Vigilant Blog

News, trends and analysis in employment law, HR, safety & workers' comp

Aug 17, 2018

Q&A: No FMLA notice required unless employee asks for time off

Q&ADisabilityLeave LawsSafety and Health 

Question: I have a production employee who says that standing for eight hours a day is causing him pain. He doesn’t want to go on any type of leave and says he’d rather just suffer through it. We are covered by the federal Family and Medical Leave Act (FMLA). What do I do?

Answer: A practical initial approach may be to explore whether there are any ergonomic changes that could be made to the workstation to reduce or eliminate the pain, such as a cushioned standing mat, a foot rest, or a stool. If that doesn’t help, you’re welcome to let him know about the availability of protected leave under the FMLA or state law; however, you’re not required to do so unless the employee actually asks for time off and gives a medical reason that could qualify as a serious health condition.

Here are a few reminders of your initial FMLA obligations:

  • When you receive notice of a need for leave that may qualify for FMLA protections, you must provide a Notice of Eligibility and Rights & Responsibilities to the employee within 5 business days.
  • If applicable, you should also include the appropriate medical certification form for the employee to return within 15 calendar days.
  • If the employee is eligible and has a qualifying condition, you must issue a designation notice that the leave is protected by the FMLA; this is not the employee’s decision.

Failing to Adhere to Technicalities Can Be Costly

The DOL recently recovered over $63,000 in damages from a Washington roofing company for a former employee deprived of his FMLA rights. The DOL’s investigation revealed that the company knew of the employee’s serious health condition, but failed to inform the employee of his FMLA eligibility or to designate his time away from work as FMLA-protected. When it comes to the FMLA and any state-protected medical leave, failing to adhere to the technicalities can be costly.

Resources for Employers

If you have any questions about the procedures and requirements related to employee leaves of absence or the FMLA, see our Legal Guide, FMLA: Qualifying Events and Notice Requirements. For specific questions, please contact Vigilant to learn more about how we advise employers on complex employment-related issues under a flat monthly fee.

This website presents general information in nontechnical language. This information is not legal advice. Before applying this information to a specific management decision, consult legal counsel.