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Federal FMLA Regulations for the Family and Medical Leave Act of 1993
How do Employees Learn of Their FMLA Rights and Obligations, and What Can an Employer Require of an Employee?
| Employer notice requirements. 825.300
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| (a) General notice. (1) Every employer covered by the FMLA is
required to post and keep posted on its premises, in conspicuous places
where employees are employed, a notice explaining the Act's provisions
and providing information concerning the procedures for filing
complaints of violations of the Act with the Wage and Hour Division.
The notice must be posted prominently where it can be readily seen by
employees and applicants for employment. The poster and the text must
be large enough to be easily read and contain fully legible text.
Electronic posting is sufficient to meet this posting requirement as
long as it otherwise meets the requirements of this section. An
employer that willfully violates the posting requirement may be
assessed a civil money penalty by the Wage and Hour Division not to
exceed $110 for each separate offense.
(2) Covered employers must post this general notice even if no
employees are eligible for FMLA leave.
(3) If an FMLA-covered employer has any eligible employees, it
shall also provide this general notice to each employee by including
the notice in employee handbooks or other written guidance to employees
concerning employee benefits or leave rights, if such written materials
exist, or by distributing a copy of the general notice to each new
employee upon hiring. In either case, distribution may be accomplished
electronically.
(4) To meet the requirements of paragraph (a)(3) of this section,
employers may duplicate the text of the notice contained in Appendix C
of this part or may use another format so long as the information
provided includes, at a minimum, all of the information contained in
that notice. Where an employer's workforce is comprised of a
significant portion of workers who are not literate in English, the
employer shall provide the general notice in a language in which the
employees are literate. Prototypes are available from the nearest
office of the Wage and Hour Division or on the Internet at
http://www.wagehour.dol.gov. Employers furnishing FMLA notices to sensory-
impaired individuals must also comply with all applicable requirements
under Federal or State law.
(b) Eligibility notice. (1) When an employee requests FMLA leave,
or when the employer acquires knowledge that an employee's leave may be
for an FMLA-qualifying reason, the employer must notify the employee of
the employee's eligibility to take FMLA leave within five business
days, absent extenuating circumstances. See Sec. 825.110 for
definition of an eligible employee. Employee eligibility is determined
(and notice must be provided) at the commencement of the first instance
of leave for each FMLA-qualifying reason in the applicable 12-month
period (see Sec. Sec. 825.127(c) and 825.200(b)). All FMLA absences
for the same qualifying reason are considered a single leave and
employee eligibility as to that reason for leave does not change during
the applicable 12-month period.
(2) The eligibility notice must state whether the employee is
eligible for FMLA leave as defined in Sec. 825.110(a). If the employee
is not eligible for FMLA leave, the notice must state at least one
reason why the employee is not eligible, including as applicable the
number of months the employee has been employed by the employer, the
number of hours of service worked for the employer during the 12-month
period, and whether the employee is employed at a worksite where 50 or
more employees are employed by the employer within 75 miles of that
worksite. Notification of eligibility may be oral or in writing;
employers may use Appendix D of this part 825 to provide such
notification to employees. The employer is obligated to translate this
notice in any situation in which it is obligated to do so in Sec.
825.300(a)(4).
(3) If, at the time an employee provides notice of a subsequent
need for FMLA leave during the applicable 12-month period due to a
different FMLA-qualifying reason, and the employee's eligibility status
has not changed, no additional eligibility notice is required. If,
however, the employee's eligibility status has changed (e.g., if the
employee has worked less than 1,250 hours of service for the employer
in the 12 months preceding the commencement of leave for the subsequent
qualifying reason or the size of the workforce at the worksite has
dropped below 50 employees), the employer must notify the employee of
the change in eligibility status within five business days, absent
extenuating circumstances.
(c) Rights and responsibilities notice. (1) Employers shall provide
written notice detailing the specific expectations and obligations of
the employee and explaining any consequences of a failure to meet these
obligations. The employer is obligated to translate this notice in any
situation in which it is obligated to do so in Sec. 825.300(a)(4).
This notice shall be provided to the employee each time the eligibility
notice is provided pursuant to paragraph (b) of this section. If leave
has already begun, the notice should be mailed to the employee's
address of record. Such specific notice must include, as appropriate:
(i) That the leave may be designated and counted against the
employee's annual FMLA leave entitlement if qualifying (see Sec. Sec.
825.300(c) and 825.301) and the applicable 12-month period for FMLA
entitlement (see Sec. Sec. 825.127(c), 825.200(b), (f), and (g));
(ii) Any requirements for the employee to furnish certification of
a serious health condition, serious injury or illness, or qualifying
exigency arising out of active duty or call to active duty status, and
the consequences of failing to do so (see Sec. Sec. 825.305, 825.309,
825.310, 825.313);
(iii) The employee's right to substitute paid leave, whether the
employer will require the substitution of paid leave, the conditions
related to any substitution, and the employee's entitlement to take
unpaid FMLA leave if the employee does not meet the conditions for paid
leave (see Sec. 825.207);
(iv) Any requirement for the employee to make any premium payments
to maintain health benefits and the arrangements for making such
payments (see Sec. 825.210), and the possible consequences of failure
to make such payments on a timely basis (i.e., the circumstances under
which coverage may lapse);
(v) The employee's status as a "key employee" and the potential
consequence that restoration may be denied following FMLA leave,
explaining the conditions required for such denial (see Sec. 825.218);
(vi) The employee's rights to maintenance of benefits during the
FMLA leave and restoration to the same or an equivalent job upon return
from FMLA leave (see Sec. Sec. 825.214 and 825.604); and
(vii) The employee's potential liability for payment of health
insurance premiums paid by the employer during the employee's unpaid
FMLA leave if the employee fails to return to work after taking FMLA
leave (see Sec. 825.213).
(2) The notice of rights and responsibilities may include other
information--e.g., whether the employer will require periodic reports
of the employee's status and intent to return to work--but is not
required to do so.
(3) The notice of rights and responsibilities may be accompanied by
any required certification form.
(4) If the specific information provided by the notice of rights
and responsibilities changes, the employer shall, within five business
days of receipt of the employee's first notice of need for leave
subsequent to any change, provide written notice referencing the prior
notice and setting forth any of the information in the notice of rights
and responsibilities that has changed. For example, if the initial
leave period was paid leave and the subsequent leave period would be
unpaid leave, the employer may need to give notice of the arrangements
for making premium payments.
(5) Employers are also expected to responsively answer questions
from employees concerning their rights and responsibilities under the
FMLA.
(6) A prototype notice of rights and responsibilities is contained
in Appendix D of this part; the prototype may be obtained from local
offices of the Wage and Hour Division or from the Internet at
http://www.wagehour.dol.gov. Employers may adapt the prototype notice as
appropriate to meet these notice requirements. The notice of rights and
responsibilities may be distributed electronically so long as it
otherwise meets the requirements of this section.
(d) Designation notice. (1) The employer is responsible in all
circumstances for designating leave as FMLA-qualifying, and for giving
notice of the designation to the employee as provided in this section.
When the employer has enough information to determine whether the leave
is being taken for a FMLA-qualifying reason (e.g., after receiving a
certification), the employer must notify the employee whether the leave
will be designated and will be counted as FMLA leave within five
business days absent extenuating circumstances. Only one notice of
designation is required for each FMLA-qualifying reason per applicable
12-month period, regardless of whether the leave taken due to the
qualifying reason will be a continuous block of leave or intermittent
or reduced schedule leave. If the employer determines that the leave
will not be designated as FMLA-qualifying (e.g., if the leave is not
for a reason covered by FMLA or the FMLA leave entitlement has been
exhausted), the employer must notify the employee of that
determination. If the employer requires paid leave to be substituted
for unpaid FMLA leave, or that paid leave taken under an existing leave
plan be counted as FMLA leave, the employer must inform the employee of
this designation at the time of designating the FMLA leave.
