Requests for Family and Medical Leave

April 1, 1995 Advisory

If an employee bas been out of work with a workers' compensation injury for five months, returns to work for less than a month and then requests twelve weeks of family and medical leave to care for a sick parent, how should the employer respond?

Possible Response One: Yes.
An employer might assume that the request should be granted because workers' compensation leave is separate from family and medical leave.

Possible Response Two: No.
An employer might assume that the leave request could be denied because the employee had already used up his allotted family and medical leave.

Neither interpretation of the Family and Medical Leave Act (FMLA) is necessarily correct. Because an employer is within its rights to require Workers' Compensation leave to run concurrently with a family and medical leave, an employer could deny the request. This is only true, however, if proper procedures have been followed while the employee was out with the work-related injury. The employee must have been notified at the time he took the leave associated with his work-related injury that the leave was being counted as a family and medical leave.

Notice of Rights Required

  1. Covered employers must post notices in conspicuous places notifying employees of their state and federal leave rights. Notices that comply with the federal law are available through the Wage and Hour Division of the U.S. Department of Labor.
  2. If an employee handbook exists that describes the employer's policies regarding leave, wages, attendance, and similar matters, the hand book must include information concerning FMLA rights and responsibilities.
  3. If no such handbook exists, an employer must provide written guidance to employees about their rights and obligations under the FMLA.

Detailed Written Response to Request Required
When an employee informs an employer of the need for an FMLA leave, the employer must provide the employee with written notice detailing the specific expectations and obligations of the employee and explaining the consequences of failing to meet these obligations. The notice must inform the employee:

  • that the leave will be counted against the employee's FMLA leave entitlement;
  • whether the employee must furnish medical certification and the consequences of failing to do so;
  • of the employee's right to substitute paid leave;
  • about the employee's obligation to make any premium payments to maintain health benefits and the arrangements for making such payments as well as the consequences of failing to do so;
  • whether the employee will need to present a fitness-for-duty certification upon return to work;
  • whether the employee is a "key employee," and the consequences of being such an employee;
  • a statement that the employee has a right to be restored to the same or equivalent job upon return; and
  • information concerning the employee's potential liability for payment of health insurance premiums paid by the employer during the leave if the employee does not return to work.

The US. Department of Labor's Wage and Hour Division has recently issued a revised sample notification form which employers may use to provide the necessary notice to employees.