FMLA Forms and More: Employee Notice and Certification Requirements Under the FMLA

To take FMLA leave, you must meet the notice and paperwork requirements.

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The Family and Medical Leave Act (FMLA) gives eligible employees the right to take time off to bond with a new child, recuperate from a serious health condition, care for a family member with a serious health condition, handle qualifying exigencies arising out of a family member's active military duty, or care for a family member who was seriously injured while on active military duty. (For more information on FMLA leave generally, see Taking Family and Medical Leave.) 

To take advantage of these leave rights, you must meet the notice and FMLA paperwork requirements the law imposes on employees. 

Notice Requirements

How much notice is required depends on why you need leave.

Foreseeable Leave

If your need for leave is foreseeable (for example, because you need time off for a long-scheduled surgery), you must give notice of your need for leave 30 days in advance, unless

  • The leave is not certain in time. (For example, if you have a parent who is terminally ill, you might know that you will need leave to care for your parent at some point, but not know the exact date when your parent's condition will require round-the-clock care.)
  • There is a change in circumstances. (For example, you might give notice of your need for surgery on a certain date, then learn that the doctor has moved up your operation.)
  • There is a medical emergency. (If, for instance, your child is born a month premature, you won't be able to give the notice that would otherwise be required.)

Unforeseeable Leave

Sometimes, employees won't know in advance that they will need FMLA leave. If the employee has a heart attack, the employee's spouse is injured while on active military duty (learn more about FMLA and military family), or the employee's child is injured in a car accident on the way to school, for example, the employee will need immediate time off. 

In this situation, the FMLA requires you to give notice as soon as is practicable under the circumstances. The regulations interpreting the FMLA say that employees should typically be able to give notice the same or the next business day after learning of the need for leave. 

Special Rules for Using Paid Leave

FMLA leave is unpaid. Employers may require employees, or employees may choose, to use their accrued paid leave during FMLA leave. However, the reason the employee needs leave must be covered by the employer's time off plan. For example, an employee may use sick leave to care for a family member only if that is an allowed use of sick days under the employer's policy. 

An employee must also follow the employer's usual notice rules to use paid leave during FMLA leave. For example, if an employer's policy requires employees to give one week of notice before using vacation time, that same rule applies to employees who want to use vacation time during FMLA leave. An employee who had a medical emergency and needed immediate FMLA leave would have to wait a week before using accrued vacation time, just like anyone else. However, the employee would be entitled to unpaid FMLA leave for the entire period of time off, including that first week. 

How to Give Notice

You may give notice of your need to leave orally or in writing, including by fax, email, or phone. If you are incapacitated or otherwise unable to give notice, your spokesperson may give notice for you. Of course, it's best to give notice formally, in writing, if you are able to do so. 

Generally, your notice must provide enough information to let your employer know that your leave may be protected by the FMLA. You don't necessarily have to mention the FMLA or use any special language. You must simply give enough facts about your time off to notify your employer that you are requesting time off for parenting, a serious health condition, or military family obligations. Again, if you know your rights under the law, there's no reason to be shy about asserting them. These rules are intended to protect employees who may not know whether their situation is covered by the FMLA -- or may not know about the FMLA at all. 

Find out everything you need to know about the FMLA with Nolo's book The Essential Guide to Family & Medical Leave.

Certifications

The FMLA allows employers to request more information from employees and health care providers, in the form of certifications. There are four types of certifications an employer may require:

  • A certification of the employee's own serious health condition, which provides information on the employee's medical situation, work restrictions, and so on.
  • A certification of a family member's serious health condition, which provides medical facts about the family member and information on how often and for how long the family member will require care. 
  • A certification of the employee's need for military caregiver leave, which provides information on the family member's medical situation, military duty, and so on, and
  • A certification of the employee's need for qualifying exigency leave, which gives information about the facts underlying the employee's request. 

Typically, both the employee and a health care provider must supply information to complete the form. 

If you will be required to submit a certification, your employer must let you know and give you a copy of the form you'll have to fill out. Once your employer requests a certification, you'll have 15 days to return it, unless it isn't practicable for you to meet this deadline (for example, because your doctor is unavailable).

Once you submit the form, your employer has certain rights to verify or clarify the information provided. Your employer might even ask you to get a second opinion at its expense, if it doubts your submitted certification that you or a family member has a serious health condition. If you find yourself in a battle with your employer over your right to take FMLA leave, you might want to consult with a lawyer, who can advise you of your rights and help you negotiate with your employer (see Do You Have an FMLA Claim Against Your Employer?). 

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