Both employer and employee must meet certain obligations during the FMLA process. If the employer fails to do so, the employee may have an action for compensation, benefits lost, and/or equitable relief. If the employee fails to do so, the employer may be able to deny the request for FMLA.

Employer responsibilities

A covered employer is responsible for notifying employees about FMLA and whether they are eligible.  As soon as the employer becomes aware of the need for FMLA, the employer must issue a notice of eligibility, in writing, within 5 business days. If the employee is denied FMLA leave, the employer must provide a reason.

If the employee subsequently requests leave for a different reason and eligibility has changed, the employer must generate a new eligibility notice within 5 days of the new request. Along with each eligibility notice, the employer must give the employee a list of his/her rights and responsibilities under FMLA. The notice of rights and responsibilities must inform the employee that he/she is required to certify the FMLA leave and must specify the consequences of not doing so.  Instructions should also outline the employee’s right to continued health and other benefits and should include information about any premiums the employee will be responsible for paying during the leave

Employee responsibilities

Employees must provide information sufficient to put the employer on notice of the need for FMLA and allow for a determination of eligibility. Employers generally will not be liable if they are not given notice of any kind about the employee’s need for leave. If the leave is foreseeable (such as a scheduled surgery, for example), the request for leave should be made 30 days in advance of the anticipated leave date, otherwise notice may be as soon as possible and practical under the circumstances.

Whether the need for leave is for the employee or a covered family member, the employee must provide medical certification within 15 days of the leave request.  An employer may request additional medical opinions for the initial request, but must do so at the employer’s expense and cannot require additional medical opinions on a recertification.  An employer may require periodic recertification of the leave, but usually cannot ask for recertification more often than every 30 days, and possibly longer if the initial certification specified a longer expected duration. Employers may ask for recertification sooner than 30 days if (1) the employee has asked for an extension of leave, (2) circumstances have significantly changed since the leave was originally certified, or (3) the employer suspects that the employee is abusing FMLA. Employers must allow 15 days for the employee to provide a recertification.

If your employer has not been compliant with FMLA, or if you have been compliant but were denied FMLA anyway, you should seek the help of a competent employment and discrimination lawyer  trusts so that you can best determine if your legal rights have been violated.

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