The Family and Medical Leave Act (FMLA) is a federal law that provides eligible employees of covered employers with unpaid, job-protected leave for certain family and medical reasons. In addition to providing eligible employees with leave for qualifying reasons, covered employers must maintain employees’ health benefits during leave and restore employees to their same (or equivalent) jobs after leave. In general, the FMLA covers private-sector employers with 50 or more employees and governmental employers of any size.
This checklist outlines key steps for employers to process an employee’s request for FMLA leave. Keep in mind that complying with the FMLA may involve additional steps depending on the facts of a specific situation. Also, many states (and some localities) have their own family and medical leave laws that provide broader leave protections to employees. Employers will need to comply with the FMLA and any applicable state and local leave laws.
FMLA Leave Request
| Employee name | |
| Date of leave request* | |
| Dates of anticipated leave |
*An employer may learn of a request for FMLA leave when the employee submits a request or when the employer acquires knowledge that an employee needs leave that may be for an FMLA-qualifying reason. When requesting FMLA for the first time, an employee is not required to specifically mention the FMLA. However, the employee must provide enough information for the employer to know that the leave may be covered by the FMLA.
Determining Employee Eligibility
| Employee Eligibility | Yes | No |
| Is the employee eligible for FMLA leave? To be eligible for FMLA leave, an employee must satisfy ALL the following criteria: The employee works for an employer covered by the FMLA;The employee has worked for the employer for at least 12 months as of the date leave is to start (it does not need to be consecutive);The employee has at least 1,250 hours of service for the employer during the 12-month period before the leave is to start; andThe employee works at a location where the employer has at least 50 employees within 75 miles of that worksite. | ☐ | ☐ |
| Employee Eligibility | Yes | No |
| Is the employee’s leave for a qualifying reason? Is the leave for one of the following FMLA-qualifying reasons? The birth of a child and to bond with the newborn child within one year of birth; The placement of a child for adoption or foster care and to bond with the newly placed child within one year of placement; A serious health condition that makes the employee unable to perform the functions of their job; To care for the employee’s spouse, child or parent who has a serious health condition; Any qualifying exigency arising out of the fact that the employee’s spouse, child or parent is a military member on covered active duty (or call to covered active duty status); orTo care for a covered servicemember with a serious injury or illness if the employee is the spouse, child, parent or next of kin of the servicemember. | ☐ | ☐ |
| If the employee has already used FMLA leave this year, does the employee still have FMLA leave available? Eligible employees are entitled to take up to 12 weeks of FMLA leave during a 12-month period (26 weeks to care for a covered servicemember). To make this determination, confirm which 12-month period (leave year) is used by your organization to calculate FMLA leave. An employer’s options for the leave year are: The calendar year (Jan. 1 through Dec. 31);Any fixed 12-month period, such as a fiscal year or a leave year beginning on the first day of an employee’s employment;A 12-month period measured forward from the first date an employee takes FMLA leave; orA rolling 12-month period measured backward from the date an employee uses FMLA leave. | ☐ | ☐ |
| If you answered “no” to any of the questions above, the employee is not eligible to take leave under the FMLA. Provide the employee with a Notice of Eligibility and Rights &Responsibilities(Form WH-381)and a Designation Notice (Form WH-382) within five business days of the employee’s request for leave, indicating that the employee is not eligible for FMLA leave. Also, consider whether the employee is eligible for leave under any other employer leave policy or federal, state or local law. | ||
| Did the employee provide sufficient advance notice of their need to take FMLA leave? Generally, an employee must give at least 30 days advance notice of the need to take FMLA leave when they know about the need for the leave in advance and it is possible and practical to do so. If an employee does not provide at least 30 days advance notice, but it was possible and practical to do so, the employer may delay the FMLA leave until 30 days after the date the employee provides the notice. When the need for leave is unexpected, the employee must provide notice as soon as possible and practical. It should usually be reasonable for the employee to provide notice of leave that is unforeseeable within the time required by the employer’s usual and customary notice requirements. | ☐ | ☐ |
Processing Leave Requests
| Leave Request Process | Complete | Deadlines |
| Provide the Notice of Eligibility and Rights & Responsibilities within five business days of the employee’s request for leave unless there are extenuating circumstances. The U.S. Department of Labor (DOL) has a model form (Form WH-381) that employers may use for this notice requirement. | ☐ | Date notice is provided: |
| If a certification is required for the requested leave, give the appropriate form to the employee and provide the employee with at least 15 calendar days to return the form. An employer may require a medical certification when leave is requested for the employee’s own serious health condition or the serious health condition of a family member. Employers can also require a certification for military family/caregiver leave. The DOL has the following model forms that employers may use for obtaining certifications: Certification for employee’s serious health condition (Form WH-380-E);Certification for family member’s serious health condition (Form WH-380-F);Certification for military family leave— qualifying exigency (Form WH-384); Military caregiver leave of a current servicemember (Form WH-385); and Military caregiver leave of a veteran (Form WH-385-V). An employee requesting FMLA leave should be informed of this certification requirement in the Notice of Eligibility and Rights & Responsibilities, and the appropriate certification form should be provided. | ☐ | Date certification form is due: Date certification formis returned: |
