns to work.

The second section advises the employee you need more information. This is most commonly used when the Certification submitted did not provide enough information. Perhaps the physician left a question blank which needed to be answered. Here’s a tip. In such a situation, it is handy for the employee and the physician if you copy the completed Certification (keep the first one you received in a file), highlight the items you still need completed, and return that to the employee to give to his or her health care provider. This makes it very clear as to what you need. Plus, practically speaking, the physician might not charge the employee a second “completion fee” since the physician is merely being asked to finish the form as opposed to completing a new form. (If you use this section, you will give the employee fifteen more days and repeat the process.)

The third section is used to advise that the FMLA will not be applied and why.

You must continue with the process until you have given a Designation Notice which either grants or denies FMLA leave to the employee.

After the Forms. Because serious health conditions are rarely simple, you must be vigilant about the paperwork.

If the employee has presented a Certification providing for FMLA covered absences, you must track the absences which are protected, ensuring they comply with the Certification. For example, if the Certification states that the absences will last for three months, averaging twice per week, those types of absences should be expected. However, if the employee starts having absences of four times per week or continues past the three months, you might consider requesting an updated Certification (along with the Notice) to see if the additional absences are also protected by the FMLA. A request for the new Certification can only be sought in connection with an absence (and often only every 30 days). If you have questions about changes in circumstances and limits on your rights for additional information, seek legal counsel.

Annual Certifications. For FMLA leave that will last beyond a single FMLA leave year, you are entitled to require a new Certification for each new FMLA leave year. If this is in your protocol (and it’s a good idea), put it on a calendar so you consistently apply this to all employees on FMLA. This will most likely apply to employees with chronic conditions, but it could apply to other situations where an employee is on intermittent leave.

Communication and Paperwork. The bottom line for the FMLA is communication and paperwork. An employer must have clear and ongoing communication with its employees about rights and obligations under the FMLA. An employer must also have impeccable paperwork to prove its communications as well as to track the FMLA-protected leave. The DOL’s website has several forms which can be helpful to employers.

As you embark upon a new year, take a few minutes to see if your organization might benefit from a FMLA paperwork checkup.

By Kristen L. Brightmire, kbrightmire@dsda.com