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The FMLA
Decision-Making Checklist

 Source: Personnel Policy Manual

*Family and Medical Leave Act

If Yes:

If No:

Has the employee submitted a written request for leave which meets the employer’s required procedures for requesting a leave, or has the employee requested leave as soon as possible?

Continue

Contact employee to discuss: continue

Has the employee worked at least 12 months (not necessarily consecutively) and worked at least 1,250 hours in the previous 12-month period? Is the total number of employees employed within 75 miles of the employee’s worksite more than 50?

Continue, employee is eligible for FMLA leave

Stop, employee is not eligible for FMLA; consider under other leave policies and notify employee that not entitled to FMLA

Has the employee used less than 12 weeks of FMLA leave during the last 12 months?

Continue

Stop, employee is not entitled to additional FMLA leave; consider under other leave policies and notify employee that not entitled to FMLA

Reasons for Leave

If Yes:

If No:

Is the employee requesting leave because of the birth of a child, adoption of a child, or placement of a foster child or Is the employee requesting leave because of a serious health condition or to care for a spouse, child, or parent who has a serious health condition?

Continue

Stop, this is not FMLA leave; consider under other leave policies and notify employee that not entitled to FMLA

If the leave requested is because of birth, adoption, or foster child placement, did the employee provide at least 30 days notice, or if leave was not foreseeable, was notice provided as soon as possible?

Request proof of birth, adoption, or placement if verification needed; continue

You may delay leave; seek advice from counsel

a. Make a reasonable effort to schedule any planned treatment so as not to unnecessarily disrupt the employer’s operations? and

b. Provide at least 30 days notice or, if the need for leave was not foreseeable, as soon as possible?

Continue

You may delay leave; seek advice from counsel

If the leave requested is because of the serious health condition of the employee or the employee’s spouse, child, or parent, has the employee provided medical certification before the leave, or if the need for leave was not foreseeable, within 15 days or as soon as possible (use Department of Labor Form WH-380 or equivalent)? See free download offer on this page.

Continue or, if doubt validity of certification, request second opinion

You, may delay leave; seek advice from counsel

Have you notified the employee in writing that the leave has been designated as FMLA leave (use Department of Labor Form WH-381 or equivalent)?

See free download offer on this page.

Continue

Do immediately, continue

Period of Leave Time Allowed under the FMLA

If Yes:

If No:

If the leave requested is because of birth, adoption, or foster child placement, has the employee requested leave in a single block of time, such as 8 weeks? (Note: leave requested for this purpose may be taken in less than full-week or full-day increments, intermittently or on reduced leave schedule, if the employer agrees. If employer policy requires, all paid personal and vacation days must be used during any otherwise unpaid portion of the leave.)

Grant up to 12 weeks per 12-month period; continue

Discuss work schedule and possible alternative jobs during intermittent or reduced leave; continue

If the leave requested is because of the serious health condition of the employee or the employee’s spouse, child, or parent, has the employee requested leave in full-week increments? (Note: leave requested for this purpose may be taken intermittently or on reduced leave schedule without the employer’s permission when medically necessary. If employer policy requires, all paid sick, personal, and vacation days must be used during any otherwise unpaid portion of the leave.)

Grant up to 12 weeks per 12-month period; continue

Discuss work schedule and possible alternative jobs during intermittent or reduced leave; continue

If the leave is being taken on an intermittent or reduced schedule basis, is there an available alternative position for which the employee is qualified which better accommodates the recurring need for leave?

Employer may transfer employee temporarily; continue

Continue

Benefits while on Leave

If Yes:

If No:

Is the employee covered by the employer’s health plan?

Maintain existing coverage

No health benefits required

Is the employee eligible for workers’ compensation or other disability benefits provided by the employer?

Employee may not use paid sick, personal, or vacation days except during any waiting period

Employer may require use of paid time off

Active Leave Period

If Yes:

If No:

Has employer contacted employee after 30 days of leave to confirm expected return dates and to ask if the employee intends to return to work?

Continue

Contact the employee; continue

Has employer learned of any information to call the need for leave into question?

Contact employee to determine continued need for leave; if employee is on medical leave, request medical recertification

Continue

Has the medical certification expired?

Contact employee to determine continued need for leave; request medical recertification

Continue

End of Leave Period

If Yes:

If No:

Did the employee return to work within the annual 12-week maximum allowed? (Note: if the employee has not used the entire 12 weeks allowed, he may use any remaining FMLA leave later in the same 12-month period.)

Continue

Contact the employee to find out status of the leave; continue

If the employee is among the highest compensated 10% of employees employed by the employer:

a. Will restoration to the previous job cause great economic injury to the employer?

b. Has the employer notified the employee it will deny restoration on this basis at the time the employer determines economic injury will occur? And

c. Has the employee failed to return to work upon receipt of the employer’s notice?

Restoration to the job may be denied; seek advice from counsel

Continue

If the employee was on leave for his own serious health condition, has the employee provided certification from his health care provider that he is able to return to work without restrictions? (Note: employees on leave to care for a newborn or newly placed child or seriously ill parent, spouse, or child do not have to provide any certification.)

Continue

Employer may delay reinstatement until receive certification

If the employee did not return to work within the 12-week period, does the employee have a disability covered by the Americans with Disabilities Act?

Obtain medical certification regarding the disability, consider extending leave as an accommodation

Continue

If the employee did not return to work within the 12-week period, is the employee covered by workers’ compensation?

Continue

Employer may terminate according to other leave policies; seek advice from counsel

Does state law require reinstatement after workers’ compensation leave?

Comply with state law

Employer may terminate according to other leave policies; seek advice from counsel

FREE FMLA Downloads

Want more information on the family & Medical Leave Act? 

Download Personnel Policy Services' Special FMLA package:

The FMLA - 10 Frequently Asked Questions (cover serious health conditions and medical certification)

Certification of Health Providers
(Form WH - 380)

Employer Response to Employee Request for FMLA Leave (Form WH 381)

Use these tools for quick answers to FMLA questions. Click HERE

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