(2) If the employer has sufficient information to designate the
leave as FMLA leave immediately after receiving notice of the
employee's need for leave, the employer may provide the employee with
the designation notice at that time.
(3) If the employer will require the employee to present a fitness-
for-duty certification to be restored to employment, the employer must
provide notice of such requirement with the designation notice. If the
employer will require that the fitness-for-duty certification address
the employee's ability to perform the essential functions of the
employee's position, the employer must so indicate in the designation
notice, and must include a list of the essential functions of the
employee's position. See Sec. 825.312. If the employer handbook or
other written documents (if any) describing the employer's leave
policies clearly provide that a fitness-for-duty certification will be
required in specific circumstances (e.g., by stating that fitness-for-
duty certification will be required in all cases of back injuries for
employees in a certain occupation), the employer is not required to
provide written notice of the requirement with the designation notice,
but must provide oral notice no later than with the designation notice.
(4) The designation notice must be in writing. A prototype
designation notice is contained in Appendix E of this part; the
prototype designation notice may be obtained from local offices of the
Wage and Hour Division or from the Internet at http://www.wagehour.dol.gov.
If the leave is not designated as FMLA leave because it does not meet
the requirements of the Act, the notice to the employee that the leave
is not designated as FMLA leave may be in the form of a simple
written statement.
(5) If the information provided by the employer to the employee in
the designation notice changes (e.g., the employee exhausts the FMLA
leave entitlement), the employer shall provide, within five business
days of receipt of the employee's first notice of need for leave
subsequent to any change, written notice of the change.
(6) The employer must notify the employee of the amount of leave
counted against the employee's FMLA leave entitlement. If the amount of
leave needed is known at the time the employer designates the leave as
FMLA-qualifying, the employer must notify the employee of the number of
hours, days, or weeks that will be counted against the employee's FMLA
leave entitlement in the designation notice. If it is not possible to
provide the hours, days, or weeks that will be counted against the
employee's FMLA leave entitlement (such as in the case of unforeseeable
intermittent leave), then the employer must provide notice of the
amount of leave counted against the employee's FMLA leave entitlement
upon the request by the employee, but no more often than once in a 30-
day period and only if leave was taken in that period. The notice of
the amount of leave counted against the employee's FMLA entitlement may
be oral or in writing. If such notice is oral, it shall be confirmed in
writing, no later than the following payday (unless the payday is less
than one week after the oral notice, in which case the notice must be
no later than the subsequent payday). Such written notice may be in any
form, including a notation on the employee's pay stub.
(e) Consequences of failing to provide notice. Failure to follow
the notice requirements set forth in this section may constitute an
interference with, restraint, or denial of the exercise of an
employee's FMLA rights. An employer may be liable for compensation and
benefits lost by reason of the violation, for other actual monetary
losses sustained as a direct result of the violation, and for
appropriate equitable or other relief, including employment,
reinstatement, promotion, or any other relief tailored to the harm
suffered (see Sec. 825.400(c)).
[73 FR 68096, Nov. 17, 2008]
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| Employer Designation of FMLA leave. 825.301
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| (a) Employer responsibilities. The employer's decision to designate
leave as FMLA-qualifying must be based only on information received from the
employee or the employee's spokesperson (e.g., if the employee is
incapacitated, the employee's spouse, adult child, parent, doctor, etc.,
may provide notice to the employer of the need to take FMLA leave).
In any circumstance where the employer does not have sufficient information
about the reason for an employee's use of leave, the employer should
inquire further of the employee or the spokesperson to ascertain whether
leave is potentially FMLA-qualifying. Once the employer has acquired
knowledge that the leave is being taken for a FMLA-qualifying reason,
the employer must notify the employee as provided in Sec. 825.300(d).
(b) Employee responsibilities. An employee giving notice of the
need for FMLA leave does not need to expressly assert rights under the
Act or even mention the FMLA to meet his or her obligation to provide
notice, though the employee would need to state a qualifying reason for
the needed leave and otherwise satisfy the notice requirements set
forth in Sec. 825.302 or Sec. 825.303 depending on whether the need
for leave is foreseeable or unforeseeable. An employee giving notice of
the need for FMLA leave must explain the reasons for the needed leave
so as to allow the employer to determine whether the leave qualifies
under the Act. If the employee fails to explain the reasons, leave may
be denied. In many cases, in explaining the reasons for a request to
use leave, especially when the need for the leave was unexpected or
unforeseen, an employee will provide sufficient information for the
employer to designate the leave as FMLA leave. An employee using
accrued paid leave may in some cases not spontaneously explain the
reasons or their plans for using their accrued leave. However, if an
employee requesting to use paid leave for a FMLA-qualifying reason does
not explain the reason for the leave and the employer denies the
employee's request, the employee will need to provide sufficient
information to establish a FMLA-qualifying reason for the needed leave
so that the employer is aware that the leave may not be denied and may
designate that the paid leave be appropriately counted against
(substituted for) the employee's FMLA leave entitlement. Similarly, an
employee using accrued paid vacation leave who seeks an extension of
unpaid leave for a FMLA-qualifying reason will need to state the
reason. If this is due to an event which occurred during the period of
paid leave, the employer may count the leave used after the FMLA-
qualifying reason against the employee's FMLA leave entitlement.
(c) Disputes. If there is a dispute between an employer and an
employee as to whether leave qualifies as FMLA leave, it should be
resolved through discussions between the employee and the employer.
Such discussions and the decision must be documented.
(d) Retroactive designation. If an employer does not designate
leave as required by Sec. 825.300, the employer may retroactively
designate leave as FMLA leave with appropriate notice to the employee
as required by Sec. 825.300 provided that the employer's failure to
timely designate leave does not cause harm or injury to the employee.
In all cases where leave would qualify for FMLA protections, an
employer and an employee can mutually agree that leave be retroactively
designated as FMLA leave.
(e) Remedies. If an employer's failure to timely designate leave in
accordance with Sec. 825.300 causes the employee to suffer harm, it
may constitute an interference with, restraint of, or denial of the
exercise of an employee's FMLA rights. An employer may be liable for
compensation and benefits lost by reason of the violation, for other
actual monetary losses sustained as a direct result of the violation,
and for appropriate equitable or other relief, including employment,
reinstatement, promotion, or any other relief tailored to the harm
suffered (see Sec. 825.400(c)). For example, if an employer that was
put on notice that an employee needed FMLA leave failed to designate
the leave properly, but the employee's own serious health condition
prevented him or her from returning to work during that time period
regardless of the designation, an employee may not be able to show that
the employee suffered harm as a result of the employer's actions.
However, if an employee took leave to provide care for a son or
daughter with a serious health condition believing it would not count
toward his or her FMLA entitlement, and the employee planned to later
use that FMLA leave to provide care for a spouse who would need
assistance when recovering from surgery planned for a later date, the
employee may be able to show that harm has occurred as a result of the
employer's failure to designate properly. The employee might establish
this by showing that he or she would have arranged for an alternative
caregiver for the seriously-ill son or daughter if the leave had been
designated timely.
