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:
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.
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