Human Resources News & Insights

FMLA: Attorney recommends 4 must-dos when leave is requested

When an employee requests to take leave from his or her job, there are four steps you must take before determining whether the leave is covered under the FMLA.

In a recent blog post, employment law Attorney Neal Buethe of the firm Briggs and Morgan says employers need to create an FMLA intake checklist that should be revisited when employees request FMLA-covered leave.

The four boxes Buethe says employers should tick on the checklist before granting FMLA leave:

  • Is the company covered by FMLA? Small employers can drift in and out of FMLA eligibility from year to year. For your company to be covered under the FMLA it must have employed 50 or more workers for each working day for at least 20 or more calendar workweeks in the current or preceding calendar year.
  • Is the employee FMLA eligible? Remember, to be eligible for FMLA leave an employee must have completed at least 12 months of service and worked at least 1,250 hours during the preceding 12 months — and be employed at company that has 50 or more employees within a 75-mile radius.
  • Is the reason for leave FMLA-eligible? The employee requesting leave must have a medical condition that meets the FMLA’s definition of a “serious health condition” in order to qualify for FMLA job-protected leave — or be caring for a family member with such a condition. Then the person must provide sufficient medical certification of the condition. It’s not uncommon for employers to be sympathetic to worker FMLA leave requests, even though the circumstances do not call for FMLA leave. But Buethe recommends that if you’re going to grant “sympathy” leave that you not classify it as FMLA leave. Otherwise, it could lead to major headaches down the road.
  • Did you avoid promising too much about reinstatement? The FMLA requires employers to reinstate workers returning from leave to an “equivalent” position. But you don’t want to promise workers they’ll get their old jobs back at the beginning of their leave if you’re not 100% certain you can deliver on that promise. Before taking leave, workers often want assurances their jobs will be waiting for them, but you’re not required to promise that. All you have to promise them is an equivalent job upon their return.

Source:The Importance of an FMLA Intake Checklist,” by Neal Buethe,, 6/13/12.

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