[60 FR 2237, Jan. 6, 1995; 60 FR 16383, Mar. 30, 1995; 73 FR 68097, Nov. 17, 2008]
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| What notice does an employee have to give an employer when the need for FMLA leave is foreseeable? 825.302
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| (a) Timing of notice. An employee must provide the employer at
least 30 days advance notice before FMLA leave is to begin if the need
for the leave is foreseeable based on an expected birth, placement for
adoption or foster care, planned medical treatment for a serious health
condition of the employee or of a family member, or the planned medical
treatment for a serious injury or illness of a covered servicemember.
If 30 days notice is not practicable, such as because of a lack of
knowledge of approximately when leave will be required to begin, a
change in circumstances, or a medical emergency, notice must be given
as soon as practicable. For example, an employee's health condition may
require leave to commence earlier than anticipated before the birth of
a child. Similarly, little opportunity for notice may be given before
placement for adoption. For foreseeable leave due to a qualifying
exigency notice must be provided as soon as practicable, regardless of
how far in advance such leave is foreseeable. Whether FMLA leave is to
be continuous or is to be taken intermittently or on a reduced schedule
basis, notice need only be given one time, but the employee shall
advise the employer as soon as practicable if dates of scheduled leave
change or are extended, or were initially unknown. In those cases where
the employee is required to provide at least 30 days notice of
foreseeable leave and does not do so, the employee shall explain the
reasons why such notice was not practicable upon a request from the
employer for such information.
(b) As soon as practicable means as soon as both possible and
practical, taking into account all of the facts and circumstances in
the individual case. When an employee becomes aware of a need for FMLA
leave less than 30 days in advance, it should be practicable for the
employee to provide notice of the need for leave either the same day or
the next business day. In all cases, however, the determination of when
an employee could practicably provide notice must take into account the
individual facts and circumstances.
(c) Content of notice. An employee shall provide at least verbal
notice sufficient to make the employer aware that the employee needs
FMLA-qualifying leave, and the anticipated timing and duration of the
leave. Depending on the situation, such information may include that a
condition renders the employee unable to perform the functions of the
job; that the employee is pregnant or has been
[[Page 68099]]
hospitalized overnight; whether the employee or the employee's family
member is under the continuing care of a health care provider; if the
leave is due to a qualifying exigency, that a covered military member
is on active duty or call to active duty status, and that the requested
leave is for one of the reasons listed in Sec. 825.126(a); if the
leave is for a family member, that the condition renders the family
member unable to perform daily activities, or that the family member is
a covered servicemember with a serious injury or illness; and the
anticipated duration of the absence, if known. When an employee seeks
leave for the first time for a FMLA-qualifying reason, the employee
need not expressly assert rights under the FMLA or even mention the
FMLA. When an employee seeks leave due to a FMLA-qualifying reason, for
which the employer has previously provided FMLA-protected leave, the
employee must specifically reference the qualifying reason for leave or
the need for FMLA leave. In all cases, the employer should inquire
further of the employee if it is necessary to have more information
about whether FMLA leave is being sought by the employee, and obtain
the necessary details of the leave to be taken. In the case of medical
conditions, the employer may find it necessary to inquire further to
determine if the leave is because of a serious health condition and may
request medical certification to support the need for such leave (see
Sec. 825.305). An employer may also request certification to support
the need for leave for a qualifying exigency or for military caregiver
leave (see Sec. Sec. 825.309, 825.310). When an employee has been
previously certified for leave due to more than one FMLA-qualifying
reason, the employer may need to inquire further to determine for which
qualifying reason the leave is needed. An employee has an obligation to
respond to an employer's questions designed to determine whether an
absence is potentially FMLA-qualifying. Failure to respond to
reasonable employer inquiries regarding the leave request may result in
denial of FMLA protection if the employer is unable to determine
whether the leave is FMLA-qualifying.
(d) Complying with employer policy. An employer may require an
employee to comply with the employer's usual and customary notice and
procedural requirements for requesting leave, absent unusual
circumstances. For example, an employer may require that written notice
set forth the reasons for the requested leave, the anticipated duration
of the leave, and the anticipated start of the leave. An employee also
may be required by an employer's policy to contact a specific
individual. Unusual circumstances would include situations such as when
an employee is unable to comply with the employer's policy that
requests for leave should be made by contacting a specific number
because on the day the employee needs to provide notice of his or her
need for FMLA leave there is no one to answer the call-in number and
the voice mail box is full. Where an employee does not comply with the
employer's usual notice and procedural requirements, and no unusual
circumstances justify the failure to comply, FMLA-protected leave may
be delayed or denied. However, FMLA-protected leave may not be delayed
or denied where the employer's policy requires notice to be given
sooner than set forth in paragraph (a) of this section and the employee
provides timely notice as set forth in paragraph (a) of this section.
(e) Scheduling planned medical treatment. When planning medical
treatment, the employee must consult with the employer and make a
reasonable effort to schedule the treatment so as not to disrupt unduly
the employer's operations, subject to the approval of the health care
provider. Employees are ordinarily expected to consult with their
employers prior to the scheduling of treatment in order to work out a
treatment schedule which best suits the needs of both the employer and
the employee. For example, if an employee who provides notice of the
need to take FMLA leave on an intermittent basis for planned medical
treatment neglects to consult with the employer to make a reasonable
effort to arrange the schedule of treatments so as not to unduly
disrupt the employer's operations, the employer may initiate
discussions with the employee and require the employee to attempt to
make such arrangements, subject to the approval of the health care
provider. See Sec. Sec. 825.203 and 825.205.
(f) Intermittent leave or leave on a reduced leave schedule must be
medically necessary due to a serious health condition or a serious
injury or illness. An employee shall advise the employer, upon request,
of the reasons why the intermittent/reduced leave schedule is necessary
and of the schedule for treatment, if applicable. The employee and
employer shall attempt to work out a schedule for such leave that meets
the employee's needs without unduly disrupting the employer's
operations, subject to the approval of the health care provider.
(g) An employer may waive employees' FMLA notice requirements. See
Sec. 825.304.
[73 FR 68098, Nov. 17, 2008]
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| What are the requirements for an employee to furnish notice to an employer where the need for FMLA leave is not foreseeable? 825.303
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| (a) Timing of notice. When the approximate timing of the need for
leave is not foreseeable, an employee must provide notice to the
employer as soon as practicable under the facts and circumstances of
the particular case. It generally should be practicable for the
employee to provide notice of leave that is unforeseeable within the
time prescribed by the employer's usual and customary notice
requirements applicable to such leave. See Sec. 825.303(c). Notice may
be given by the employee's spokesperson (e.g., spouse, adult family
member, or other responsible party) if the employee is unable to do so
personally. For example, if an employee's child has a severe asthma
attack and the employee takes the child to the emergency room, the
employee would not be required to leave his or her child in order to
report the absence while the child is receiving emergency treatment.
However, if the child's asthma attack required only the use of an
inhaler at home followed by a period of rest, the employee would be
expected to call the employer promptly after ensuring the child has
used the inhaler.
(b) Content of notice. An employee shall provide sufficient
information for an employer to reasonably determine whether the FMLA
may apply to the leave request. Depending on the situation, such
information may include that a condition renders the employee unable to
perform the functions of the job; that the employee is pregnant or has
been hospitalized overnight; whether the employee or the employee's
family member is under the continuing care of a health care provider;
if the leave is due to a qualifying exigency, that a covered military
member is on active duty or call to active duty status, that the
requested leave is for one of the reasons listed in Sec. 825.126(a),
and the anticipated duration of the absence; or if the leave is for a
family member that the condition renders the family member unable to
perform daily activities or that the family member is a covered
servicemember with a serious injury or illness; and the anticipated
duration of the absence, if known. When an employee seeks leave for the
first time for a FMLA-qualifying reason, the employee need not
expressly assert rights under the FMLA or even mention the FMLA. When
an employee seeks leave due to a qualifying reason, for which the
employer has previously provided the employee FMLA-protected leave,
the employee must specifically reference either the qualifying
reason for leave or the need for FMLA leave. Calling in "sick"
without providing more information will not be considered sufficient
notice to trigger an employer's obligations under the Act. The employer
will be expected to obtain any additional required information through
informal means. An employee has an obligation to respond to an employer's
questions designed to determine whether an absence is potentially FMLA-
qualifying. Failure to respond to reasonable employer inquiries
regarding the leave request may result in denial of FMLA protection if
the employer is unable to determine whether the leave is FMLA-
qualifying.
