Take our FMLA What Would You Do (WWYD)? Challenges quiz to test your FMLA knowledge. Each challenge will provide an FMLA situation and ask you what you would do in that situation. Relevant facts will not be intentionally hidden.
The challenges are also designed to help build your compliance confidence. The answers are based on the FMLA regulations at 29 CFR Part 825.
What would you do if Jo Employee came into your office and requested a week of FMLA leave for an absence from which she has already returned?
You see, about a week ago, Jo told Sully, her supervisor, that she needed some time off to care for her mom, who she had just learned had been involved in a car accident that very morning. This announcement came about two hours after Jo got to work. Being a caring supervisor, Sully told Jo to take the time off she needed.
A week later, when Jo returned to work, Sully told her that her absence would count as attendance points because Jo hadn’t provided the required three-day notice of the leave, as required by company policy. When Jo asked Sully about FMLA leave, Sully told her to talk to you.
Jo is now in your office asking about FMLA for the absence.
Jo Employee had a baby boy about six weeks ago, and she has recovered nicely. She would like to take more time off to bond with her baby but also return to work. She wants, therefore, to work only three days per week.
Sully, Jo’s supervisor, tells Jo that he would prefer that Jo either stay out for full weeks or return to work at full weeks, not work only three days per week. Such scheduling creates challenges.
Jo indicates that she will ask the company leave administrator (you) about this.
Therefore, Jo is now in your office asking whether she may take the rest of her FMLA leave (about six weeks’ worth) on a reduced schedule basis, working only three days per week. The six weeks’ worth of leave would last for months.
This morning, September 6, 2024, Jo stopped in your office and asked if she could take two weeks off to care for her son, who has surgery scheduled for mid-October. Earlier, Jo had asked Sully, her supervisor, if she could take the time off, and he sent her to you.
October is a busy time for the company, so time off requests are scrutinized.
You know that Jo began working for the company on February 3 of this year. She will have worked over 1,300 hours by mid-October when the leave is to begin. Her work location has about 126 employees.
Your company policy allows up to one week of PTO for employees who have not yet been at the company for a year. Jo has not used any of her PTO.
Yesterday, Jo notified her supervisor that she wanted to take some time off for elective weight loss surgery. The procedure will require Jo to be kept overnight in the hospital followed by about four weeks for recovery.
October is a busy time for the company, so time off requests are closely scrutinized.
You know that eligible employees are entitled to FMLA leave for serious health conditions, but you also know that some elective procedures are not serious ones.
Back on November 4, 2024, Jo stopped in your office and said she needed about a week off for a medical procedure scheduled the next week. You gave Jo an eligibility/rights & responsibilities notice highlighting areas important to Jo. You also gave her a certification form pointing out salient parts of the form that need to be completed, and that she needs to get the certification completed and back to you within 15 days (by November 19th).
The days go by and on December 2nd, Jo tells you that, while she gave the form to her doctor in early November, he began a 20-day vacation on November 7th, so she won’t be able to meet the November 19th deadline. She’s contacted the doctor’s office twice since she gave them the certification.
Fill out this form to find out how you did in the "What Would You Do?" Challenge and continue receiving monthly WWYD Challenges with a Leave Manager Trial.
Within five days of when an employee puts you (the employer) on notice of the need for leave, you are required to give the employee an eligibility/rights and responsibilities notice. You may (but are not required to) include a certification form.
"The employer" includes anyone working on behalf of the employer, including supervisors. Therefore, the company's FMLA obligations began when Sully learned of Jo's need for leave.
Answer #4 didn't address the fact that Sully appeared to need some FMLA refresher training. He should have notified you when Jo asked for leave, not when the leave ended.
The FMLA provides that employees have at least 15 days to provide a requested certification, absent extenuating circumstances. Therefore, employees might need more than 15 days, depending upon the facts involved.
