Human Resources News & Insights

6 Crucial forms for the new FMLA

Under the new Family and Medical Leave Act regulations that take effect this month, you could be required to use six different types of notices — and forms: general, eligibility, rights and responsibilities, and designation, plus two medical forms.

  1. Form WH-1420, the “general notice” poster, combines previous FMLA poster and policy requirements.  The regs say you must post the notice “conspicuously.”
  2. The eligibility notice (Part A of Form WH-381) informs employees if they’re eligible for FMLA leave. Under most circumstances, you must provide the notice to an employee within five
    business days after the employee’s first request for leave during a given leave year. The form also provides a space for employers to advise ineligible employees on why they don’t qualify
    for FMLA leave.
  3. If an employee is eligible to take FMLA leave, you must simultaneously provide
    the employee with a “rights and responsibilities notice” (Part B of Form WH-381). As its name suggests, this form provides an employee with additional information concerning obligations for leave to qualify under the FMLA. For example, the form indicates whether a certification is required, as well as whether there is any company policy requiring or permitting the use of paid time off while on FMLA leave.
  4. You can use a “designation notice” (Form WH-382) to advise an employee as
    to whether his or her request for FMLA leave has been granted. Generally, you should provide such notice to an employee within five business days after the employer acquires sufficient information to determine whether the leave qualifies. At this stage, you must also notify the employee if a fitness-for-duty certification will be required prior to returning to work.
  5. Form WH-380-E is used for an employee’s own serious health condition.
  6. Form WH-380-F is used for the serious health condition of a qualifying family member.

The forms are undergoing modification, and not all of the latest versions are available. We’ll alert you to the new versions as soon as they’re posted.

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  1. We do not have family/medical leave at the place I work. If you take anytime off you have to use your vacation days or you don’t get paid for those. If it is more than a few days off you very well will loose your job all together. We do not even have sick days . We are rated 28th in North America in our industry and we have been around since 1985 so It is hard for me to understand how this employee won the case with unexcused absentances.

  2. Family Leave Act is a law. There should b a poster displayed at your work place outlining the rules for it. If the company is a small company with few employees, there are exceptions. The rules are stated on the poster. If the poster is not displayed in a prominant place, then the company is not in compliance to the law. Sick days and vacation days are regulated by each state. Some states do not require the employer to give sick days or vacation days. You should look into your employment laws. Most are on the posters that are supposed to be displayed for every employee to read.

  3. Susan, our company has over 400 employees. Thank you for the information.

  4. H.B. I thought if you had over 50 employees, you were required to have FMLA! How does your company avoid that?

  5. Karlin, I think I origianally misunderstood what it pertained to. I thought it was for all employees and not just the military.

  6. Brenda S. says:

    So, if we only have 10 employees, do we still have to post the sign?

  7. H.B., FMLA does apply to ALL employers in the U.S. that have 50 or more employees, not just the military. However, it does not require employers to provide paid leave. Depending on the state you work in, your employer may or may not be allowed to require employees to use up sick or vacation time before FMLA leave goes into effect. Again, FMLA does not require employers to grant paid leave, it only allows up to a certain amount of unpaid leave time to care for a sick family member or if you are sick…in effect, protecting your job if you have to be out of work for a protected reason. I have heard that some companies pay employees who are on FMLA leave, but it is NOT required.

  8. JT – I thought FMLA started the day you left work work to start your leave (for whatever reason). If your company requires you to take sick and/or vacation then FMLA ran concurrent with the sick or vacation taken. If you have 6 weeks of vacation and sick available, you are paid, but you’ve also used 6 weeks of vacation and/or sick. If you exhaust all your available time (to be paid), the remainder of your time off is unpaid. Federal regulations are that FMLA is unpaid.

    Another question, are your required to obtain a doctor’s release after the employee comes back to work. For record purposes, I would think so. I understand some companies don’t require a release.