(c) Complying with employer policy. When the need for leave is not
foreseeable, an employee must comply with the employer's usual and
customary notice and procedural requirements for requesting leave,
absent unusual circumstances. For example, an employer may require
employees to call a designated number or a specific individual to
request leave. However, if an employee requires emergency medical
treatment, he or she would not be required to follow the call-in
procedure until his or her condition is stabilized and he or she has
access to, and is able to use, a phone. Similarly, in the case of an
emergency requiring leave because of a FMLA-qualifying reason, written
advance notice pursuant to an employer's internal rules and procedures
may not be required when FMLA leave is involved. If an employee does
not comply with the employer's usual notice and procedural
requirements, and no unusual circumstances justify the failure to
comply, FMLA-protected leave may be delayed or denied.
[73 FR 68099, Nov. 17, 2008]
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| Employee failure to provide notice. 825.304
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| (a) Proper notice required. In all cases, in order for the onset of
an employee's FMLA leave to be delayed due to lack of required notice,
it must be clear that the employee had actual notice of the FMLA notice
requirements. This condition would be satisfied by the employer's
proper posting of the required notice at the worksite where the
employee is employed and the employer's provision of the required
notice in either an employee handbook or employee distribution, as
required by Sec. 825.300.
(b) Foreseeable leave--30 days. When the need for FMLA leave is
foreseeable at least 30 days in advance and an employee fails to give
timely advance notice with no reasonable excuse, the employer may delay
FMLA coverage until 30 days after the date the employee provides
notice. The need for leave and the approximate date leave would be
taken must have been clearly foreseeable to the employee 30 days in
advance of the leave. For example, knowledge that an employee would
receive a telephone call about the availability of a child for adoption
at some unknown point in the future would not be sufficient to
establish the leave was clearly foreseeable 30 days in advance.
(c) Foreseeable leave--less than 30 days. When the need for FMLA
leave is foreseeable fewer than 30 days in advance and an employee
fails to give notice as soon as practicable under the particular facts
and circumstances, the extent to which an employer may delay FMLA
coverage for leave depends on the facts of the particular case. For
example, if an employee reasonably should have given the employer two
weeks notice but instead only provided one week notice, then the
employer may delay FMLA-protected leave for one week (thus, if the
employer elects to delay FMLA coverage and the employee nonetheless
takes leave one week after providing the notice (i.e., a week before
the two week notice period has been met) the leave will not be FMLA-
protected).
(d) Unforeseeable leave. When the need for FMLA leave is
unforeseeable and an employee fails to give notice in accordance with
Sec. 825.303, the extent to which an employer may delay FMLA coverage
for leave depends on the facts of the particular case. For example, if
it would have been practicable for an employee to have given the
employer notice of the need for leave very soon after the need arises
consistent with the employer's policy, but instead the employee
provided notice two days after the leave began, then the employer may
delay FMLA coverage of the leave by two days.
(e) Waiver of notice. An employer may waive employees' FMLA notice
obligations or the employer's own internal rules on leave notice
requirements. If an employer does not waive the employee's obligations
under its internal leave rules, the employer may take appropriate
action under its internal rules and procedures for failure to follow
its usual and customary notification rules, absent unusual
circumstances, as long as the actions are taken in a manner that does
not discriminate against employees taking FMLA leave and the rules are
not inconsistent with Sec. 825.303(a).
[73 FR 68100, Nov. 17, 2008]
|
|
| When must an employee provide medical certification to support FMLA leave? 825.305
|
| (a) General. An employer may require that an employee's leave to
care for the employee's covered family member with a serious health
condition, or due to the employee's own serious health condition that
makes the employee unable to perform one or more of the essential
functions of the employee's position, be supported by a certification
issued by the health care provider of the employee or the employee's
family member. An employer may also require that an employee's leave
because of a qualifying exigency or to care for a covered servicemember
with a serious injury or illness be supported by a certification, as
described in Sec. Sec. 825.309 and 825.310, respectively. An employer
must give notice of a requirement for certification each time a
certification is required; such notice must be written notice whenever
required by Sec. 825.300(c). An employer's oral request to an employee
to furnish any subsequent certification is sufficient.
(b) Timing. In most cases, the employer should request that an
employee furnish certification at the time the employee gives notice of
the need for leave or within five business days thereafter, or, in the
case of unforeseen leave, within five business days after the leave
commences. The employer may request certification at some later date if
the employer later has reason to question the appropriateness of the
leave or its duration. The employee must provide the requested
certification to the employer within 15 calendar days after the
employer's request, unless it is not practicable under the particular
circumstances to do so despite the employee's diligent, good faith
efforts or the employer provides more than 15 calendar days to return
the requested certification.
(c) Complete and sufficient certification. The employee must
provide a complete and sufficient certification to the employer if
required by the employer in accordance with Sec. Sec. 825.306,
825.309, and 825.310. The employer shall advise an employee whenever
the employer finds a certification incomplete or insufficient, and
shall state in writing what additional information is necessary to make
the certification complete and sufficient. A certification is
considered incomplete if the employer receives a certification, but one
or more of the applicable entries have not been completed. A
certification is considered insufficient if the employer receives a
complete certification, but the information provided is vague,
ambiguous, or non-responsive. The employer must provide the employee
with seven calendar days (unless not practicable under the particular
circumstances despite the employee's diligent good faith efforts) to
cure any such deficiency. If the deficiencies specified by the employer
are not cured in the resubmitted certification, the employer may deny
the taking of FMLA leave, in accordance with Sec. 825.313. A certification
that is not returned to the employer is not considered incomplete or
insufficient, but constitutes a failure to provide certification.
(d) Consequences. At the time the employer requests certification,
the employer must also advise an employee of the anticipated
consequences of an employee's failure to provide adequate
certification. If the employee fails to provide the employer with a
complete and sufficient certification, despite the opportunity to cure
the certification as provided in paragraph (c) of this section, or
fails to provide any certification, the employer may deny the taking of
FMLA leave, in accordance with Sec. 825.313. It is the employee's
responsibility either to furnish a complete and sufficient
certification or to furnish the health care provider providing the
certification with any necessary authorization from the employee or the
employee's family member in order for the health care provider to
release a complete and sufficient certification to the employer to
support the employee's FMLA request. This provision will apply in any
case where an employer requests a certification permitted by these
regulations, whether it is the initial certification, a
recertification, a second or third opinion, or a fitness for duty
certificate, including any clarifications necessary to determine if
such certifications are authentic and sufficient. See Sec. Sec.
825.306, 825.307, 825.308, and 825.312.
(e) Annual medical certification. Where the employee's need for
leave due to the employee's own serious health condition, or the
serious health condition of the employee's covered family member, lasts
beyond a single leave year (as defined in Sec. 825.200), the employer
may require the employee to provide a new medical certification in each
subsequent leave year. Such new medical certifications are subject to
the provisions for authentication and clarification set forth in Sec.
825.307, including second and third opinions.
