Another Push for Paid Family Leave

The Family and Medical Leave Act (“FMLA”) is a federal law that requires certain employers to provide qualifying employees with up to 12 weeks of unpaid leave. This blog post is Part II of a series providing an overview of the FMLA. Part I discussed the basics of the law, and this post outlines how an employee requests FMLA leave.

How do I ask for leave?
An employee must provide enough notice to make the employer aware that the employee needs to go on FMLA leave. An employee does not need to specify that he/she wants to take FMLA leave. For example, if an employee requests maternity leave for an expected child birth, then the employer is considered to be on notice that the employee seeks FMLA leave.

When do I need to give notice?
If the need for FMLA leave is foreseeable (for example, for the birth of a child), then the employee must give 30 days’ notice. If the need for FMLA leave is unforeseeable, then the employee must provide notice as soon as practicable (usually the same or next business day after knowing the need to go on leave). If the employee does not give timely notice and has no reasonable excuse for not providing timely notice, then the employer may delay the employee’s FMLA leave until at least 30 days after notice was given.

What, if anything, do I have to show my employer?
An employer may require an employee to provide a certification from their healthcare provider to confirm that the employee or their family member has a serious health condition. The certification may be the Department of Labor’s form for FMLA medical certifications, or it may be the employer’s own form, so long as the employer requires no additional informational beyond what is asked for by the Department of Labor’s form.

After the employer requests a certification, the employee has 15 days to provide it, or longer if the employee cannot provide it within 15 days despite a good faith effort to do so. If the employee’s certification is incomplete, the employer must inform the employee in writing and give the employee one week to complete the certification. If the employee fails to provide a proper certification within the required timeframes, then the employee risks losing the right to designate their leave as FMLA leave.

Can my employer make me get a second or third medical opinion?
If the employer has reason to doubt the validity of the certification, the employer can require the employee or the employee’s family member to get a second medical opinion. Generally, the healthcare provider who gives the second medical opinion cannot be regularly employed by the employer. The employee or employee’s family member must typically pay the expenses associated with the second medical opinion.

If the second opinion is different from the first opinion, then the employer can require the employee or the employee’s family member to get a third opinion. However, the employer must pay for reasonable expenses associated with getting a third opinion. Additionally, the healthcare provider providing the third opinion must be jointly chosen between the employer and employee. The third opinion is final and binding.

If you have questions about how the Family and Medical Leave Act affects you or someone you love, contact the employment lawyers at Willig, Williams & Davidson at (800) 631-1233.

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