Once an employee is eligible, the FMLA is a set of employer duties on a short clock plus a restoration promise with one narrow exception.
Five business days, twice
- Eligibility Notice (prototype form WH-381): when an employee requests FMLA leave, or the employer acquires knowledge that leave may be FMLA-qualifying, notify the employee of eligibility within five business days, absent extenuating circumstances.
- Designation Notice: notify the employee in writing whether the leave will be designated and counted as FMLA leave within five business days of having enough information to determine that, absent extenuating circumstances. Only one designation notice is required per qualifying reason per applicable 12-month period.
The clock runs from the request or the employer's knowledge, not from the certification. If a supervisor hears about surgery on Monday and tells HR on Wednesday, the employer's knowledge has already started the clock - issue the notice, do not wait for paperwork.
Restoration and benefits
- On return, the employee gets the same position held when leave commenced, or an equivalent position with equivalent benefits, pay, and other terms and conditions. Not any vacancy, not a hiring preference, no waiting period.
- Intermittent leave is FMLA leave taken in separate blocks of time due to a single qualifying reason - defined by the blocks, not their duration.
- The employer must maintain group health plan coverage on the same conditions as if the employee had been continuously employed. Leave is not a coverage-ending event, there is no four-week limit, and the duty cannot be shifted to the employee.
The key-employee exception
A key employee is a salaried, FMLA-eligible employee among the highest paid 10 percent of all employees, eligible and ineligible, within 75 miles of the worksite. A covered employer may deny restoration - not the leave itself - if necessary to prevent substantial and grievous economic injury to its operations. Pay rank, not job title.
The worksite trap
A company with 600 employees nationally but only 31 within 75 miles of the worksite fails the eligibility test even for a five-year, 1,800-hour employee. Say so plainly and point her to other company leave policies.