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FMLA DECISION TREE

FMLA DECISION TREE. Is Employer Covered ?. 50 OR MORE EMPLOYEES IN THE UNITED STATES. FOR. 20 OR MORE WORK WEEKS IN CURRENT OR PRECEDING CALENDAR YEAR. NO. YES. DO NOT HAVE TO COMPLY WITH FMLA. MUST POST FMLA NOTICE (WH PUBLIC 1420). Is Employee Eligible ?

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FMLA DECISION TREE

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  1. FMLA DECISION TREE

  2. Is Employer Covered? 50 OR MORE EMPLOYEES IN THE UNITED STATES FOR 20 OR MORE WORK WEEKS IN CURRENT OR PRECEDING CALENDAR YEAR NO YES DO NOT HAVE TO COMPLY WITH FMLA MUST POST FMLA NOTICE (WH PUBLIC 1420)

  3. Is Employee Eligible? Does the employee work in the U.S.? HAS EMPLOYEE WORKED FOR EMPLOYER FOR A MINIMUM OF 12 MONTHS? HAS EMPLOYEE ACTUALLY WORKED FOR A MINIMUM OF 1250 HOURS IMMEDIATELY BEFORE LEAVE COMMENCES? ARE THERE 50 OR MORE EMPLOYEES WITHIN 75 MILES OF EMPLOYEE’S WORK LOCATION? NO? YES? EMPLOYEE IS NOT ELIGIBLE IS EMPLOYEE TAKING LEAVE FOR FMLA REASON?

  4. Is Leave for FMLA Reasons? BIRTH OF CHILD OR CARE OF NEWBORN CHILD? ADOPTION OR PLACEMENT OF CHILD FOR FOSTER CARE? [If for one of the above reasons, leave must begin within 12 months from birth or adoption, intermittent leave at employee’s option only if the employer agrees] BECAUSE OF “SERIOUS HEALTH CONDITION” WHICH PREVENTS EMPLOYEE FROM PERFORMING AN ESSENTIAL FUNCTION OF HIS/HER JOB? BECAUSE OF “SERIOUS HEALTH CONDITION” OF EMPLOYEE’S SPOUSE, CHILD OR PARENT? NO? YES? EMPLOYEE IS NOT ELIGIBLE WHAT IS SERIOUS HEALTH CONDITION?

  5. What is a “Serious Health Condition”? Is it an injury, illness or physical or mental condition that involves: INPATIENT CARE: REQUIRES AN OVERNIGHT STAY IN A HOSPITAL OR SIMILAR FACILITY, INCLUDING INCAPACITY OR TREATMENT IN CONNECTION WITH THE INPATIENT CARE OR CONTINUING TREATMENT: BY A HEALTH CARE PROVIDER OF A SERIOUS HEATLH CONDITION WHICH INVOLVES ONE OR MORE OF THE FOLLOWING: a) A PERIOD OF INCAPACITY OF MORE THAN THREE CONSECUTIVE CALENDAR DAYS AND SUBSEQUENT TREATMENT OR INCAPACITY RELATING TO THE SAME CONDITION THAT ALSO INVOLVES: (i) TREATMENT TWO OR MORE TIMES BY HEALTH CARE PROVIDERS, OR SERVICES ORDERED BY HEALTH CARE PROVIDER; OR (ii) TREATMENT BY HEATLH CARE PROVIDER ON AT LEAST ONE OCCASION WHICH RESULTS IN CONTINUING TREATMENT UNDER SUPERVISION OF HEALTH CARE PROVIDER. OR b) INCAPACITY DUE TO PREGNANCY OR PRENATAL CARE OR c) A CHRONIC CONDITION: INCAPACITY DUE TO PERIODIC VISITS TO HEALTH CARE PROVIDER FOR TREATMENT; AND CONTINUES OVER A PERIOD OF TIME; AND MAY CAUSE EPISODES OF INCAPACITY, RATHER THAN A CONTINUING PERIOD OF INCAPACITY OR d) A PERMANENT OR LONG TERM CONDITION: INCAPACITY DUE TO CONDITION FOR WHICH TREATMENT MAY NOT BE EFFECTIVE. OR e) MULTIPLE TREATMENTS: ABSENCE TO RECEIVED MULTIPLE TREATMENTS BY HEALTH CARE PROVIDER. NO YES EMPLOYEE NOT ELIGIBLE FOR FMLA LEAVE HAS EMPLOYEE ALREADY EXHAUSTED HIS/HER LEAVE?