If extenuating circumstances do not justify a delay in returning a certification, the employee has no FMLA protections after the 15-day window has closed and until a certification is provided. This is sometimes referred to as the "donut hole" certification provision. If an employee does not return a certification within 15 days, the only days the absences could be counted as attendance points would be during the donut hole.
Employees may use FMLA leave for birth, placement, and bonding intermittently or to work a reduced schedule but only if they and their employer agree.
Remember that pregnancy, delivery, and recovery are all serious health conditions. If employees need intermittent or reduced schedule leave due to these medical conditions, they are entitled to it. The certification should indicate this.
When employees are bonding with a healthy child, however, no one has a serious health condition, so no certification may be requested and, therefore, an intermittent or reduced schedule would be up to employer and employee agreement. Reference: 29 CFR 825.202(c)
Answer #1 is incorrect because employees are not automatically entitled to bonding leave on an intermittent or reduced schedule basis.
Answer #2 is incorrect because employment-related decisions should not be based on personal relationships.
Answer #4 is incorrect because the FMLA does not specifically prohibit employees from taking bonding leave on an intermittent or reduced schedule basis.
To be eligible to take FMLA leave, an employee has to meet three criteria:
Employees have to meet all three criteria. This challenge focuses on the first criterion — working for the company for at least 12 months. Reference: 29 CFR 825.110
Answer #1 is incorrect because Jo has not yet met the eligibility criterion of working for your company for at least 12 months. Therefore, she is not eligible to take FMLA leave. Therefore, you would not count the leave in October as FMLA leave.
Answer #2 indicates that you totally ignore the FMLA, but you are required to give Jo an FMLA eligibility/rights & responsibilities notice, informing her that she is not eligible to take FMLA leave and why (she hasn't worked for the company for at least 12 months). Reference: 29 CFR 825.300(b)
Like Answer #2, Answer #3 doesn't address the FMLA at all, so it, too, would not be the correct answer.
The determination of whether an employee has met the 12 months worked and 1,250 hours worked are made based on when the leave will begin.
The determination of whether an employee works at a location with at least 50 company employees within 75 miles is made based on when the employee puts you on notice of the need for leave.
Jo will not have worked for the company for at least 12 months until February 3, 2025.
Jo had an overnight stay in a hospital, which means she will have an FMLA serious health condition. The FMLA's definition of a serious health condition includes inpatient care (overnight stay) or continuing treatment. Reference: 29 CFR 825.113
Therefore, you would treat Jo's request as you would any other leave request and start the FMLA process.
Answers #2 and #3 have you denying the leave, which would risk a claim that you interfered with Jo's FMLA rights. She will have a serious health condition and will be entitled to take FMLA leave for the condition.
Answer #4 is incorrect because the FMLA does not have an undue hardship defense. The FMLA is an employee leave entitlement law. Employers may not deny leave due to undue hardship.
Inpatient care is one of the few straightforward provisions in the FMLA. If an employee (or family member) is kept overnight in a healthcare facility, employers can be confident a serious health condition is involved.
At the time employees put employers on notice of the need for leave, employers might not know whether the reason for the leave will qualify for FMLA protections. Only through starting the FMLA process may employers gather the appropriate information.
Employees have 15 days to get you a requested certification, absent extenuating circumstances. Jo did her part and gave her doctor the form, but she had no control over his vacation. She contacted the doctor twice in an attempt to help resolve the issue. This was an extenuating circumstance, and you would need to be flexible. Reference: 29 CFR 825.305(c)
Therefore, you would work with Jo to determine a new reasonable deadline. Denying Jo FMLA protections for any part of the leave could be seen as interfering with her FMLA rights. Because of this, Option #1 would not be the best answer, nor would Option #4. Option #3 is viable, but you would fare best to have the certification to help determine if the absence qualified for FMLA protections, and to have that documented evidence supporting such a determination.
If an employee is late with a certification with no justification for the delay, you may deny the FMLA protections after the 15-day window and until the employee gives you the certification. If the employee never gives you a certification, the leave is not FMLA leave, and you would deny the FMLA protections.
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