Notice Requirements

15. Is the employer required to tell me what its FMLA policies are?²⁰

Yes. Employers must take the following steps to provide information to employees about FMLA:

• Post and keep posted a notice of the FMLA requirements in places where employees can readily see it. The notice also must provide information concerning procedures for filing complaints with the Wage and Hour Division of the U.S. Department of Labor.
• Include information about employee rights and obligations under • FMLA in employee handbooks or other written material, including collective bargaining agreements. If handbooks or other written material do not exist, the employer must provide general guidance about employee rights and obligations under FMLA by distributing a copy of the general notice (poster mentioned in first bullet –WH Publication 1420) to each new employee upon hiring.

Electronic posting and distribution is permissible.

16. Do I have to give notice to the employer before I take leave?²¹

If the need for leave is foreseeable, the law requires 30 days notice or, if 30 days advance notice is not possible, notice must be given “as soon as practicable” (meaning the same day or the next business day after employee becomes aware of need). If the need for leave is not foreseeable, the employee must follow the employer’s usual call-in rules and procedures unless there are unusual circumstances. If an employee does not comply with the employer’s procedures, and no unusual circumstances exist, FMLA-protected leave may be delayed or denied.²²

17. How will I know whether the leave has been approved?²³

The employer must provide you with a written notice designating the leave as FMLA leave and detailing specific expectations and obligations of an employee who is exercising his/her FMLA entitlements. (See Appendix C for the kinds of information included in the notice.) After requesting leave, or when the employer has enough information to determine whether or not the leave is FMLA-qualifying, these employer notices (Rights & Responsibilities and Designation) must be provided to you within five business days.

18. If the employer fails to tell me that the leave qualifies for FMLA leave, can the employer still count the time I’ve already taken off retroactively?²⁴

Yes. The regulations concerning designation have been revised to comply with the U.S. Supreme Court’s decision in Ragsdale v. Wolverine World Wide, Inc. Ragsdale ruled that a “categorical” penalty for failure to appropriately designate FMLA leave was inconsistent with the statutory entitlement to only 12 weeks of FMLA leave and contrary to the statute’s remedial requirement to demonstrate individual harm. Under the regulations, retroactive designation is permitted if an employer fails to timely designate leave as FMLA leave (and notify the employee of the designation). The employer may be liable, however, if the employee can show that he/she has suffered harm or injury as a result of the failure to timely designate the leave as FMLA.

19. In order to qualify for FMLA leave, do I have to specifically mention FMLA?²⁵

No, not when you are seeking leave for the first time for a FMLA-qualifying reason. You must, however, provide “sufficient information” to make the employer aware of the need for FMLA leave and the anticipated timing and duration of the leave. “Sufficient information” may include information such as stating that the condition leaves you unable to perform the functions of your job, that you were hospitalized overnight, you are pregnant, or you (or your family member) are under the continuing care of a health care provider. If you are seeking leave due to a FMLA-qualifying reason for which you have already been provided FMLA leave, you must either reference specifically the qualifying reason for leave or the need for FMLA leave. In all cases, your employer should ask for further information if it is necessary to determine if the leave being requested qualifies as FMLA leave.

20. How often may my employer ask for medical certifications for an ongoing serious health condition?²⁶

An employer may request recertification no more often than every 30 days and only in connection with an absence by the employee. However, if the condition will last for more than 30 days, the employer must wait to request a recertification until the specified period has passed. Nonetheless, in all cases, an employer may request a recertification every six months in connection with an absence.

For example, Joe takes eight weeks of FMLA leave for a back operation and intensive therapy and gives his employer a medical certification that states that he will be absent for eight weeks. At the end of the eight-week period, Joe tells his employer that he will need to take three days of FMLA leave per month for an indefinite period for additional therapy; his employer may properly request a recertification at that time. Six months later, and in connection with an absence for therapy, the employer may properly ask Joe for another recertification for his need for FMLA leave.

The regulations also allow an employer to request recertification in less than 30 days if the employee requests an extension of leave, the circumstances described in the previous certification have changed significantly or if the employer receives information that casts doubt upon the employee’s stated reason for the absence or the continuing validity of the certification. Additionally, for chronic medical conditions lasting longer than one year, employers may request a new certification each leave year.²⁷