FMLA Forms Give Employer Protection

control-427510_1280To comply with the Family and Medical Leave Act (FMLA), covered employers have to do some decision-making and documenting.  And this isn’t always easy because the FMLA rules can get complicated.  The challenges become somewhat easier, however, when an employer uses two FMLA forms provided by the U.S. Department of Labor (DOL).

But before getting to the DOL forms, an employer needs to know if the business or organization is obligated to comply with the FMLA.  FMLA puts obligations on all companies which have 50 or more employees for each working day during each of the 20 or more calendar workweeks in the current or preceding calendar year.  All public agencies, and all public and private elementary and secondary schools are covered employers without regard to the number of employees they have.

Next, a covered employer needs to know if an employee is eligible to take leave under the FMLA.  An eligible employee is one who works at a jobsite where 50 or more persons are employed within 75 miles of the jobsite.  Also, an eligible employee must have been employed by the company for at least 12 months (not necessarily consecutively), and must have been employed for at least 1,250 hours during the 12-month period immediately preceding the start of the leave.

An eligible employee can request FMLA for, among other things, situations involving a serious health condition. “Serious health condition” is defined as “an illness, injury, impairment, or physical or mental condition that involves either inpatient care, continuing treatment by a health care provider, pregnancy, chronic conditions requiring treatments, permanent/long-term conditions requiring supervision, or non-chronic conditions requiring multiple treatments.”  The eligible employee can request FMLA for his or her own serious health condition, or to provide care for a spouse, child, or parent with a serious health condition, or due to the birth of a child or the placement of a child with the employee for adoption or foster care.

Now… about the DOL’s Forms

Form WH-380. A covered employee has a legal obligation under FMLA to furnish a medical certification from a health care provider to the employer (when requested by the employer).  An easy way for the employer to request the certification and to assure obtaining adequate information from a health care provider is to give the employee the DOL form WH-380 and request that the employee have his or her health care provider complete the form.

Form WH-381. A covered employer has a legal obligation to provide workers taking FMLA leave with a written notice detailing specific expectations and obligations of the employee and explaining any consequences of failure to meet these obligations.  An easy way for the employer to give workers this written notice is to use the DOL form WH-381.

Both forms are available from the Department of Labor at its Web site:

Before granting an employee FMLA leave for a serious health condition, an employer can require the employee to submit form WH-380, the health care provider’s certification that a serious health condition exists.  The health care provider determines whether a patient’s condition meets the standards (described in the form), allowing the employer to avoid prying into the employee’s medical conditions.  The employer can require, at the employer’s expense, second and even third opinions from other health care providers.

A key question on form WH-380 is this: If able to perform some work, is the employee unable to perform any one or more of the essential functions of his or her job?  If yes, please list the essential functions the person is unable to perform.  For a health care provider to be able to intelligently answer this question, the employer needs to supply him or her with information about the employee’s essential job functions.  An employer can do this by providing the employee’s written job description that includes a list of the job’s essential job functions.

If the employee is requesting FMLA leave to care for a spouse, child or parent, the employer can require the worker to provide the completed form WH-380 for the spouse, child, or parent, and can require the employee to provide reasonable documentation proving the spouse, child, or parent relationship (such as birth or marriage certificates).

3 More FMLA Considerations

  • The FMLA does not require an employer to use forms WH-380 and WH-381.  Their use is voluntary.  However, if an employer chooses not to use the DOL forms to comply with FMLA obligations, the employer should consult with legal counsel because FMLA’s requirements are complex.
  • An eligible employee is entitled, under FMLA, to take 12 weeks of FMLA leave in a 12-month period.  This raises the question, what is a 12-month period? The employer can select one of four options: The calendar year, any fixed 12-month “leave year” such as a fiscal year or a year starting with the employee’s “anniversary” date, the 12-month period measured forward from the date any employee’s first FMLA leave begins, or a “rolling” 12-month period measured backward from the date an employee uses FMLA leave.

The advantage of using a “rolling” 12-month period for FMLA leave is it can prevent situations in which an employee could qualify for more than 12 weeks of FMLA leave in a 12-month period.  (For example, if the employer uses the calendar year as the 12-month period, it is possible for an employee to use the last 12 weeks of the first calendar year for FMLA leave, and then use the first 12 weeks of the following calendar year for continued FMLA leave.)

  • Sometimes an employee may be eligible for two types of leave, FMLA leave and some other leave such as pregnancy leave under a state law or Workers’ Compensation leave.  An employer needs to decide if the employee’s leaves, in these kinds of situations, should run concurrently or separately, and establish a policy for these kinds of situations.  For example, a state law may give an employee the right to take nine weeks of pregnancy/maternity leave.  Does the employer want the employee to take 12 weeks of FMLA leave because of the pregnancy, and then follow this with nine additional weeks of pregnancy or maternity leave under the state law?  Or would the employer prefer to have the employee take both leaves during the same period?

Note: States have a variety of laws giving employees rights to different types of family and medical leave.  For example, there are state laws giving employees the right to leave for pregnancy, maternity, attendance at school activities, organ or blood marrow donations, Workers’ Compensation, and disability.  Employers should consult with legal counsel to decide if and how to require employees to coordinate leave benefits.

How the Law Can Get Complicated

Here is just one of many issues that can confront an employer when an employee requests FMLA leave or is on FMLA leave.  An employer approves FMLA leave for an employee who has a “serious health condition.”  Then the employer learns the employee is working at a part-time job.  Can the employer terminate the employee’s FMLA leave?

The answer to this question isn’t a simple “yes” or “no.”

Assume the employer has used the DOL forms WH-380 and WH-381 and has determined the employee does have a serious health conditions preventing the employee from performing one or more of the essential functions of the job, and has granted the employee FMLA leave.

The employer, then, can examine this question: Is the employee, in the part-time job, performing tasks which are the same or similar to the essential functions of the job.  If so, this could be evidence supporting to conclude the employee really does not have a serious health condition that prevents performing the essential functions of the job.  Or, if the employee in the part-time job is performing tasks which are not the same or similar to the essential functions of the primary job, the employee’s working in the part-time job is not a pertinent factor.

In fact, the Department of Labor gives this answer to the question of whether an employer can restrict an employee’s outside activities while on FMLA leave: “Employers with establisehd policies regarding outside employment while on paid or unpaid leave may uniformly apply those policies to employees on FMLA leave.  Otherwise, the employer may not restrict [the employee’s] activities.”

[NOTE: Information and guidance in this article is intended to provide accurate information on the subjects covered.  It is not intended to provide a legal service for readers’ individual needs.  For legal guidance in your specific situation, always consult with an attorney who is familiar with employment law and labor issues.]


Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s