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We spent the last post providing an overview of the Family and Medical Leave Act (FMLA) – who’s covered, who’s not, and where to find additional resources made available by the Department of Labor.  But as an employer, what are your basic responsibilities when your company is covered by the Family Medical Leave Act?

Again, a company is a covered employer if it employs 50 or more employees in 20 workweeks or more within the current calendar year or the previous calendar year.

*Important Note: If your location has 49 or less employees, that does not necessarily mean that your company is not a “covered employer.”  If your company has multiple locations or is a subsidiary, any other locations within 75 miles of yours also count toward the 50-employee minimum.

Place an FMLA Poster in the Workplace

If you’re an employer, you’re already aware of all of the different pieces of paper you have to have up in the workplace.  If you’re covered by the FMLA, this one has to go up too.

It should be placed in an highly-visible location where employees are likely to see it.  Typically,  an employee break room is a fantastic place to hang required materials.

Send Out FMLA Paperwork, Even If Not Requested

As the employer, you’re on the hook if an employee should have received FMLA leave, even if they never requested it.  If an eligible employee notifies you of an event that may be FMLA-qualifying, provide FMLA paperwork to that employee.

This does not mean that the employee will automatically have the leave covered by the FMLA; it simply means that the leave may be covered.  In this scenario, better to be safe than sorry.

When you obtain further information from the employee and determine that the event is FMLA-qualifying, the company must inform the employee that FMLA will be applied and inform the employee that it will count against their 12-week entitlement.  The employee should also be informed of how many days or hours they have available under FMLA.

Request Medical Certification

While not required, it’s important to request medical certification anytime an employee requires FMLA time for their own serious health condition or a family member’s serious health condition.  How the company handles medical certification should be spelled out in the FMLA notice initially provided to the employee. This information should also be included in the employee handbook.  The only real requirement is that an employee must be given a minimum of 15 days to return the certification.  The necessity for emphasis is because this is oftentimes tricky and easily-screw-up-able.

Medical Certification, completed by a health care provider, provides the company with the following information:

  • The medical condition of the employee or family member that requires FMLA leave
  • An estimate of how long FMLA leave is anticipated to last
  • An explanation of how the medical condition will impact the employee’s ability to work, if the leave is for their own serious health condition

Restore the Employee to His/Her Position

Once you have received a Return to Work form from an employee who was out on FMLA leave, you are required to return them to the same position they held (or one equivalent) before taking leave. Failure to do so will lead to an FMLA retaliation claim.

Put it All in Your Employee Handbook

Provide as much information as possible, including the information found on the FMLA poster, in your company’s employee handbook.

This is particularly important if you want to enforce specific policies relating to the FMLA, such as a call-in policy.

If you have 50 or more employees, or you think you may soon be pushing that figure, contact a Wisconsin employment attorney to discuss the steps you need to have in place to avoid liability.  Family and Medical Leave Act claims are extremely popular and are highly technical in nature, “small” mistakes can lead to big problems.

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