Assuaging Productivity Concerns with FMLA | DCR Workforce Blog

Assuaging Productivity Concerns with FMLA

Family and Medical Leave Act

In this age of information explosion, it always comes as a surprise when an employer faces penalties for violations of FMLA or overtime regulations. Look at the recent case of the Alabama Detention Center being penalized for terminating an employee who was on approved medical leave, subject to FMLA protection. One reason for such an oversight could be the employer’s overriding anxiety about loss of productivity and pressures with performance.

The FMLA provides an eligible employee the right to 12 weeks of unpaid, job-protected leave and continuing health care coverage on usual terms.  The leave may be taken all at one time or in installments, depending on medical advice and requirements. The employer cannot interfere with or prohibit the employee from an exercise of the right to FMLA leave:

  • Employers can’t deny leave or benefits to an employee if he/she qualifies under the FMLA.
  • A material adverse action from the employer could be in the form of a demotion, transfer, loss of benefits, cut in pay, letter of reprimand placed in the employee’s file or any other punitive act.
  • Employers must accommodate leave requests when limited advance notice is provided, as it is not always possible to foresee the need for FMLA leave.
  • An employee must notify the immediate supervisor of an upcoming absence.
  • Employers must provide adequate time off to any employee undertaking to adopt a child, as the process requires painstaking paperwork and time-consuming meetings. The employee must provide substantiating evidence with regard to the adoption effort as well the time required.

When employees abuse the FMLA, the employer ends up bearing the burden of loss in productivity and increased overtime payments to other employees. The only protection offered by the law to employers is the right to require medical certification to validate the FMLA claim.  Cases of chronic medical conditions like migraines, PSTD and many other instances are particularly difficult for employers, as these types of illnesses provide greatest opportunities for abuse.

Some of the burning questions that employers face are listed below:

  1. What if the employee is a marginal performer, while the temporary replacement (found during the employee’s absence) shows superior performance and all-round results? Can the employee be transferred into a different capacity in a different group or into a different position – without giving rise to claims of demotion and invoking protection from the Act for retaliation?
  2. What if the employer suspects that the employee applied for FMLA leave to prevent the possibility of being laid-off? There are documented cases of people taking on other jobs during these ‘FMLA leaves’ to supplement their income, or go on a holiday, and come back with the complete confidence that the bad economy is not going to deprive them of a job.
  3. If consecutive days of leave are not required by the illness, will it qualify for FMLA protection?
  4. What can an employer do if performance related disciplinary action leads to a surge in stress-related claims under FMLA?

The employer needs to be on solid ground when disallowing the claim of any sickness to FMLA protection. If and when the employer manages to prove an employee’s false claim, they may discipline the employee as they deem fit. Employers must demonstrate that the employee failed to substantiate their FMLA claim with legitimate medical documentation. The employer can even ask for a second and third opinion before granting leave; and the employee may be asked to provide reasonable advance warning when availing FMLA-related absences.

Let us look at what employers can do to mitigate such concerns – in our next post (Ten Rules to help Employers with FMLA Claims).

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.
Lalita is a people/project manager with extensive experience in operations, HCM and training and development across industries like banking, education, business consulting, BPO and information technology. She believes in a dynamic approach to life and learning as change is the only constant.