[73 FR 68100, Nov. 17, 2008]
|
|
| Content of medical certification for leave taken because of an employee’s own serious health condition or the serious health condition of a family member. 825.306
|
| a) Required information. When leave is taken because of an
employee's own serious health condition, or the serious health
condition of a family member, an employer may require an employee to
obtain a medical certification from a health care provider that sets
forth the following information:
(1) The name, address, telephone number, and fax number of the
health care provider and type of medical practice/specialization;
(2) The approximate date on which the serious health condition
commenced, and its probable duration;
(3) A statement or description of appropriate medical facts
regarding the patient's health condition for which FMLA leave is
requested. The medical facts must be sufficient to support the need for
leave. Such medical facts may include information on symptoms,
diagnosis, hospitalization, doctor visits, whether medication has been
prescribed, any referrals for evaluation or treatment (physical
therapy, for example), or any other regimen of continuing treatment;
(4) If the employee is the patient, information sufficient to
establish that the employee cannot perform the essential functions of
the employee's job as well as the nature of any other work
restrictions, and the likely duration of such inability (see Sec.
825.123(b) and (c));
(5) If the patient is a covered family member with a serious health
condition, information sufficient to establish that the family member
is in need of care, as described in Sec. 825.124, and an estimate of
the frequency and duration of the leave required to care for the family
member;
(6) If an employee requests leave on an intermittent or reduced
schedule basis for planned medical treatment of the employee's or a
covered family member's serious health condition, information
sufficient to establish the medical necessity for such intermittent or
reduced schedule leave and an estimate of the dates and duration of
such treatments and any periods of recovery;
(7) If an employee requests leave on an intermittent or reduced
schedule basis for the employee's serious health condition, including
pregnancy, that may result in unforeseeable episodes of incapacity,
information sufficient to establish the medical necessity for such
intermittent or reduced schedule leave and an estimate of the frequency
and duration of the episodes of incapacity; and
(8) If an employee requests leave on an intermittent or reduced
schedule basis to care for a covered family member with a serious
health condition, a statement that such leave is medically necessary to
care for the family member, as described in Sec. Sec. 825.124 and
825.203(b), which can include assisting in the family member's
recovery, and an estimate of the frequency and duration of the required
leave.
(b) DOL has developed two optional forms (Form WH-380E and Form WH-
380F, as revised) for use in obtaining medical certification, including
second and third opinions, from health care providers that meets FMLA's
certification requirements. (See Appendix B to this Part 825.) Optional
form WH-380E is for use when the employee's need for leave is due to
the employee's own serious health condition. Optional form WH-380F is
for use when the employee needs leave to care for a family member with
a serious health condition. These optional forms reflect certification
requirements so as to permit the health care provider to furnish
appropriate medical information. Form WH-380E and WH-380F, as revised,
or another form containing the same basic information, may be used by
the employer; however, no information may be required beyond that
specified in Sec. Sec. 825.306, 825.307, and 825.308. In all instances
the information on the form must relate only to the serious health
condition for which the current need for leave exists.
(c) If an employee is on FMLA leave running concurrently with a
workers' compensation absence, and the provisions of the workers'
compensation statute permit the employer or the employer's
representative to request additional information from the employee's
workers' compensation health care provider, the FMLA does not prevent
the employer from following the workers' compensation provisions and
information received under those provisions may be considered in
determining the employee's entitlement to FMLA-protected leave.
Similarly, an employer may request additional information in accordance
with a paid leave policy or disability plan that requires greater
information to qualify for payments or benefits, provided that the
employer informs the employee that the additional information only
needs to be provided in connection with receipt of such payments or
benefits. Any information received pursuant to such policy or plan may
be considered in determining the employee's entitlement to FMLA-
protected leave. If the employee fails to provide the information
required for receipt of such payments or benefits, such failure
will not affect the employee's entitlement to take unpaid FMLA
leave. See Sec. 825.207(a).
(d) If an employee's serious health condition may also be a
disability within the meaning of the Americans with Disabilities Act
(ADA), as amended, the FMLA does not prevent the employer from
following the procedures for requesting medical information under the
ADA. Any information received pursuant to these procedures may be
considered in determining the employee's entitlement to FMLA-protected
leave.
(e) While an employee may choose to comply with the certification
requirement by providing the employer with an authorization, release,
or waiver allowing the employer to communicate directly with the health
care provider of the employee or his or her covered family member, the
employee may not be required to provide such an authorization, release,
or waiver. In all instances in which certification is requested, it is
the employee's responsibility to provide the employer with complete and
sufficient certification and failure to do so may result in the denial
of FMLA leave. See Sec. 825.305(d).
[73 FR 68101, Nov. 17, 2008]
|
|
| What may an employer do if it questions the adequacy of a medical certification? 825.307
|
| (a) Clarification and authentication. If an employee submits a
complete and sufficient certification signed by the health care
provider, the employer may not request additional information from the
health care provider. However, the employer may contact the health care
provider for purposes of clarification and authentication of the
medical certification (whether initial certification or
recertification) after the employer has given the employee an
opportunity to cure any deficiencies as set forth in Sec. 825.305(c).
To make such contact, the employer must use a health care provider, a
human resources professional, a leave administrator, or a management
official. Under no circumstances, however, may the employee's direct
supervisor contact the employee's health care provider. For purposes of
these regulations, "authentication" means providing the health care
provider with a copy of the certification and requesting verification
that the information contained on the certification form was completed
and/or authorized by the health care provider who signed the document;
no additional medical information may be requested. "Clarification"
means contacting the health care provider to understand the handwriting
on the medical certification or to understand the meaning of a
response. Employers may not ask health care providers for additional
information beyond that required by the certification form. The
requirements of the Health Insurance Portability and Accountability Act
("HIPAA") Privacy Rule (see 45 CFR parts 160 and 164), which governs
the privacy of individually-identifiable health information created or
held by HIPAA-covered entities, must be satisfied when individually-
identifiable health information of an employee is shared with an
employer by a HIPAA-covered health care provider. If an employee
chooses not to provide the employer with authorization allowing the
employer to clarify the certification with the health care provider,
and does not otherwise clarify the certification, the employer may deny
the taking of FMLA leave if the certification is unclear. See Sec.
825.305(d). It is the employee's responsibility to provide the employer
with a complete and sufficient certification and to clarify the
certification if necessary.
(b) Second opinion. (1) An employer who has reason to doubt the
validity of a medical certification may require the employee to obtain
a second opinion at the employer's expense. Pending receipt of the
second (or third) medical opinion, the employee is provisionally
entitled to the benefits of the Act, including maintenance of group
health benefits. If the certifications do not ultimately establish the
employee's entitlement to FMLA leave, the leave shall not be designated
as FMLA leave and may be treated as paid or unpaid leave under the
employer's established leave policies. In addition, the consequences
set forth in Sec. 825.305(d) will apply if the employee or the
employee's family member fails to authorize his or her health care
provider to release all relevant medical information pertaining to the
serious health condition at issue if requested by the health care
provider designated to provide a second opinion in order to render a
sufficient and complete second opinion.
(2) The employer is permitted to designate the health care provider
to furnish the second opinion, but the selected health care provider
may not be employed on a regular basis by the employer. The employer
may not regularly contract with or otherwise regularly utilize the
services of the health care provider furnishing the second opinion
unless the employer is located in an area where access to health care
is extremely limited (e.g., a rural area where no more than one or two
doctors practice in the relevant specialty in the vicinity).
