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Some good explanations on the tough spots offices encounter with the FMLA

The Family and Medical Leave Act (FMLA) continues to pose a lot of questions for a lot of readers.

Here are some Medical Office Manager has received plus some general information on the law. The answers are provided by Vanessa G. Nelson, SPHR, CLRL of Expert Human Resource Consultants in Flint, MI.

The FMLA applies to offices with 50 or more employees and allows up to 12 weeks of unpaid leave a year. During the time off, the employee’s job is protected.

The leave can be taken for the birth, adoption, or foster care of a child and also for a serious health condition or to care for a family member with a serious health condition.

It applies further when a family member is called to active military duty.

Asking for the leave

• How much lead time does the employee have to give the office when requesting FMLA leave?

If the leave is foreseeable, the employee has to give 30 days’ notice, Nelson says. That’s possible, for example, when somebody schedules a surgery.

But if the leave is not foreseeable, the employee simply has to give notice as soon as possible.

• To qualify for FMLA leave, does the employee have to ask for it specifically?

Not the first time. At that point, there doesn’t have to be any mention of FMLA at all. In fact, it’s the employer’s job to determine if the leave falls under the FMLA and if so, to explain what rights the employee has under that law.

Nelson’s advice is to listen for words and comments that may indicate FMLA such as diabetes, pregnancy, heart attack, stroke, adoption, or I have to take care of my parents/child/spouse.

However, the second time the employee asks for leave for the same reason, it’s the employee’s responsibility to ask specifically for FMLA leave.

Granting the request – or not

• Can the office require proof that medical leave is warranted under the FMLA?

Yes. It can require medical certification. And if so, the employee has 15 days to produce it.

The office should ask for the certification within five business days of the request – or, if the leave is unforeseen, within five days after the leave begins.

But all it can ask for is a physician’s note saying the employee will not be able to work and for what amount of time. It can’t require more than that.

There are government forms for the certification, though the office can use other forms if it wants. They are WH-380-E for personal medical leave and WH-380-F for leave to care for another person, and they are on the Department of Labor site at

To make sure the doctor knows what type of work the employee is being excused from, Nelson advises attaching a copy of the job description to the form.

Once the certification comes in, the office has five days to grant or deny the leave. Again, there is a form for that – WH-381 – and it too is on the DOL website.

• What if the employee says the matter is private and refuses to provide certification?

Explain that the information will be seen only by whoever authorizes the leave, she says. And if the employee still refuses, the office can deny the leave and enforce the regular attendance policy.

• What if the certification comes back incomplete?

Give it back to the employee and explain that it has be completed within seven days. But the office has to tell the employee in writing what additional information is necessary.

• What if the office isn’t satisfied with the doctor’s opinion?

It can require a second and a third opinion, and the office is required to pay for those.

• What notice does the office have to give the employee if it rejects the leave request?

Once the office gets the doctor’s certification, it has five days to allow or deny the leave. If it’s denied, the office has to give at least one reason why.

Once the leave is granted, there’s no going back. The decision is final.

When the manager gets suspicious

• Can the office ask for recertification while the employee is out on leave?

Yes. If there’s reason to question the need for the leave or the amount of time the employee is taking off, the office can ask for recertification, and it can do so at any time.

Absent doubt, however, there are limits.

The office can’t ask for recertification more often than every 30 days. And if it has granted a specific amount of leave time, say six weeks, it can’t ask for recertification until the six weeks is up.

So if Staffer A takes an approved six-week leave, the office can’t ask for recertification during that time. But once the six weeks ends, if the staffer asks for more time, the office can ask for recertification.

For long leaves, it can ask for recertification every six months. Suppose Staffer B gets eight weeks of leave and then asks for three days’ leave each month for therapy. The office can ask for recertification to verify the need for therapy. And every six months after that, it can ask for yet another recertification.

Drug treatment, yes; drug taking, no

• Can an employee request FMLA leave for drug treatment?

If the employee is getting treatment, the answer is yes, because substance abuse falls under the definition of serious health condition.

However, it doesn’t apply if the absence is due to the employee’s use of drugs or alcohol. It only applies to the treatment. And the amount of time off is limited to the time the employee cannot work because of the treatment.

A broader definition of ‘child’

• Does the FMLA apply when an employee wants to care for a child who is not related either biologically or legally through marriage or adoption?

Yes, Nelson says.

In fact, the DOL clarified the definition of “son and daughter” to ensure that FMLA coverage would extend to anybody who assumes the role of caring for a child.

Specifically, the DOL says that anybody who acts as the child’s parent can get FMLA leave, even if that person is not the legal guardian.

It also says that the FMLA covers all families, including LGBT, or lesbian, gay, bisexual, and trans-gendered families.

Thus, an uncle can get FMLA leave to care for a nephew who has a single parent who has been called for active military duty. And a grandmother can get leave to care for a child whose mother is debilitated.

By the same reasoning, if a child’s parents divorce and both remarry, they plus the two stepparents are all eligible for leave to care for that child.

“Anybody who stands in when the parent is not there” qualifies for the leave.









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