FMLA Initial Notification

 

Employer Directions:

 

Employers Covered By FMLA

 

Employers who have more than 50 employees within 75-mile radius must provide FMLA leave to all of their workers.   For the purposes of FMLA, all employees on the payroll, including full-time and part-time employees and those already on leave, are included in this count.   Temporary workers may also count, as well as all employees involved in a joint venture.  

 

The laws regarding employee count are often confusing and complicated and may vary widely from state to state.   This issue should be discussed with your attorney or other qualified expert.   Additional information can be obtained from the U.S. Department of Labor or your state´s labor office.  

 

This notification letter provides general information about the federal FMLA.   Almost half of the states have additional laws regarding FMLA leave.   The regulations vary widely and employers must comply with both state and federal FMLA laws.   For information regarding your state´s laws, contact your state labor department or your attorney or other qualified expert.

 

 

FMLA Notification

 

Employers who must provide FMLA leave must display in their workplace a poster called "Your Rights Under the Family and Medical Leave Act of 1993."   It´s available from all branches of the U.S. Department of Labor´s Wage and Hour Division as well as many state labor departments.   In addition to this if a company has an employee handbook, they must include employee FMLA rights.   If an employee handbook is not available employers must inform employees of their FMLA rights when they request leave under the FMLA.   The following letter is meant to fulfill that notification purpose.  

 

Substitution of Paid Leave

 

The FMLA allows employers to decide whether or not to substitute company paid leave for unpaid FMLA leave.   Many employers allow their employees to make that determination.   The sample notification letter makes reference to three types of Substitution of Paid Leave.   You should review the three types, select the most appropriate one, and delete the remaining two.

 

The first version is for employers who do not allow substitution of paid leave.   The second is for employers who allow their employees to decide.   The third version is for employers who automatically substitute paid leave for FMLA leave.   Both the second and third versions contain examples of company paid leave to help clarify the issue for employees.   You must customize the examples to suit your business needs.   Companies who do not provide any paid leave should delete the whole section, or provide a simple statement explaining that they do not provide any paid leave.    

 

Returning to Work

 

If an employee took FMLA leave due to a personal medical condition, his/her employer has the right to require medical certification before the employee returns to work.   Employers may make this requirement only if it is their standard policy to request medical certification before employees return from medical leave.   If your company policy does not require certification, the sentences under the Returning to work category that require additional information, can be deleted.   There are many state or local laws or union ordinances regarding return-to-work, and employers must comply by those laws in addition to FMLA laws.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

BUSINESS NAME}

{ADDRESS}

{CITY, STATE, ZIP CODE}

Phone:   {NUMBER}    

Fax:   {NUMBER}

{EMAIL}

 

 

{DATE}

 

{EMPLOYEE NAME}

{ADDRESS}

{CITY, STATE, ZIP}

 

RE: Family and Medical Leave Act (FMLA) Initial Notification

 

Dear {EMPLOYEE NAME}

 

Under the Federal Family and Medical Leave Act of 1993, certain employees are entitled to 12 weeks of unpaid leave per year to attend to specific personal issues.   This letter is to inform you of your rights under the Family and Medical Leave Act.   Please retain this letter in your files for future reference.   If you have any questions please contact {NAME} at {ENTER CONTACT INFORAMTION}.

 

Sincerely

 

 

{NAME}

{POSITION}

{BUSINESS NAME}

 

Enclosure

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Initial Notification of Employee Rights Under the Family and Medical Leave Act of 1993 (FMLA)

 

Who Must Provide FMLA Leave and Leave Eligibility

 

Employers who have 50 or more employees within a 75-mile radius must provide FMLA leave to all of their workers.   {BUSINESS NAME} is an employer who falls within this category.

 

Employees are eligible for 12 weeks of unpaid leave under the FMLA every 12 months if they meet both of the following requirements:

 

·               The employee has worked with one business for 12 months or more (the 12 months does not need to be consecutive).

·               The employee has accrued at least 1250 work hours (approximately eight months based on a 40-hour work week or one year based on a 25-hour week) in the last 12 calendar months.

 

Employers are permitted to exempt the highest paid 10% of their employees from FMLA leave since those employees are often indispensable to the well being of the business.