| If FMLA leave will be approved, determine whether paid leave will be used at the same time as FMLA leave. An eligible employee may choose or an employer may require the employee to substitute accrued paid leave for FMLA leave. “Substitute” means that the accrued paid leave will run concurrently with the unpaid FMLA leave. When an employee chooses or an employer requires the substitution of paid leave, the employer must inform the employee of any procedural requirements of the employer’spaid leave policy that the employee must satisfy. If the employee does not comply with those proceduralrequirements, the employee is no longer entitled to substitute accrued paid leave but remains entitled totake unpaid FMLA leave. | ☐ | |
| If a certification is required for the leave, review any certification form returned by the employee to determine whether it has been appropriately completed. | ☐ | |
| If a certification is incomplete or insufficient, notify the employee about what additional information is needed to complete the certification form. Employers use the Designation Notice to inform an employee that the certification is incomplete or insufficient and identify what information is needed to make the certification complete and sufficient. A certification is considered incomplete if one or more applicable entries have not been completed; and A certification is considered insufficient if the information provided is vague, ambiguous or nonresponsive. An employee must have at least seven calendar days to correct any deficiency in the certification. If it is not practicable under the circumstances for the employee to cure any deficiency in the seven-day period despite their good-faith efforts, the employer should provide additional time. If an employee fails to provide a complete and sufficient certification despite the opportunity to cure the deficiency, an employer may deny the employee’s request for FMLA leave. | ☐ | Date notice is provided: Deadline for providing more information: |
| Request second and third medical certifications, if needed. If an employer has received a complete and sufficient certification but has a reason to doubt that it is valid, the employer may require the employee to obtain a second opinion at the employer’s expense. If the first and second opinions reach different conclusions, the employer may require a third opinion at the employer’s expense. The opinion of the third health care provider is final. While waiting for the second (or third) opinion, the employee is temporarily entitled to FMLA leave, including the right to maintain their group health benefits. If the certifications do not ultimately establish that the employee is entitled to FMLA leave, the leave is not considered FMLA leave and may be treated as paid or unpaid leave under the employer’s established leave policy. | ☐ | Date of request: Date medical opinion(s) are provided: |
| Grant or deny the FMLA leave by providing the Designation Notice in a timely manner. This notice must be provided once the employer has enough information to determine if the employee’s requested leave qualifies as FMLA leave, as follows: If a certification is not required for the requested leave, provide the Designation Notice within five business days of the leave request; orIf a certification is required, provide the Designation Notice within five business days of when the employee submits a complete and sufficient certification form. The DOL has a model Designation Notice (Form WH-382) employers may use. The employer is responsible in all circumstances for designating leave as FMLA-qualifying and giving a Designation Notice to the employee. Note that leave taken under a disability leave plan or as a workers’ compensation absence that also qualifies as FMLA leave due to the employee’s own serious health condition may be designated by the employer as FMLA leave and counted against the employee’s FMLA leave entitlement. Failure to provide a timely Designation Notice to an employee may be considered interference with,restraint or denial of the exercise of the employee’s FMLA rights. | ☐ | Date notice is provided: |
Administering FMLA Leaves
| FMLA Obligations | Complete |
| During leave, maintain coverage under the group health planon the same basis as coverage would have been provided if the employee had been continuously employed during the entire leave period. During the FMLA leave period, an employee must continue to pay whatever share of group health plan premiums the employee paid prior to FMLA leave. The employer must provide the employee with advance written notice of the terms and conditions under which these payments must be made. | ☐ |
| If applicable, the employee must provide a fitness-for-duty certification to show that they can resume work after taking a leave for their own serious health condition. Employers may have a uniform policy requiring all similarly situated employees who take leave for serious health conditions to provide a fitness-for-duty certification. | ☐ |
| Restore the employee to the same job (or an equivalent job) at the end of the leave. The employee is not guaranteed the actual job they held prior to the leave. An “equivalent job” means a job that is virtually identical to the original job in terms of pay, benefits, and other employment terms and conditions (including shift and location). | ☐ |
| Maintain records regarding FMLA leave for at least three years. Covered employers who employ FMLA-eligible employees must maintain records that include the following: Basic payroll and identifying employee data; Dates FMLA leave is taken (which must be designated in the records as FMLA leave);Hours of FMLA leave used if leave is taken in increments of less than a day; Copies of FMLA notices provided by an employee to the employer and by the employer to its employees concerning the FMLA (including any written request for leave from the employee as well as any required notice provided to the employee concerning FMLA leave);Any documents, including electronic records, describing employee benefits or employer policies and practices regarding the taking of paid or unpaid leave; Premium payments for employee benefits; and Records of any dispute between the employer and an employee regarding the designation of leave as FMLA leave, such as emails or other written statements regarding a disagreement on the designation of the employee’s FMLA leave request. | ☐ |
| Maintain FMLA medical certifications as confidential medical records. These records must be maintained in separate files from the usual personnel files. As medical records, they are subject to confidentiality requirements of the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act, as applicable. | ☐ |
Use this checklist as a guide when reviewing your company’s compliance with processing an employee’s FMLA leave request.
