FMLA Employer Responsibilities & Documentation 2 — Questions and Answers
Question 1: An employer has 45 employees at headquarters and 15 at a satellite office. Which employees must receive FMLA leave?
- All employees, because the combined workforce exceeds 50 (Correct answer)
- Only headquarters employees, since that site has 45 employees
- No employees because each location is evaluated independently
- Only employees who have worked there at least 12 months
Correct answer: All employees, because the combined workforce exceeds 50
FMLA employer coverage is determined by counting all employees on the payroll. An employer with 50 or more total employees is a covered employer. Individual employee eligibility requires working at a site with 50 or more employees within 75 miles.
Under 29 CFR 825.104, an employer is covered by FMLA if it employs 50 or more employees in total across all locations. However, an individual employee is eligible only if they work at a worksite where the employer employs 50 or more employees within 75 miles of that worksite per 29 CFR 825.110(a)(3).
Question 2: Which employee is NOT eligible for FMLA leave?
- An employee who worked 1,400 hours over the past 12 months
- An employee who has worked for the employer for 13 months
- An employee who works at a site with 60 employees within 75 miles
- An employee at a site with only 40 employees within 75 miles of any employer worksite (Correct answer)
Correct answer: An employee at a site with only 40 employees within 75 miles of any employer worksite
FMLA eligibility requires working at a worksite where the employer employs 50 or more employees within 75 miles. An employee at a site where fewer than 50 employees work within 75 miles does not meet this threshold.
The three FMLA eligibility criteria are: (1) worked for the employer for at least 12 months; (2) worked at least 1,250 hours during the previous 12-month period; and (3) works at a location where the employer employs 50 or more employees within 75 miles. An employee at a site with only 40 employees within 75 miles fails the third criterion.
Question 3: An employer uses the rolling backward method to calculate the FMLA leave year. An employee took 10 weeks of FMLA leave ending 8 months ago. How much FMLA leave remains?
- 12 weeks
- 2 weeks (Correct answer)
- 10 weeks
- 0 weeks
Correct answer: 2 weeks
Under the rolling backward method, the employer looks back 12 months from the current date. Since 10 weeks were taken within that 12-month window, only 2 weeks remain.
29 CFR 825.200(b) allows four methods for calculating the FMLA 12-month period. Under the rolling backward method, the employer adds up all FMLA leave taken in the 12 months preceding the current request and subtracts from 12 weeks to determine remaining entitlement. With 10 weeks used in the past 12 months, 2 weeks remain.
Question 4: What must an employer include in the FMLA designation notice (WH-382)?
- The employee's diagnosis
- Whether the leave is approved and how much will be counted against the FMLA entitlement (Correct answer)
- The employee's remaining PTO balance
- A list of essential job functions
Correct answer: Whether the leave is approved and how much will be counted against the FMLA entitlement
The designation notice must inform the employee whether their leave has been designated as FMLA leave and, if applicable, how much leave will be charged against the FMLA entitlement.
Per 29 CFR 825.300(d), the designation notice (WH-382) must include: (1) whether the leave is designated as FMLA leave; (2) if the leave is unpaid, the amount being charged to FMLA entitlement; (3) any fitness-for-duty requirements upon return; and (4) key employee status if applicable. The employer may not include the employee's diagnosis in the designation notice.
Question 5: An employer discovers that an employee's recent absence qualifies for FMLA but the employee never mentioned FMLA and the employer did not designate it. What should the employer do?
- Nothing, the designation window has passed
- Issue a retroactive FMLA designation as soon as possible (Correct answer)
- Require the employee to file a new FMLA request
- Notify the DOL of the oversight
Correct answer: Issue a retroactive FMLA designation as soon as possible
The DOL permits retroactive designation of FMLA leave when the employer discovers qualifying leave was not designated, preventing the employer from later claiming non-FMLA leave counted against the entitlement.
29 CFR 825.301(d) generally requires prospective designation, but DOL guidance and court decisions permit retroactive designation when the employer failed to designate qualifying leave and the employee was not prejudiced by the delay. Retroactive designation protects both parties. Administrators should document the retroactive designation promptly.
Question 6: An employee who is a key employee under FMLA must be notified of their status at what point?
- During annual performance reviews
- At the time the employee gives notice of the need for FMLA leave (Correct answer)
- Only if the employer plans to deny reinstatement
- At the start of each calendar year
Correct answer: At the time the employee gives notice of the need for FMLA leave
The employer must notify the key employee of their status and potential consequences at the time the employee gives notice of the need for FMLA leave, not after the leave begins or ends.
29 CFR 825.219(a) requires the employer to notify the key employee of their key employee status and the potential denial of reinstatement as soon as the employer decides it may deny restoration. If the employer fails to provide timely notification, it loses the right to deny reinstatement under the key employee exception. Notification must be in writing.
FMLA Employer Responsibilities & Documentation 2
An employer has 45 employees at headquarters and 15 at a satellite office.
Which employees must receive FMLA leave?