  9. The Federal law says it is unpaid leave, but a company may make it paid, or require you to exhaust accured paid leave (both sick and vacation) in conjunction with FMLA. Depending on the reason for FMLA you are required to get a doctors release for an employee to come back. FMLA can be used for more than just a major illness for the employee, it can be intermittant, for illness or birth of a child, a whole host of things. But there are notification requirements for both the employee and the employer. I think the SHRM website has whitepapers that give a good summary of what is required.

  10. Hi,
    I have an employee who should be terminated for attendance but her last two absences she provided a doctor note. We don’t consider the reason for their absences, but I am a little concerned about firing her when I have a doctor note. I don’t think the absence would be covered by FMLA but I don’t want to have to pay her unemployment either. Any comments on this one?

  11. Jen –

    there are rules to when leave is under FMLA, notifications that must occur. Review your policy manual make sure the policy about attendance doesn’t conflict with FMLA or FLSA and you should be ok. I would check with your state unemployment office too. Your state may have regualtions you need to watch out for.

    Also, is there documenation of warnings, etc in regards to the absences? Documentation is your friend.

    Good luck

  12. Is an employer able to allow one employee to take paid leave for spurratic absences to care for a childwith a chronic illness while asking another to use unpaid FMLA? In this instances the time loss are essentially equal.

  13. I have just become the HR Director for my company. I have been here 3.5 years in another position (supervisory). I was told when I first hired on, since we have less than 50 employees and are a non-profit, FMLA does not apply to us. Is this true? Prior I thought FMLA applied to ALL employers; non-profit, for profit, 5 employees, 500 employees. Is this true? Thanks for the help!

  14. Janie –

    the only way an employer with under 50 employees is required to follow FMLA is if they put it in their policy manual. I work at a company with 36 people, we follow FMLA but only becuase it was put into the policy manual, once you offer it, you are obligated to it.

    Hope that helps

  15. I recently had a heart attack and my Dr now required that I take a 12 wk cardio rehab class. My Dr noted that I am able to return to full duty work since I sit at a desk all day as Accounting Technician.
    I live in Richmond,VA and work in DC. My classes are 2-3 day a week and begin on 09/22/2009. My Cheif says that I need to transfer my rehab to the DC area in order to attend. My Dr is in VA and is a part of my class. Do I have to have my rehab done in DC by strangers or is it my decision where I go to be eligible for FMLA???

  16. My wife has had FMLA for the last 3 yrs at her job, but just this year they have started harrassing her, they gave her an performance review about 1 mth ago saying she needs to improve her call time so a week after the review they evaluated her again and they wrote her up for an evaluation that was only for 1 week of work and 4 of those days she was off.She also applied for a position that would accompain her better which was a home position they denied her the opprotunity to apply stating the she hasn’t been in her current position for 90 days, but the job she is currently doing they allowed her to apply for it before 90 days. Mainly she suffers from severe migraines and she works for an hospice pharmacy which requires her to wear head sets and the light from the computer bothers her. So just about 4 days ago she was released from tho hospital which she was in there for 2 weeks. Now its time for her to renew her FMLA papers which she has completed now her job has told her don’t come to work yet because they have 5 days to respond to her fmla, is she supposed to get paid while she waits on them.

  17. She’s employed in memphis tennessee

  18. we employee 9 employees, does FMLA apply? Will the employee be able to file for disability benefits if it is for the care of a parent?

  19. Angela –

    I know a lot is changing, but I believe the 50 employee rule is still in place. The only way FMLA applies is if it is in your policy manual. We have 38 employees and that is how it was explained to me. So if you don’t mention it in your policy, you are not required to follow it.

  20. The state Department of Labor says the unemployment rate edged up slightly to 9.5 percent last month as Idaho’s pool of unemployed workers swelled to a record 71,600. News reports claim an improvement in the economy. I have not seen any positive improvement, the workplace has developed into an environment of hastily and fear of being cut loose of their income due to cut backs.

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