Administrative Requirements of the FMLA

The FMLA requires employers to post notices at their facilities advising employees of their rights under the statute. Employers are also obligated to communicate employees’ FMLA rights to them in the employer’s handbook, if the employer has such a document, or otherwise as a written policy disseminated to employees when they are hired.

Employers are required to keep records relevant to FMLA leave and determinations as to whether employees were found eligible for leave or not, for at least three years.

  1. where an employee fails to certify that she is able to return to work after a serious medical condition, if the employer requested such certification before the employee went on leave
  2. where the employer can prove that the employee would not have continued to be employed at the time his leave ended, regardless of whether or not the employee had taken FMLA leave (for example, the employee’s job was abolished for economic reasons unrelated to the employee’s FMLA leave)
  3. where the employee unequivocally advises the employer that she does not intend to return to work after the leave
  4. where the employee obtained the leave by fraudulent conduct, for example, claiming a serious medical condition when he was not sick or injured
  5. where the employee is found to have violated a uniformly enforced employer prohibition against employees working at other jobs while she was on FMLA leave
  6. where the employee who took the FMLA is a key employee, defined as an employee who is in the top 10 percent of all employees in terms of the amount of pay he or she receives from the company

While on FMLA leave, employees are not entitled to earn or accrue additional benefits, such as seniority, vacation leave, or sick leave. This means, for example, that if an employer’s policy provides for employees to earn one paid sick day for every month she works for the employer, the employee will not earn additional sick days while she is off on FMLA leave. However, the FMLA provides that the employer must continue to provide group health insurance for an employee on FMLA leave throughout the period that the employee is not working. Only if the employee does not return to work following the leave may the employer attempt to recover health care insurance premiums that it paid on the employee’s behalf while he or she was on FMLA leave.