The Common Law

Family and Medical Leave Act – what rights does the employer have?

What rights does my employer have to deny my leave request under the Family and Medical Leave Act?

In last week's column, the eligibility requirements for employees who want to request leave under the Family and Medical Leave Act was discussed. This week's column will discuss the employer's rights under FMLA. First, if an employee requests FMLA leave, an employer has the right to require that he or she provide documentation regarding the "serious health condition" or the "serious health condition" of the family member her or she is caring for, including medical certification from the doctor. An employer may also require periodic reports during the period of leave of the employee's status and intent to return to work, as well as "fitness for duty" certification upon return to work in appropriate situations.

If an employee fails to give 30 days notice for foreseeable leave with no reasonable excuse for the delay, the employer may delay the taking of FMLA leave until at least 30 days after the date the employee provides notice to the employer of the need for FMLA leave.

An employer may also require an employee to comply with the employer's usual and customary notice and procedural requirements for requesting leave. For example, an employer may require that written notice set forth the reasons for the requested leave, the anticipated duration of the leave, and the anticipated start of the leave. Therefore, an employee should be familiar with the employer's policies and procedures regarding the FMLA when he or she makes the leave request under the FMLA. However, failure to follow such internal employer procedures will not permit an employer to disallow or delay an employee's taking FMLA leave if the employee gives timely verbal or other notice.

The employer also has the right to require the employee to take all vacation and sick time before extending the leave time to unpaid leave. After all vacation and sick time has been used, the remainder of the 12-week leave period must be taken in unpaid leave time.

Employers are prohibited from discriminating against or interfering with employees who take FMLA leave. Stay tuned for next week's final article on the FMLA that will explain what you can do if you believe your rights for FMLA leave have been denied or you have been discriminated against or retaliated against because of your leave or leave request under the FMLA.

Please submit column suggestions, questions, and comments to Submission of potential topics does not create an attorney-client relationship, and any information submitted is subject to being included in future columns.

Marrs, Ellis & Hodge LLP,

The material in this column is for informational purposes only. It does not constitute, nor is it a substitute for, legal advice. For advice on your specific facts and circumstances, consult a licensed attorney. You may wish to contact the Lawyer Referral Service of Central Texas, a non-profit public service of the Austin Bar Association, at 512-472-8303 or

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