December 4, 2012
In a previous post (Assuaging Productivity Concerns with FMLA), we discussed the need for employers to put processes in place which protect them from possible abuse of FMLA by their employees, while shielding themselves from potential legal issues for interference with employees’ FMLA rights. A really challenging tight-rope walk, at the best of times. FMLA claims need to be handled with care but do not required the employer to bend over backwards and accommodate every claim in fear of the repercussions.
Once employers take the necessary care to ensure that their leave policies are fully compliant with the specific requirements of the FMLA, they can breathe easily. The next step would be to ensure that any policy violations are fully documented and recorded.
Some must-have elements of a leave policy:
- Ask employees to use up all their regular paid leave (like sick leave, vacation and other paid time off) before applying for FMLA leave.
- Set a requirement for advance notice ranging from 30 days to 1 or 2 days to avail FMLA leave – depending on the circumstances and practicability.
- Ask the employees to schedule their medical procedures and appointments outside work hours to the extent possible.
- For any injuries incurred on the job, the time-off may be counted towards FMLA.
- Employers can establish attendance rules which specify policies like termination for a ‘3-day no-call, no show’ and for missing 5 days without excuse – even if the employee claims it was under FMLA. The employer can also set regular call-in intervals; require advance notification of intent to return to work, and require that the employee apply for leave at least an hour before the employee’s scheduled shift except in extreme circumstances.
- Set a reasonable time limit for submission of supporting documentation such as a medical certificate, with penalties set for non-submission. Document delayed submissions, and establish a record of all communications to the employee about the non-submission of documents. Instruct employees to use the DOL’s WH-380e form only.
- Ignore calendar years when counting the FMLA period. Periods of FMLA eligibility are based on a 12-month period, not on the calendar year. Know how much FMLA leave was used by the employee already when the initial request comes in.
- Employers may seek clarifications on any incomplete portions in the submitted medical certification, establish direct contact with the doctor who provided it and even get the certificate authenticated through a second or third opinion if deemed necessary. All FMLA-related communication must by-pass the immediate supervisor/manager and be handled by leave administrators or HR professionals in the organization.
- Ask for medical certification, affirming that the employee is fit to return to work, when they return to the workplace.
- Set a clearly worded prohibition on working a second job while on FMLA leave.
The employer may retroactively provide an FMLA designation to health-related absences after carefully reviewing the leave record of the employee. Consistency is key – employers must always apply the leave policy in the same manner to all employees in the organization. They must not vary in the way it is administered. Employer must remember that a serious condition would have to involve more than three full, consecutive calendar days of incapacity plus two visits to a health care provider within a window of 30 days during the period of incapacity.
If it is deemed necessary to re-assign an employee seeking intermittent FMLA leave to minimize the adverse effect on operations; the employer must find a position with equal pay and benefits, and must re-instate the employee once the need for FMLA leave ends – if the employee returns to work. The re-assignment cannot create hardship for the employee or act as a punishment for asking for time off. Last – but not the least – employers must be aware of employee rights in case they are seeking military family leave as caregivers.
The content on this blog is for informational purposes only and cannot be construed as specific legal advice or as a substitute for competent legal advice. They reflect the opinions of DCR Workforce and may not reflect the opinions of any individual attorney. Do contact an attorney for advice specific to your issue or problem.