How to Approve or Deny FMLA Leave

Under the Family and Medical Leave Act (FMLA), covered employers must provide eligible employees with specific notices of their FMLA rights and responsibilities and designate leave as FMLA when appropriate. This guide provides the typical steps in approving or denying an FMLA leave.

Step 1: Provide Education and Notices

Under the FMLA, covered employers are required to post a general notice of the FMLA provisions for employees and applicants. In addition, if there are eligible employees, covered employers are required to distribute the general notice to employees. This notice is typically included in employee handbooks, procedure manuals or new-hire paperwork or is posted on the organization's intranet. Employers should develop and facilitate training for employees and supervisors on what the FMLA covers; when, where and how to request FMLA leave; and the procedures for filing complaints of violations of the act.

Step 2: Respond to a Request for FMLA Leave

An employer may learn of a request for FMLA leave when the employee submits a request for time off or when the employer acquires knowledge that an employee needs leave that may be for an FMLA-qualifying reason. According to FMLA regulations, "An employee giving notice of the need for FMLA leave does not need to expressly assert rights under the Act or even mention the FMLA to meet his or her obligation to provide notice, though the employee would need to state a qualifying reason for the needed leave and otherwise satisfy the notice requirements."

The employer is required to respond to the employee within five business days of receiving a request or of becoming aware of the need for FMLA leave. The easiest way to comply with this response requirement is to use the FMLA model form Notice of Eligibility and Rights & Responsibilities (WH-381).

The employer's response must establish whether the employee is eligible for FMLA leave and notify the employee of his or her rights and responsibilities under the FMLA. An employee is eligible for FMLA leave only if the employee meets all three of the following eligibility requirements: "(1) Has been employed by the employer for at least 12 months, and (2) has been employed for at least 1,250 hours of service during the 12-month period immediately preceding the commencement of the leave, and (3) is employed at a work site where 50 or more employees are employed by the employer within 75 miles of that work site." An employee with no fixed worksite is covered under the FMLA if the office to which the employee reports and from which assignments are made has 50 or more employees working within 75 miles of its location. The FMLA regulations state, "An employee's personal residence is not a worksite in the case of employees, such as salespersons, who travel a sales territory and who generally leave to work and return from work to their personal residence, or employees who work at home, as under the concept of flexiplace or telecommuting. Rather, their worksite is the office to which they report and from which assignments are made."

If the employee does not meet these three criteria, the employer's responsibility is to notify the employee of ineligibility for FMLA leave by specifying at least one criterion the employee does not meet on the Form WH-381.

Step 3: Determine Certification Needs

Employers typically respond to FMLA leave requests by providing the employee with the Notice of Eligibility and Rights & Responsibilities (Form WH-381) and a medical certification form. There is no requirement for an employer to request medical certification if an employer has enough information to know that an employee's absence is FMLA qualifying. Employers should be consistent, though, in the policy and practice of requiring medical certifications from employees requesting FMLA leave. Employers are not permitted to request a medical certification for leave to bond with a healthy newborn child or a child placed for adoption or foster care. However, employers may request documentation to confirm the family relationship.

The Department of Labor (DOL) has published four different model certification forms. The forms are simply tools to help employers in the administration of FMLA leave. When requiring a medical certification, employers should select the appropriate form below to include with the Notice of Eligibility and Rights & Responsibilities (Form WH-381). Employees must be allowed up to 15 calendar days to complete and return their certification form. See FMLA Certification Forms.

Employers usually hand-deliver FMLA forms to employees. If that is not possible, FMLA forms may be mailed to the employee's address of record.

Step 4: Determine Clarification and Authentication Needs, if Any

On occasion, certification forms are returned to the employer incomplete or with insufficient information. A certification is considered incomplete if the employer receives a certification, but one or more of the applicable entries have not been completed. A certification is considered insufficient if the employer receives a complete certification, but the information provided is vague, ambiguous or nonresponsive. The employer must provide the employee seven calendar days (unless not practicable under the particular circumstances despite the employee's diligent good-faith efforts) to correct any such deficiency, and the employer must inform the employee of the consequences for failure to provide a complete and sufficient certification. If the employee fails to provide the certification, the employer (i.e., a health care provider, human resource professional, leave administrator or management official) may contact the employee's health care provider directly for purposes of clarification and authentication.

