Employer and Employee Responsibilities

Employer Responsibilities

• The employer must provide the employee with a timely and definite determination of whether the employee is covered by the FMLA.
• The employer must tell the employee if he or she may combine paid leave with unpaid leave.
• Under the FMLA, the employer must provide the employee or someone acting on his or her behalf with the paperwork that must be filled out during the leave.
• Under two circumstances, employers will allow employees to take their medical leave intermittently. First, intermittent leave is allowed, subject to approval by the employer, when taken for birth and care of a baby or for placement of a child for adoption or foster care. Second, intermittent leave is allowed when medically necessary to care for a family member or when the employee is seriously ill and unable to work.
• The employer must continue providing the employee on leave with his or her health insurance coverage as though the employee were still on the job.
• When the employee is ready to return to work, the employer must provide the employee with his or her original job oran equivalent job with equivalent pay, benefits and other terms and conditions of employment.

Q&A

Job and benefits change after leave
Question: When I returned from 10 weeks of FMLA leave, my boss told me the only job available was an entry-level one in the marketing department. This job provides fewer employment benefits than my previous, higher-ranking job in the accounting department. Do I have to accept these changes, or do I have the right to challenge them?
Answer: The FMLA provides protection for most employees in your situation. (Only certain highly paid, “key” employees may not be covered.) Discuss your concerns with your boss and human resources representative. If you cannot get satisfactory help from them, you may need to find an employment law attorney to help you evaluate your situation and your losses.

Fired after leave
Question: I was fired fewer than 90 days after returning from 10 weeks of family leave. My employer insists that the leave played no role in my firing. I had an excellent work record before my absence and had even received a recent promotion. I took time off to take care of my husband after he suffered a massive heart attack. Does the FMLA provide me with any help in challenging my termination?
Answer: You should immediately seek the advice of an employment law attorney to evaluate your situation. The FMLA specifically forbids employers from discriminating against employees who take FMLA leave. Ask your lawyer if any other federal or state statutes provide you with relief. Before signing any documents related to your departure, have your attorney review them so you do not jeopardize any valid future claims or rights.

Employee Responsibilities

• The employee must provide the employer with the required medical certification documenting the legitimacy and ongoing nature of the leave. In general, the initial certification must be provided at least 30 days before the start of the leave.
  • When the leave is unforeseeable, the law requires the employee to provide the employer with notice “as soon as practicable.” The law defines “practicable” as “as soon as both possible and practical, taking into account all of the facts and circumstances in the individual case. … [This would] ordinarily mean at least verbal notification to the employer within one or two business days of when the need for leave becomes known to the employee.”
• The employee must make sure the employer knows the current leave is being taken under the FMLA and not under another law.
• Whenever possible, the employee should schedule FMLA leave so as to minimize any disruptions in the workplace.

Q&A

Request for medical documentation
Q: I did not need the full 12 weeks of my FMLA leave and would like to return to work. Unfortunately, my boss is demanding more medical documentation. I know I’m strong enough to return. Must I supply additional medical paperwork?
A: Yes, your employer has the right to request a “medical certificate of fitness” from your health care provider. This is both for your protection and the employer’s so that you will not return prematurely and develop complications that added healing time might have prevented.

Taking leave at end of school year
Q: I am a teacher, and shortly before the end of the academic year, I requested FMLA leave to care for my mother. The principal told me I could not take two weeks off, then return for the remaining two weeks before school lets out for the summer. I gave up on leaving and have incurred considerable debts because I had to hire round-the-clock care for my mother. Can I be reimbursed for my financial losses because I was discouraged from taking leave?
A: Schools sometimes have the right to restrict the timing of FMLA leave when it would fall near the end of an academic year. You need to ask a lawyer to review your rights under both the FMLA and your state’s family-leave statutes to see if you are entitled to file a lawsuit. Be ready to provide your attorney with a copy of your teaching contract, which should provide information about your rights under the act.

Second opinion about leave
Q: My employer is questioning my doctor’s certification that I need to take time off under the FMLA and says I must get a second opinion. Is this request valid, and who pays for the second opinion?
A: If your employer believes there is a valid reason to doubt the medical certification you provided, he or she may require a second opinion from a doctor chosen and paid by your company.

Last updated: Oct. 1, 2008