Notice Requirements, Leave, and Enforcement of the Family Medical Leave Act

Notice

The employer is required to keep and post a notice of the FMLA requirements in an open and obvious location for its employees to see. The notice should contain information about filing complaints if the employer fails to comply with the requirements of the FMLA. The information should also address issues regarding the employee’s rights and the employer’s obligations under the FMLA.

The employee should give the employer at least 30 days notice of the desire to take leave under FMLA. However, if the need for the leave is not foreseeable then the employee should give the employer notice whenever feasibly possible.

Once the employee requests FMLA leave, the employer is required to provide the employee with a written notice designating the leave under FMLA. The employer is entitled to make inquiries to the employee while the employee is on leave. The employer may also require the employee to check in with the employer during the leave.

Leave Status

The employee may take all 12 weeks of the FMLA leave at one time, may take it intermittently, or may take leave based upon a reduced work schedule. Workers’ compensation leave may run together with FMLA leave. The employer may also count pregnancy disability or maternity leave under the 12-week FMLA leave so long as the employer properly notified the employee of that fact. If the employee requested 12 weeks off and decided not to use all 12 weeks, the employee may return to work early. Under the FMLA, the employee is not required to take more leave than is necessary to respond to the original need for the leave.

Compensation

Under FMLA the employer is not required to pay the employee for the time taken for leave. The employee is permitted to use vacation or sick time while off under the FMLA and then would be entitled to compensation for that period of time.

Enforcement of the FMLA

The FMLA is enforced by the Wage and Hour Division of the U.S. Department of Labor. If the employer denied the employee FMLA leave, the employee may file a complaint with the Wage and Hour Division. The Wage and Hour Division will investigate the complaint in a prompt fashion to avoid any undue hardship to the employee. The employee is not required to file a claim with the Wage and Hour Division prior to pursuing potential legal remedies.

Under the FMLA the employee is also entitled to go to court and obtain an injunction to preclude the employer from withholding wages and benefits. If the employee belongs to a union, the employee and the union may file a private action against the employer to seek resolution of the matter.

If the employer fails to comply with the requirements set forth under the FMLA, the employee or the Labor Department may sue the employer.

Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.