According to the U.S. Department of Labor's FMLA Guide for Employers, "Authentication means providing the health care provider with a copy of the certification and confirming that the information contained on the certification form was completed and/or authorized by the health care provider who signed the document. Clarification means contacting the health care provider to understand the handwriting on the medical certification or to understand the meaning of a response. An employer may not ask health care providers for additional information beyond that in the certification form." The employee's direct supervisor may not, under any circumstance, contact the employee's health care provider. If the deficiencies specified by the employer are not corrected in the resubmitted certification, the employer may deny the taking of FMLA leave.

Step 5: Obtain Second and Third Opinions, if Needed

Sometimes an employer may doubt the validity of a medical certification. In this situation, an employer may be able to obtain a second medical opinion at the employer's expense. An employer may designate the health care provider for the second opinion; however, the health care provider may not be someone who is regularly used or employed by the employer, unless health care is limited in the geographic area. Pending the outcome of the second opinion, an employee is entitled to the protections of the FMLA. If the second opinion does not entitle the employee to FMLA leave or if the employee or family member's health care provider refuses to release relevant information to the employer's designated health care provider on request, the FMLA leave may be denied.

Employers may request a third opinion, again at the employer's expense, when the opinions of the employee's and the employer's designated health care providers' differ. An employer and employee must agree on a third health care provider. If the organization fails to reach an agreement on a health care provider, the organization may be bound by the first certification. If the employee fails to reach an agreement on a health care provider, the employee may be bound by the second certification. If a health care provider is agreed on, the third opinion will be final and binding. If the third opinion does not entitle the employee to FMLA leave or if the employee or family member's health care provider refuses to release relevant information to the employer's designated health care provider on request, the FMLA leave may be denied.

Step 6: Approve or Deny the Leave

The DOL provides a model Designation Notice (Form WH-382) that can be used to notify the employee whether his or her FMLA request has been approved or denied. If employers have enough information on the initial request to approve or deny the FMLA leave, they may supply the Designation Notice (Form WH-382) at the same time as the Notice of Eligibility and Rights & Responsibilities (Form WH-381). If employers are requesting a medical certification form, they must allow 15 calendar days for the return of this document prior to designating the time off as FMLA leave. Even though employers may not formally designate the leave as approved under the FMLA until several weeks after it starts, in some circumstances, they still track FMLA leave from the start of the leave. After an employee returns the medical certification form, an employer has five business days to approve or deny FMLA leave. If the employee has not returned medical certification within 15 calendar days as stated on the Notice of Eligibility and Rights & Responsibilities (WH-381), and the employer is not aware of extenuating circumstances, the employer should notify the employee in writing that the FMLA request has been denied, using the Designation Notice (Form WH-382) or a similar communication.

Step 7: Retroactively Designate Leave Due to a Missed Deadline

The DOL has recognized that employers might occasionally miss a deadline to respond to an employee's FMLA request or FMLA designation. According to FMLA regulations, "If an employer does not designate leave as required by Sec. 825.300, the employer may retroactively designate leave as FMLA leave with appropriate notice to the employee as required by Sec. 825.300 provided that the employer's failure to timely designate leave does not cause harm or injury to the employee. In all cases where leave would qualify for FMLA protections, an employer and an employee can mutually agree that leave be retroactively designated as FMLA leave." Even if an employer does not designate FMLA in a timely manner, the employee must be provided the same leave benefits and job guarantees he or she should receive under the FMLA. It is always safest to make retroactive designations with the consent of the employee. If an employer wishes to make the designation retroactive despite the employee's objections, the employer should do so only with the advice of an attorney.

Examples

In all scenarios below, the organization is an FMLA-covered employer with at least 50 employees within 75 miles of the employee's worksite.