FMLA FMLA Notice Requirements & Employee Obligations 2 — Questions and Answers
Question 1: An employee is scheduled for a planned surgery in 45 days. When should the employee provide FMLA notice?
- Within 5 business days of the surgery date
- As soon as practicable after learning of the scheduled surgery, ideally providing 30 days notice (Correct answer)
- The week before the surgery
- On the day the employee begins their pre-surgery leave
Correct answer: As soon as practicable after learning of the scheduled surgery, ideally providing 30 days notice
For foreseeable FMLA leave, the employee should provide at least 30 days advance notice. With 45 days until surgery, providing notice now satisfies the 30-day requirement.
29 CFR 825.302 requires 30 days advance notice when practicable. Providing notice as soon as the employee learns of the scheduled procedure is best practice and gives the employer maximum time to prepare. Waiting until fewer than 30 days remain when earlier notice was practicable allows the employer to delay leave protections by up to 30 days.
Question 2: An employer requires absences to be reported through an online portal. An employee on intermittent FMLA calls the supervisor instead. Must the employer honor this as FMLA notice?
- No, portal use is mandatory and supersedes any other notice method
- Yes if it was not practicable to use the portal given the circumstances; otherwise the employer may require portal compliance going forward (Correct answer)
- Yes, the employee can always choose their preferred notice method
- No, verbal notice is never sufficient for intermittent leave
Correct answer: Yes if it was not practicable to use the portal given the circumstances; otherwise the employer may require portal compliance going forward
Employers may require compliance with normal call-in procedures for FMLA, but cannot deny FMLA protection if it was not practicable to use the portal.
29 CFR 825.303(c) allows employers to require compliance with their usual call-in or reporting procedures, so long as this does not effectively prevent the employee from exercising FMLA rights. If the employee could have used the portal but chose not to, the employer may deny FMLA designation for that absence after providing a written reminder about the reporting requirement.
Question 3: Which statement about FMLA notice content is correct?
- The employee must diagnose their condition in the notice
- The employee must provide enough information to alert the employer that the leave may be FMLA-qualifying (Correct answer)
- The notice must be submitted on a DOL-approved form
- The notice must specifically reference the 12-week entitlement
Correct answer: The employee must provide enough information to alert the employer that the leave may be FMLA-qualifying
Employees only need to provide sufficient information to suggest that the absence may be for an FMLA-qualifying reason. No official form, diagnosis, or specific legal reference is required.
29 CFR 825.302(c) specifies that the employee's notice need not mention FMLA by name, cite a specific regulation, or be in writing. The employee must provide enough factual context to alert the employer that the situation might qualify for FMLA. Once the employer has this information, the burden shifts to the employer to provide the eligibility notice and request certification.
Question 4: After receiving an employee's FMLA notice, when must the employer request medical certification?
- Within 2 business days
- Within 5 business days of the notice or when the need for leave becomes apparent (Correct answer)
- Within 10 business days
- Before providing the eligibility notice
Correct answer: Within 5 business days of the notice or when the need for leave becomes apparent
The employer must request medical certification within 5 business days of learning of the need for FMLA leave. The request should accompany or follow the eligibility notice.
29 CFR 825.305(a) requires the employer to request medical certification within 5 business days of learning of the potential FMLA need, or when the need for leave becomes apparent. The certification request must be made in writing and should accompany or follow the WH-381. Requesting certification later may be viewed as a waiver of the certification requirement for that period.
Question 5: What is the employee's obligation when a periodic recertification is requested by the employer?
- The employee may refuse all recertification requests
- The employee must return the completed recertification within 15 calendar days unless not practicable (Correct answer)
- The employee must provide recertification every 30 days without employer request
- The employee has 60 days to respond to recertification requests
Correct answer: The employee must return the completed recertification within 15 calendar days unless not practicable
When an employer requests recertification, the employee has 15 calendar days to provide the completed recertification, the same timeline as the initial certification.
29 CFR 825.308(d) gives employees 15 calendar days to submit a recertification when requested by the employer. If the employee fails to provide timely recertification without a good reason, the employer may deny continuation of FMLA protection.
Question 6: An employee provides FMLA notice but the employer determines the employee is not eligible. What must the employer provide?
- Only a verbal denial
- Written notice of ineligibility, including at least one reason why the employee is ineligible (Correct answer)
- A formal administrative hearing before denial
- A 30-day grace period to establish eligibility
Correct answer: Written notice of ineligibility, including at least one reason why the employee is ineligible
When an employer determines an employee is not eligible for FMLA leave, it must provide written notice of ineligibility using the WH-381 form, stating at least one reason for the ineligibility determination.
29 CFR 825.300(b)(2) requires the employer to notify the employee in writing within 5 business days if the employee is not eligible for FMLA. The WH-381 form includes checkboxes for the reasons: not employed 12 months, fewer than 1,250 hours worked, or fewer than 50 employees within 75 miles. Verbal-only denials are insufficient.
FMLA FMLA Notice Requirements & Employee Obligations 2
An employee is scheduled for a planned surgery in 45 days.
When should the employee provide FMLA notice?