RESPONSE TO EMPLOYEE REQUEST FOR FMLA LEAVE

Employers have an affirmative obligation to give employees seeking FMLA leave notice of the specific expectations and obligations that they face. This can be accomplished with a form response. Two sample forms follow.

Response to Your Request for Leave 

TO: Employee 

FROM: Human Resources

RE: Your Request for Leave Under the Family and Medical Leave Act of 1993

DATE:

We have received your request for leave. Upon review of your request, it has been determined that this leave meets the requirements of the Family and Medical Leave Act of 1993 (FMLA). You are entitled to twelve (12) weeks of leave annually pursuant to the FMLA and this leave will be counted against your annual FMLA leave entitlement. So long as you return before the expiration of your FMLA entitlement, you will be returned to your position or an equivalent job with equivalent pay, benefits and terms and conditions of employment. Pursuant to the FMLA we are required to provide you with specific notice as to the conditions of the FMLA leave.

The following statements are applicable to your leave if they are checked: 

____ Beginning on _________________, 20__ , you have accrued hours/weeks of FMLA leave pursuant to your FMLA leave entitlement. 

____ This leave will be without pay.

____ Your accrued vacation time and sick time will first be used and counted towards your twelve (12) weeks FMLA leave entitlement. After you have exhausted your paid leave, the remainder of your leave will be without pay.

____ This leave will be paid in accordance with the Company's medical disability plan and will be counted towards your twelve (12) weeks of FMLA leave entitlement.

____ You have requested leave because of a serious health condition and you must provide the Company with medical certification of this serious health condition. A copy of the medical certification form is attached. If you fail to return the completed medical certification form within fifteen (15) days, your leave will not be granted until thirty (30) days after you provide the proper medical certification.

____ You must use your accrued vacation time instead of unpaid leave. If the leave is for a serious health condition, you have the option to use your accrued sick pay.

____ You will be required to present the Company with a fitness-for-duty certificate from your health care provider before you may resume work.

____ You have been designated a key employee and you may not be entitled to return to your job. Should the Company determine that substantial and grievous economic injury will result from your reinstatement, you will be notified of such fact in writing and given an opportunity to end the leave and return to work. If you remain on leave after such an opportunity, you will not have a right to be restored to employment.

____ You must provide the Company with periodic medical certification, every thirty (30) days from the date you commence your leave, as to your serious health condition or your family member's serious health condition.

During your leave, the Company will continue to pay the Company's portion of your health insurance premiums and you must also pay your share of the health insurance premiums. If you fail to pay your premiums, your health insurance coverage will cease. During paid leave, your share of the premium will continue to be paid through payroll deductions. If you are on unpaid leave, you must submit your share of the health insurance premiums of $_____ per . Payment is expected as follows:

____ At the same time that your payroll deduction would be made.

____ By cash or check ____at ____on or ____before the ____of each month. 

If you fail to return to work after the expiration of the leave, you will be expected to reimburse the Company for its share of the health insurance premiums. You will not be required to reimburse the Company if you are precluded from returning to work by a serious health condition. You will be required to provide the Company with medical certification of the serious health condition. Further, you will not be required to reimburse the Company if you did not return to work because of circumstances beyond your control. 

I verify that I personally delivered this Response memorandum to (the employee) on , 20____ . 

By:

Title:

Employer Response to Employee Request for Family or Medical Leave

TO: (Employee's Name)

FROM: Personnel Department

RE: Request for Family/Medical

On (date), you notified us of your need to take family/medical-related leave due to:

____ the birth of your child, or the placement of a child with you for adoption or foster care; or

____ a serious health condition that makes you unable to perform the essential functions of your job; or

____ a serious health condition affecting your ____ spouse, ____ child, ____ parent for which you are needed to provide care.

You notified us that you need this leave beginning on (date) and that you expect this leave to continue until on or about (date).

Except as explained below, you have a right under the FMLA for up to 12 weeks of unpaid leave in the 12-month period for the reasons listed above. Also, your health benefits must be maintained during any period of unpaid leave under the same conditions as if you continued to work, and you must be reinstated to the same or an equivalent job with the same pay, benefits, and terms and conditions of employment on your return from leave. If you do not return to work following FMLA leave for a reason other than the continuation, recurrence, or onset of a serious health condition which would entitle you to FMLA leave, or other circumstances beyond your control, you may be required to reimburse us for our share of health insurance premiums paid on your behalf during your FMLA leave.

This is to inform you that: (check appropriate boxes and explain where indicated)

____ 1a. You ____ are eligible ____ are not eligible for leave under the FMLA.

____ 1b. You ____ may be eligible for leave under the FMLA. However, the following additional information will be necessary to make a trial determination.

_____________________________________________________________________

_____________________________________________________________________

____ 2. The requested leave ____ will ____ will not be counted against your annual leave entitlement.

____ 3. You ____ will ____ will not be required to furnish the attached form (attach DOL form WH-380 or a health care provider certification form. If required, you must furnish certification of a serious health condition by (date) or we may delay the commencement of your leave until certification is submitted.

____4(a). If you normally pay a portion of the premiums for your health insurance, these payments will continue during the period of FMLA leave. Payments are due by the 1st of each month.

____ 4(b). You have a minimum 30-day grace period in which to make premium payments. If payment is not made timely, your group health care coverage may be canceled, provided we notify you in writing at least 15 days before the date that your health care coverage will lapse, or, at our option, we may pay your share of the premiums during FMLA leave and recover these payments from you upon your return to work. We ____ will ____ will not pay your share of group health care coverage premiums while you are on FMLA leave. 

____ 4(c). We ____ will ____ will not pay your share of the premiums for other benefits (for example, life insurance, disability insurance, etc.) while you are on FMLA leave. If we do pay your premiums for these other benefits, when you return from leave, you ____ will ____ will not be expected to reimburse us for the payments made on your behalf. 

____ 5. You ____ will ____ will not be required to present a fitness-for-duty certificate prior to being restored to employment. If such certification is required but not received, your return to work may be delayed until the certification is provided.

____ 6. You ____ are ____ are not a key employee as described in FMLA regulations ( 825.218). If you are a key employee , restoration to employment may be denied following FMLA leave on the grounds that such restoration will cause substantial and grievous economic injury to us.

____ 7. While on leave, you ____ will ____ will not be required to furnish us with periodic reports (generally every 30 days) of your status and intent to return to work.

____ 8. If the circumstances of your leave change and you are able to return to work earlier than the date indicated on this form you ____ will ____ will not be required to notify us at least two work days prior to the date you intend to report to work.

____ 9. Upon timely return from leave, an employee will be placed in the same position that the employee held when the leave commenced, or an equivalent position with equivalent pay, benefits, and other terms and conditions of employment. The Company requires medical certification from the employee establishing that she or he is physically able to resume work as a condition of reinstatement from leave related to the employee s own serious health condition. 

____ 10. Any paid time off for which you may be eligible (for example, vacation, sick days, or personal time off that have been earned) must be taken first and will be applied to FMLA leave and will reduce the amount of FMLA unpaid leave days available to be taken.

This form is a sample only and the firm recommends that this form be tailored to an employer s particular work place.

Reprinted with permission. © CCH