(c) Third opinion. If the opinions of the employee's and the
employer's designated health care providers differ, the employer may
require the employee to obtain certification from a third health care
provider, again at the employer's expense. This third opinion shall be
final and binding. The third health care provider must be designated or
approved jointly by the employer and the employee. The employer and the
employee must each act in good faith to attempt to reach agreement on
whom to select for the third opinion provider. If the employer does not
attempt in good faith to reach agreement, the employer will be bound by
the first certification. If the employee does not attempt in good faith
to reach agreement, the employee will be bound by the second
certification. For example, an employee who refuses to agree to see a
doctor in the specialty in question may be failing to act in good
faith. On the other hand, an employer that refuses to agree to any
doctor on a list of specialists in the appropriate field provided by
the employee and whom the employee has not previously consulted may be
failing to act in good faith. In addition, the consequences set forth
in Sec. 825.305(d) will apply if the employee or the employee's family
member fails to authorize his or her health care provider to release
all relevant medical information pertaining to the serious health
condition at issue if requested by the health care provider designated
to provide a third opinion in order to render a sufficient and complete
third opinion.
(d) Copies of opinions. The employer is required to provide the
employee with a copy of the second and third medical opinions, where
applicable, upon request by the employee. Requested copies are to be
provided within five business days unless extenuating circumstances
prevent such action.
(e) Travel expenses. If the employer requires the employee to
obtain either a second or third opinion the employer must reimburse an
employee or family member for any reasonable "out of pocket" travel
expenses incurred to obtain the second and third medical opinions. The
employer may not require the employee or family member to travel
outside normal commuting distance for purposes of obtaining the second
or third medical opinions except in very unusual circumstances.
(f) Medical certification abroad. In circumstances in which the
employee or a family member is visiting in another country, or a family
member resides in another country, and a serious health condition develops,
the employer shall accept a medical certification as well as second and
third opinions from a health care provider who practices in that
country. Where a certification by a foreign health care provider is in
a language other than English, the employee must provide the employer
with a written translation of the certification upon request.
[60 FR 2237, Jan. 6, 1995; 60 FR 16383, Mar. 30, 1995; 73 FR 68102, Nov. 17, 2008]
|
|
| Recertifications for leave taken because of an employee’s own serious health condition or the serious health condition of a family member. 825.308
|
| (a) 30-day rule. An employer may request recertification no more
often than every 30 days and only in connection with an absence by the
employee, unless paragraphs (b) or (c) of this section apply.
(b) More than 30 days. If the medical certification indicates that
the minimum duration of the condition is more than 30 days, an employer
must wait until that minimum duration expires before requesting a
recertification, unless paragraph (c) of this section applies. For
example, if the medical certification states that an employee will be
unable to work, whether continuously or on an intermittent basis, for
40 days, the employer must wait 40 days before requesting a
recertification. In all cases, an employer may request a
recertification of a medical condition every six months in connection
with an absence by the employee. Accordingly, even if the medical
certification indicates that the employee will need intermittent or
reduced schedule leave for a period in excess of six months (e.g., for
a lifetime condition), the employer would be permitted to request
recertification every six months in connection with an absence.
(c) Less than 30 days. An employer may request recertification in
less than 30 days if:
(1) The employee requests an extension of leave;
(2) Circumstances described by the previous certification have
changed significantly (e.g., the duration or frequency of the absence,
the nature or severity of the illness, complications). For example, if
a medical certification stated that an employee would need leave for
one to two days when the employee suffered a migraine headache and the
employee's absences for his or her last two migraines lasted four days
each, then the increased duration of absence might constitute a
significant change in circumstances allowing the employer to request a
recertification in less than 30 days. Likewise, if an employee had a
pattern of using unscheduled FMLA leave for migraines in conjunction
with his or her scheduled days off, then the timing of the absences
also might constitute a significant change in circumstances sufficient
for an employer to request a recertification more frequently than every
30 days; or
(3) The employer receives information that casts doubt upon the
employee's stated reason for the absence or the continuing validity of
the certification. For example, if an employee is on FMLA leave for
four weeks due to the employee's knee surgery, including recuperation,
and the employee plays in company softball league games during the
employee's third week of FMLA leave, such information might be
sufficient to cast doubt upon the continuing validity of the
certification allowing the employer to request a recertification in
less than 30 days.
(d) Timing. The employee must provide the requested recertification
to the employer within the timeframe requested by the employer (which
must allow at least 15 calendar days after the employer's request),
unless it is not practicable under the particular circumstances to do
so despite the employee's diligent, good faith efforts.
(e) Content. The employer may ask for the same information when
obtaining recertification as that permitted for the original
certification as set forth in Sec. 825.306. The employee has the same
obligations to participate and cooperate (including providing a
complete and sufficient certification or adequate authorization to the
health care provider) in the recertification process as in the initial
certification process. See Sec. 825.305(d). As part of the information
allowed to be obtained on recertification for leave taken because of a
serious health condition, the employer may provide the health care
provider with a record of the employee's absence pattern and ask the
health care provider if the serious health condition and need for leave
is consistent with such a pattern.
(f) Any recertification requested by the employer shall be at the
employee's expense unless the employer provides otherwise. No second or
third opinion on recertification may be required.
[73 FR 68103, Nov. 17, 2008]
|
|
| Certification for leave taken because of a qualifying exigency. 825.309
|
| (a) Active Duty Orders. The first time an employee requests leave
because of a qualifying exigency arising out of the active duty or call
to active duty status of a covered military member (as defined in Sec.
825.126(b)(2)), an employer may require the employee to provide a copy
of the covered military member's active duty orders or other
documentation issued by the military which indicates that the covered
military member is on active duty or call to active duty status in
support of a contingency operation, and the dates of the covered
military member's active duty service. This information need only be
provided to the employer once. A copy of new active duty orders or
other documentation issued by the military shall be provided to the
employer if the need for leave because of a qualifying exigency arises
out of a different active duty or call to active duty status of the
same or a different covered military member;
(b) Required information. An employer may require that leave for
any qualifying exigency specified in Sec. 825.126 be supported by a
certification from the employee that sets forth the following
information:
(1) A statement or description, signed by the employee, of
appropriate facts regarding the qualifying exigency for which FMLA
leave is requested. The facts must be sufficient to support the need
for leave. Such facts should include information on the type of
qualifying exigency for which leave is requested and any available
written documentation which supports the request for leave; such
documentation, for example, may include a copy of a meeting
announcement for informational briefings sponsored by the military, a
document confirming an appointment with a counselor or school official,
or a copy of a bill for services for the handling of legal or financial
affairs;
(2) The approximate date on which the qualifying exigency commenced
or will commence;
(3) If an employee requests leave because of a qualifying exigency
for a single, continuous period of time, the beginning and end dates
for such absence;
(4) If an employee requests leave because of a qualifying exigency
on an intermittent or reduced schedule basis, an estimate of the
frequency and duration of the qualifying exigency; and
(5) If the qualifying exigency involves meeting with a third party,
appropriate contact information for the individual or entity with whom
the employee is meeting (such as the name, title, organization,
address, telephone number, fax number, and e-mail address) and a brief
description of the purpose of the meeting.
(c) DOL has developed an optional form (Form WH-384) for employees'
use in obtaining a certification that meets FMLA's certification requirements.
(See Appendix G to this Part 825.) This optional form reflects certification
requirements so as to permit the employee to furnish appropriate information
to support his or her request for leave because of a qualifying exigency.
Form WH-384, or another form containing the same basic information, may
be used by the employer; however, no information may be required beyond
that specified in this section.
(d) Verification. If an employee submits a complete and sufficient
certification to support his or her request for leave because of a
qualifying exigency, the employer may not request additional
information from the employee. However, if the qualifying exigency
involves meeting with a third party, the employer may contact the
individual or entity with whom the employee is meeting for purposes of
verifying a meeting or appointment schedule and the nature of the
meeting between the employee and the specified individual or entity.
