Labor & Employment Law Articles

Family Medical Leave Act Record-Keeping Requirements

Every employer should evaluate their compliance with the provisions of the Family and Medical Leave Act. The greatest pitfall for employers is the requirement that employers designate absences covered under the Act as FMLA leave and notify employees in writing of the designation. In the event the employer fails to designate FMLA leave properly or fails to notify the employee of the designation, the employer may not be able to count that leave time against the employee's 12-week entitlement. That means that an employer who believes that it has lawfully terminated an employee who has taken more than 12 weeks of leave, may be instead liable for backpay and frontpay to the discharged employee.

Under regulations promulgated by the Department of Labor interpreting the FMLA, an employer must inform an employee within two business days after an employee requests leave covered by the FMLA as to whether the leave will be counted against the employee's 12-week entitlement. The burden is on the employer to determine whether the FMLA applies even if the worker does not ask for "FMLA leave." In other words, the employer is required to determine whether or not each and every absence is covered by the FMLA. It is only necessary for the employee to provide enough information to put the employer on notice that the leave may be for an FMLA-qualified reason. It is thus essential that employers who maintain attendance records be trained to identify which absences would be covered under the FMLA and to obtain additional information from employees where it is not clear that the absence is covered under the FMLA. For example, it may be necessary to ascertain whether the employee is under the care of a doctor or has stayed overnight in the hospital.

The employer may initially make the designation orally, but it must be confirmed in writing. The Department of Labor has promulgated a form called the Employer Response to Employee Request for Leave which can be used by employers to designate absences as FMLA leave. If you would like a copy of this form, please fax your request to our office at (516) 228-3136.

The Family and Medical Leave Act requires employers with fifty or more employees to provide workers with up to 12 weeks of leave per year because of the birth or adoption of a child; to care for a parent, spouse or child with a serious health condition; or if an employee is unable to work due to serious health condition. A serious health condition is one in which initially the employee is ill for at least three calendar days under the care of a physician or requires an overnight stay in a hospital. Subsequent absences due to a serious health condition can be a single day or even a portion of a day and still be covered under the FMLA. An employer has the right to demand medical certification from its employees to verify the existence of a serious health condition. Again, the Department of Labor has provided a form called the Certification of Physician Form which can be used by employers to obtain verification.

Companies with "no-fault " attendance policies must take particular care to ascertain whether absences are covered under the FMLA before counting them against employees pursuant to these policies. Company attendance records should clearly indicate which absences are covered under the FMLA and which are not.