  6. Has Employee Exhausted His/Her Leave? HAS EMPLOYEE TAKEN 12 WEEKS OF LEAVE IN ANY 12 MONTH PERIOD? 12 MONTH PERIOD MAY BE COMPUTED USING ANY OF THE FOLLOWING METHODS: A) CALENDAR YEAR B) ANY FIXED12-MONTH YEAR (SPECIFY:_____________) C) 12 MONTHS MEASURED FORWARD FROM DATE OF FIRST USE OF FMLA LEAVE D) ROLLING 12 MONTHS MEASURED BACKWARD FROM DATE OF FIRST USE NO? YES? EMPLOYEE NOT ELIGIBLE FOR FMLA LEAVE HAS EMPLOYEE GIVEN SUFFICIENT NOTICE?

  7. Has Employee Given Sufficient Notice? IS NEED FOR LEAVE FORSEEABLE? YES NO DID EMPLOYEE GIVE MINIMUM 30 DAY NOTICE PRIOR TO USE OF LEAVE NOTICE MUST BE GIVEN ASAP BY EMPLOYEE YES NO PROPER NOTICE GIVEN BY EMPLOYEE EMPLOYER MAY DELAY TAKING OF LEAVE UNTIL 30 DAYS AFTER EMPLOYEE GIVES NOTICE MAY EMPLOYEE TAKE INCREMENTAL OR INTERMITTENT LEAVE? HAS EMPLOYER GIVEN REQUIRED NOTICE?

  8. Has Employer Given Required Notice? HAS LEAVE BEEN DESIGNATED AS FMLA QUALIFYING LEAVE (PAID OR UNPAID) AND THE EMPLOYEE NOTIFIED WITHIN 2 BUSINESS DAYS OF LEAVE REQUEST IF FEASIBLE? EMPLOYER MUST NOTIFY EMPLOYEE ABOUT SPECIFIC OBLIGATIONS OF EMPLOYEE AND EXPLAIN CONSEQUENCE OF NOT MEETING THEM WITHIN REASONABLE PERIOD OF TIME [SEE OPTIONAL FORM WH381] NO YES LEAVE MAY COUNT AGAINST FMLA ENTITLEMENT LEAVE MAY NOT COUNT AGAINST FMLA LEAVE

  9. May Employee Take Incremental/Intermittent Leave? IS LEAVE FOR BIRTH, ADOPTION OR FOSTER CARE? NO YES INCREMENTAL, REDUCED SCHEDULE, INTERMITTENT LEAVE NOT REQUIRED BUT IS PERMITTED IF EMPLOYER AGREES IS LEAVE TAKEN FOR SERIOUS HEALTH CONDITION OF EMPLOYEE? IS LEAVE FOR THE SERIOUS HEALTH CONDITION OF EMPLOYEE’S SPOUSE, CHILD OR PARENT? NO YES INTERMITTENT, REDUCED SCHEDULE, INCREMENTAL LEAVE NOT ALLOWED IS THERE A MEDICAL NECESSITY FOR LEAVE? A) Employer may require employee to provide written certification from health care provider B) Employer may contact employee’s health care provider (with employee’s permission) to clarify or authenticate certification C) Employer may require 2nd and 3rd opinion at employer’s expense IF MEDICAL NECESSITY, INTERMITTENT OR REDUCED LEAVE MAY BE TAKEN WITHOUT EMPLOYER’S AGREEMENT FOR TREATMENT AND/OR RECOVERY FROM SERIOUS HEALTH CONDITION

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