The employee's permission is not required in order to verify meetings
or appointments with third parties, but no additional information may
be requested by the employer. An employer also may contact an
appropriate unit of the Department of Defense to request verification
that a covered military member is on active duty or call to active duty
status; no additional information may be requested and the employee's
permission is not required.
[73 FR 68103, Nov. 17, 2008]
|
|
| Intent to return to work. 825.311
|
| (a) An employer may require an employee on FMLA leave to report
periodically on the employee's status and intent to return to work. The
employer's policy regarding such reports may not be discriminatory and
must take into account all of the relevant facts and circumstances
related to the individual employee's leave situation.
(b) If an employee gives unequivocal notice of intent not to return
to work, the employer's obligations under FMLA to maintain health
benefits (subject to COBRA requirements) and to restore the employee
cease. However, these obligations continue if an employee indicates he
or she may be unable to return to work but expresses a continuing
desire to do so.
(c) It may be necessary for an employee to take more leave than
originally anticipated. Conversely, an employee may discover after
beginning leave that the circumstances have changed and the amount of
leave originally anticipated is no longer necessary. An employee may
not be required to take more FMLA leave than necessary to resolve the
circumstance that precipitated the need for leave. In both of these
situations, the employer may require that the employee provide the
employer reasonable notice (i.e., within two business days) of the
changed circumstances where foreseeable. The employer may also obtain
information on such changed circumstances through requested status
reports.
[73 FR 68105, Nov. 17, 2008]
|
|
| None 825.314
|
| None
|
|
| Certification for leave taken to care for a covered servicemember (military caregiver leave). 825.310
|
| a) Required information from health care provider. When leave is
taken to care for a covered servicemember with a serious injury or
illness, an employer may require an employee to obtain a certification
completed by an authorized health care provider of the covered
servicemember. For purposes of leave taken to care for a covered
servicemember, any one of the following health care providers may
complete such a certification:
(1) A United States Department of Defense ("DOD") health care
provider;
(2) A United States Department of Veterans Affairs ("VA") health
care provider;
(3) A DOD TRICARE network authorized private health care provider;
or
(4) A DOD non-network TRICARE authorized private health care
provider.
(b) If the authorized health care provider is unable to make
certain military-related determinations outlined below, the authorized
health care provider may rely on determinations from an authorized DOD
representative (such as a DOD recovery care coordinator). An employer
may request that the health care provider provide the following
information:
(1) The name, address, and appropriate contact information
(telephone number, fax number, and/or email address) of the health care
provider, the type of medical practice, the medical specialty, and
whether the health care provider is one of the following:
(i) A DOD health care provider;
(ii) A VA health care provider;
(iii) A DOD TRICARE network authorized private health care
provider; or
(iv) A DOD non-network TRICARE authorized private health care
provider.
(2) Whether the covered servicemember's injury or illness was
incurred in the line of duty on active duty;
(3) The approximate date on which the serious injury or illness
commenced, and its probable duration;
(4) A statement or description of appropriate medical facts
regarding the covered servicemember's health condition for which FMLA
leave is requested. The medical facts must be sufficient to support the
need for leave. Such medical facts must include information on whether
the injury or illness may render the covered servicemember medically
unfit to perform the duties of the servicemember's office, grade, rank,
or rating and whether the member is receiving medical treatment,
recuperation, or therapy;
(5) Information sufficient to establish that the covered
servicemember is in need of care, as described in Sec. 825.124, and
whether the covered servicemember will need care for a single
continuous period of time, including any time for treatment and
recovery, and an estimate as to the beginning and ending dates for this
period of time;
(6) If an employee requests leave on an intermittent or reduced
schedule basis for planned medical treatment appointments for the
covered servicemember, whether there is a medical necessity for the
covered servicemember to have such periodic care and an estimate of the
treatment schedule of such appointments;
(7) If an employee requests leave on an intermittent or reduced
schedule basis to care for a covered servicemember other than for
planned medical treatment (e.g., episodic flare-ups of a medical
condition), whether there is a medical necessity for the covered
servicemember to have such periodic care, which can include assisting
in the covered servicemember's recovery, and an estimate of the
frequency and duration of the periodic care.
(c) Required information from employee and/or covered
servicemember. In addition to the information that may be requested
under Sec. 825.310(b), an employer may also request that such
certification set forth the following information provided by an
employee and/or covered servicemember:
(1) The name and address of the employer of the employee requesting
leave to care for a covered servicemember, the name of the employee
requesting such leave, and the name of the covered servicemember for
whom the employee is requesting leave to care;
(2) The relationship of the employee to the covered servicemember
for whom the employee is requesting leave to care;
(3) Whether the covered servicemember is a current member of the
Armed Forces, the National Guard or Reserves, and the covered
servicemember's military branch, rank, and current unit assignment;
(4) Whether the covered servicemember is assigned to a military
medical facility as an outpatient or to a unit established for the
purpose of providing command and control of members of the Armed Forces
receiving medical care as outpatients (such as a medical hold or
warrior transition unit), and the name of the medical treatment
facility or unit;
(5) Whether the covered servicemember is on the temporary
disability retired list;
(6) A description of the care to be provided to the covered
servicemember and an estimate of the leave needed to provide the care.
(d) DOL has developed an optional form (WH-385) for employees' use
in obtaining certification that meets FMLA's certification
requirements. (See Appendix H to this Part 825.) This optional form
reflects certification requirements so as to permit the employee to
furnish appropriate information to support his or her request for leave
to care for a covered servicemember with a serious injury or illness.
WH-385, or another form containing the same basic information, may be
used by the employer; however, no information may be required beyond
that specified in this section. In all instances the information on the
certification must relate only to the serious injury or illness for
which the current need for leave exists. An employer may seek authentication
and/or clarification of the certification under Sec. 825.307. However,
second and third opinions under Sec. 825.307 are not permitted for leave
to care for a covered servicemember. Additionally, recertifications
under Sec. 825.308 are not permitted for leave to care for a covered
servicemember. An employer may require an employee to provide confirmation
of covered family relationship to the seriously injured or ill servicemember
pursuant to Sec. 825.122(j) of the FMLA.
(e) An employer requiring an employee to submit a certification for
leave to care for a covered servicemember must accept as sufficient
certification, in lieu of the Department's optional certification form
(WH-385) or an employer's own certification form, "invitational travel
orders" ("ITOs") or "invitational travel authorizations"
("ITAs") issued to any family member to join an injured or ill
servicemember at his or her bedside. An ITO or ITA is sufficient
certification for the duration of time specified in the ITO or ITA.
During that time period, an eligible employee may take leave to care
for the covered servicemember in a continuous block of time or on an
intermittent basis. An eligible employee who provides an ITO or ITA to
support his or her request for leave may not be required to provide any
additional or separate certification that leave taken on an
intermittent basis during the period of time specified in the ITO or
ITA is medically necessary. An ITO or ITA is sufficient certification
for an employee entitled to take FMLA leave to care for a covered
servicemember regardless of whether the employee is named in the order
or authorization.
(1) If an employee will need leave to care for a covered
servicemember beyond the expiration date specified in an ITO or ITA, an
employer may request that the employee have one of the authorized
health care providers listed under Sec. 825.310(a) complete the DOL
optional certification form (WH-385) or an employer's own form, as
requisite certification for the remainder of the employee's necessary
leave period.