 

Reasons for FMLA Leave

 

Employees may take FMLA leave for the following reasons:

 

Personal Recovery - An employee is eligible for FMLA leave if {HE/SHE} has or is recovering from a serious medical condition.   The condition must be serious enough to warrant an overnight stay at a medical facility or a three or more day absence from normal life activities (work, school, etc.).   Common ailments, such as cold, flu, upset stomach, and headaches (not migraines) are not covered under FMLA, nor are routine medical, eye, and dental visits, unless the visit is to diagnose a serious condition.  

 

Caring for a Sick Child, Spouse, or Parent - An employee may take FMLA leave to care for a sick child, spouse, or parent if that family member has or is recovering from a serious medical condition.   The same criteria that determine whether an employee is eligible for FMLA leave for personal recovery apply here.   The condition must be serious enough to warrant an overnight stay at a medical facility or a three or more day absence from normal life activities (work, school, etc.).   Common ailments, such as cold, flu, upset stomach, and headaches (not migraines) are not covered under FMLA, nor are routine medical, eye, and dental visits, unless the visit is to diagnose a serious condition.  

 

Under FMLA, the definition of "child" applies to biological, adopted, or foster children, stepchildren, and legal wards.   In addition, children for whom the employees act as parents (i.e. grandparents who have complete caretaking responsibilities) are covered as well.   The child must be under 18 years of age.   If the child is 18 or over, he/she must be incapable of taking care of him/herself due to a mental or physical disability.

 

The FMLA defines spouse as a husband or wife.   In-laws are not covered under FMLA.

 

 

Attending to a New Child - An employee may take FMLA leave to attend to the birth, adoption, or foster placement of a child.   The FMLA defines foster care as 24-hour care for a child away from his/her parents or legal guardians.   Foster care must be based on a court order or on an agreement approved by a state agency.   Leave for a new child (a newborn, adopted, or foster child) must be taken within a year of the child´s arrival.   Expectant mothers may begin the leave before the actual birth for prenatal care or if her condition prevents her from working.   In addition, employees may also begin the leave before the actual adoption or foster placement of a child.   Leave for a newborn must be taken all together, the 12 weeks time may not be taken in separate sections.  

 

Leave Notice

 

Employees must give their employers at least a 30-day notice for foreseeable medical treatment in order to give both parties time to determine the terms of the leave, under the FMLA.   In cases where events are impossible to schedule or predict, we will grant the employee leave even if we have not approved the leave in advance, provided that the leave fits the eligibility requirements of the FMLA.  

 

Leave Length

 

An employee may take up to 12 weeks of unpaid leave under the FMLA.   Spouses who work for the same business must aggregate those 12 weeks if they are taking leave to care for a new child or seriously ill family member.   If a child´s parents are not married to one another, they each have the full 12 weeks of leave.  

 

Flexible Scheduling

 

Employers and their employees may agree to a more flexible FMLA leave.   The employee may take intermittent leave (i.e. work four days a week instead of five), or reduce the number of hours they work each day.   Employers may also temporarily transfer an employee to another job with equivalent pay and benefits.   The temporary job does not need to have equivalent duties.   In addition, employers and employees may agree to other solutions, such as job sharing and work-at-home.  

 

Substitution of Paid Leave {EMPLOYERS PICK ONE OPTION AND DELETE REMAINING}

 

{OPTION 1}

According to company policy, {BUSINESS NAME} does not permit paid leave be substituted for unpaid FMLA leave.

 

{OPTION 2}

According to company policy, {BUSINESS NAME} permits employees to have the option of substituting paid leave for unpaid FMLA leave.   Any substitution of paid leave must abide by our policy regarding that paid leave.   For example, our paid family leave policy allows leave only if the seriously ill family member is a child.   In such a case, an employee may not substitute paid family leave to take care of a sick parent, but the employee may take unpaid leave under the FMLA.  

 

A substitution of paid leave will count against the employee´s FMLA leave allotment.   If an employee takes a 2-week paid family leave to care for a child, then we will deduct those 2 weeks from the FMLA 12-week requirement.   The employee is then eligible for 10 weeks of FMLA leave.  

 

If an employee uses paid leave for circumstances not covered by FMLA, then that paid leave will not count against the FMLA leave period.   An employee who uses our medical leave to take care of routine medical duties, for example, will not be deducted any time from his/her FMLA leave allotment.    

 

{OPTION 3}

According to company policy, {BUSINESS NAME} automatically substitutes the appropriate paid leave for unpaid FMLA leave.   Any substitution of paid leave will abide by our policy regarding that paid leave.   For example, our paid family leave policy allows leave only if the seriously ill family member is a child.   We will not, then, substitute paid family leave if the employee takes leave to care for a sick parent.   Instead, we will use FMLA leave.   If an employee takes a 2-week paid family leave to care for a child, then we will deduct those 2 weeks from the FMLA 12-week requirement.   The employee is then eligible for 10 weeks of FMLA leave.  

