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The Department of Labor offers an Employer's Response Form that may be used when an employee requests an FMLA or CFRA leave of absence.

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legal updates

July 2008

FMLA COMPLIANCE


DOL Form Simplifies Employer’s

Obligation To Designate FMLA Leave


By Christopher W. Olmsted


Managing FMLA leave is a complicated undertaking. The use of a Department of Labor form "Employer Response to Employee Request for Family or Medical Leave" (form WH-381) will simplify the process in some respects.

Once the employer has acquired knowledge that the leave is being taken for an FMLA required reason, the employer must promptly (within two business days absent extenuating circumstances) notify the employee that the paid leave is designated and will be counted as FMLA leave. If there is a dispute between an employer and an employee as to whether paid leave qualifies as FMLA leave, it should be resolved through discussions between the employee and the employer. Such discussions and the decision must be documented.

The employer's notice to the employee that the leave has been designated as FMLA leave may be orally or in writing. But if the notice is oral, it must be confirmed in writing, no later than the following
payday (unless the payday is less than one week after the oral notice, in which case the notice must be no later than the subsequent payday). The written notice may be in any form, including a notation on the
employee's pay stub.

As with most employment practices, written notice is a best practice. The employer’s written notice should designate the leave as FMLA leave and detail specific expectations and obligations of an employee who is exercising his/her FMLA entitlements.

The Department of Labor provides a form for this purpose, and its use is recommended. The form may be used for FMLA or California CFRA leave. Use of the form will ensure that the employer includes the following information as required by FMLA regulations:

  • that the leave will be counted against the employee's annual FMLA leave entitlement;
  • any requirements for the employee to furnish medical certification and the consequences of failing to do so;
  • the employee's right to elect to use accrued paid leave for unpaid FMLA leave and whether the employer will require the use of paid leave, and the conditions related to using paid leave;
  • any requirement for the employee to make co-premium payments for maintaining group health insurance and the arrangement for making such payments;
  • any requirement to present a fitness-for-duty certification before being restored to his/her job;
  • rights to job restoration upon return from leave;
  • employee's potential liability for reimbursement of health insurance premiums paid by the employer during the leave if the employee fails to return to work after taking FMLA leave; and
  • whether the employee qualifies as a "key" employee and the circumstances under which the employee may not be restored to his or her job following leave.

    The DOL’s FMLA Employer’s Response Form can be downloaded by clicking the link down at the bottom of this page.

    More Legal Update articles.
    Download entire July 2008 Legal Update in PDF format.

    This article is intended as a brief overview of the law and are not intended to substitute as legal advice. Any questions or concerns regarding any statute or case law should be addressed to a licensed attorney. Copyright © 2008 by Barker Olmsted & Barnier, APLC. San Diego, California. All rights reserved.





    FMLA_Employer_Response_Form.pdf

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