(2) An employer may seek authentication and clarification of the
ITO or ITA under Sec. 825.307. An employer may not utilize the second
or third opinion process outlined in Sec. 825.307 or the
recertification process under Sec. 825.308 during the period of time
in which leave is supported by an ITO or ITA.
(3) An employer may require an employee to provide confirmation of
covered family relationship to the seriously injured or ill
servicemember pursuant to Sec. 825.122(j) when an employee supports
his or her request for FMLA leave with a copy of an ITO or ITA.
(f) In all instances in which certification is requested, it is the
employee's responsibility to provide the employer with complete and
sufficient certification and failure to do so may result in the denial
of FMLA leave. See Sec. 825.305(d).
[60 FR 2237, Jan. 6, 1995; 60 FR 16383, Mar. 30, 1995; 73 FR 68104, Nov. 17, 2008]
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| Fitness-for-duty certification. 825.312
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| (a) As a condition of restoring an employee whose FMLA leave was
occasioned by the employee's own serious health condition that made the
employee unable to perform the employee's job, an employer may have a
uniformly-applied policy or practice that requires all similarly-
situated employees (i.e., same occupation, same serious health
condition) who take leave for such conditions to obtain and present
certification from the employee's health care provider that the
employee is able to resume work. The employee has the same obligations
to participate and cooperate (including providing a complete and
sufficient certification or providing sufficient authorization to the
health care provider to provide the information directly to the
employer) in the fitness-for-duty certification process as in the
initial certification process. See Sec. 825.305(d).
(b) An employer may seek a fitness-for-duty certification only with
regard to the particular health condition that caused the employee's
need for FMLA leave. The certification from the employee's health care
provider must certify that the employee is able to resume work.
Additionally, an employer may require that the certification
specifically address the employee's ability to perform the essential
functions of the employee's job. In order to require such a
certification, an employer must provide an employee with a list of the
essential functions of the employee's job no later than with the
designation notice required by Sec. 825.300(d), and must indicate in
the designation notice that the certification must address the
employee's ability to perform those essential functions. If the
employer satisfies these requirements, the employee's health care
provider must certify that the employee can perform the identified
essential functions of his or her job. Following the procedures set
forth in Sec. 825.307(a), the employer may contact the employee's
health care provider for purposes of clarifying and authenticating the
fitness-for-duty certification. Clarification may be requested only for
the serious health condition for which FMLA leave was taken. The
employer may not delay the employee's return to work while contact with
the health care provider is being made. No second or third opinions on
a fitness-for-duty certification may be required.
(c) The cost of the certification shall be borne by the employee,
and the employee is not entitled to be paid for the time or travel
costs spent in acquiring the certification.
(d) The designation notice required in Sec. 825.300(d) shall
advise the employee if the employer will require a fitness-for-duty
certification to return to work and whether that fitness-for-duty
certification must address the employee's ability to perform the
essential functions of the employee's job.
(e) An employer may delay restoration to employment until an
employee submits a required fitness-for-duty certification unless the
employer has failed to provide the notice required in paragraph (d) of
this section. If an employer provides the notice required,
an employee who does not provide a fitness-for-duty certification or
request additional FMLA leave is no longer entitled to reinstatement
under the FMLA. See Sec. 825.313(d).
(f) An employer is not entitled to a certification of fitness to
return to duty for each absence taken on an intermittent or reduced
leave schedule. However, an employer is entitled to a certification of
fitness to return to duty for such absences up to once every 30 days if
reasonable safety concerns exist regarding the employee's ability to
perform his or her duties, based on the serious health condition for
which the employee took such leave. If an employer chooses to require a
fitness-for-duty certification under such circumstances, the employer
shall inform the employee at the same time it issues the designation
notice that for each subsequent instance of intermittent or reduced
schedule leave, the employee will be required to submit a fitness-for-
duty certification unless one has already been submitted within the
past 30 days. Alternatively, an employer can set a different interval
for requiring a fitness-for-duty certification as long as it does not
exceed once every 30 days and as long as the employer advises the
employee of the requirement in advance of the employee taking the
intermittent or reduced schedule leave. The employer may not terminate
the employment of the employee while awaiting such a certification of
fitness to return to duty for an intermittent or reduced schedule leave
absence. Reasonable safety concerns means a reasonable belief of
significant risk of harm to the individual employee or others. In
determining whether reasonable safety concerns exist, an employer
should consider the nature and severity of the potential harm and the
likelihood that potential harm will occur.
(g) If State or local law or the terms of a collective bargaining
agreement govern an employee's return to work, those provisions shall
be applied.
(h) Requirements under the Americans with Disabilities Act (ADA),
as amended, apply. After an employee returns from FMLA leave, the ADA
requires any medical examination at an employer's expense by the
employer's health care provider be job-related and consistent with
business necessity. For example, an attorney could not be required to
submit to a medical examination or inquiry just because her leg had
been amputated. The essential functions of an attorney's job do not
require use of both legs; therefore such an inquiry would not be job
related. An employer may require a warehouse laborer, whose back
impairment affects the ability to lift, to be examined by an
orthopedist, but may not require this employee to submit to an HIV test
where the test is not related to either the essential functions of his
or her job or to his/her impairment. If an employee's serious health
condition may also be a disability within the meaning of the ADA, the
FMLA does not prevent the employer from following the procedures for
requesting medical information under the ADA.
[60 FR 2237, Jan. 6, 1995; 60 FR 16383, Mar. 30, 1995; 73 FR 68105, Nov. 17, 2008]
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| Failure to provide certification. 825.313
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| (a) Foreseeable leave. In the case of foreseeable leave, if an
employee fails to provide certification in a timely manner as required
by Sec. 825.305, then an employer may deny FMLA coverage until the
required certification is provided. For example, if an employee has 15
days to provide a certification and does not provide the certification
for 45 days without sufficient reason for the delay, the employer can
deny FMLA protections for the 30-day period following the expiration of
the 15-day time period, if the employee takes leave during such period.
(b) Unforeseeable leave. In the case of unforeseeable leave, an
employer may deny FMLA coverage for the requested leave if the employee
fails to provide a certification within 15 calendar days from receipt
of the request for certification unless not practicable due to
extenuating circumstances. For example, in the case of a medical
emergency, it may not be practicable for an employee to provide the
required certification within 15 calendar days. Absent such extenuating
circumstances, if the employee fails to timely return the
certification, the employer can deny FMLA protections for the leave
following the expiration of the 15-day time period until a sufficient
certification is provided. If the employee never produces the
certification, the leave is not FMLA leave.
(c) Recertification. An employee must provide recertification
within the time requested by the employer (which must allow at least 15
calendar days after the request) or as soon as practicable under the
particular facts and circumstances. If an employee fails to provide a
recertification within a reasonable time under the particular facts and
circumstances, then the employer may deny continuation of the FMLA
leave protections until the employee produces a sufficient
recertification. If the employee never produces the recertification,
the leave is not FMLA leave. Recertification does not apply to leave
taken for a qualifying exigency or to care for a covered servicemember.
(d) Fitness-for-duty certification. When requested by the employer
pursuant to a uniformly applied policy for similarly-situated
employees, the employee must provide medical certification, at the time
the employee seeks reinstatement at the end of FMLA leave taken for the
employee's serious health condition, that the employee is fit for duty
and able to return to work (see Sec. 825.312(a)) if the employer has
provided the required notice (see Sec. 825.300(e)); the employer may
delay restoration until the certification is provided. Unless the
employee provides either a fitness-for-duty certification or a new
medical certification for a serious health condition at the time FMLA
leave is concluded, the employee may be terminated. See also Sec.
825.213(a)(3).
[73 FR 68106, Nov. 17, 2008]
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