 

If an employee uses paid leave for circumstances not covered by FMLA, then that paid leave will not count against the FMLA leave period.   An employee who uses our family leave to take care of a parent, for example, will not be deducted any time from his/her FMLA leave allotment.

 

Medical Certification

 

Employers have the right to ask employees to provide written medical certification of their or their family members´ medical condition.  

 

Depending on the situation, that certification may include:

·               Diagnosis of condition

·               Date when serious condition started

·               Length of time condition will probably last

·               Treatment prescribed

·               If inpatient treatment is required

·               Statement regarding employee´s ability to perform the essential duties of the job

·               Statement regarding family member´s need for employee´s assistance

·               Medical need for intermittent and/or reduced work-hour leave

 

Specification on what must be included in the certification will be provided when an employee applies for leave under the FMLA.  

 

Employers also have the right to request a second and third opinion from someone they designate or approve.   In general, company doctors do not qualify.   The company will pay for the cost of any second or third opinions requested.  

 

Employers may also request periodic re-certifications during the FMLA leave.   In general, we will not ask for re-certifications more often than every 30 days.

 

Benefit Continuation and Reinstatement

 

While an employee is on FMLA leave, the company will maintain his/her health care benefits as if the employee were still working. However, the employee is still responsible for paying his/her normal deduction for health insurance.   If an employee fails to make the appropriate payments, the company reserves the right to terminate coverage.

 

FMLA does not require employers to continue any other benefits, such as accrued seniority, vacation, or sick leave.

 

When an employee returns from leave, they will receive back the same benefits they had before the leave.   The employee cannot lose any benefits he/she earned or vested before the leave.   However the benefits are subject to changes that occurred while the employee was on leave.   For example if the company alters the business´ severance pay package, the employee is now entitled to the altered package, not the original one.   An exception to this are changes based on seniority or accrual may not necessarily apply to employees returning from leave.   For example, if a benefit plan is contingent upon a certain number of hours worked, and if an employee returning from leave did not accrue that number of hours, then that employee is not entitled to that benefit.  

 

FMLA leave time is considered continued service for the purposes of vesting and eligibility to participate in pension and other retirement plans.  If the plan requires the employee to be employed on a certain date to be credited for vesting, contributions, or participation purposes, an employee on FMLA leave must be considered employed on that date.  

 

When an employee returns from FMLA leave, he/she is entitled to any "unconditional" pay raises that he/she would have received had he/she stayed on the job.   For example, an unconditional pay raise could be a raise based on rising cost-of-living expenses.   However, returning employees are not entitled to conditional pay raises.   Conditional pay raises are based on length of service, performance, seniority, etc.  

 

If the employee does not return after the leave period expires, the company may demand reimbursement for the health care premiums paid while the employee was on leave.   However the company cannot demand reimbursement when the employee does not return to work for one of the following reasons:

·               The employee or family member suffers a recurrence, onset, or continuation of a serious health condition.

·               The employee is subject to circumstances beyond his/her control.   For example, if the employee´s spouse is transferred to a job more than 75 miles away from the employer´s workplace.

 

Returning to Work

 

Equivalent Position - When an employee returns to work after FMLA leave, the company will return them to their former job or an equivalent one.   An equivalent job has the same terms, conditions, benefits and compensation, status, prerequisites, and privileges as the former job.   It must have the same or substantially similar duties and responsibilities, and require the same or substantially similar skills, effort, and authority.  

 

Exceptions - If an employee would have experienced a change in employment had he/she stayed on the job, that change will come into effect when the employee returns.   For example, if the employee would have been laid off had he/she stayed on the job, the company does not need to re-employ that employee.   Or, if the company transfers all employees to a new work site, the employee on leave will be transferred under the same terms and conditions.

 

If an employee cannot perform the same or equivalent job due to a disability, the Americans with Disabilities Act (ADA) may require us to place that employee in a job with a reasonable accommodation or to place that employee in a part-time job with the benefits available to part-time employees.

 

In some cases, a returning employee may no longer be qualified for his/her former job because he/she did not attend a certain course, renew his/her license, etc.   In such a case, the company will give the employee a reasonable amount of time to fulfill the job requirements after returning to work.