Important Guidance on Availing FMLA Leave | DCR Workforce Blog

Important Guidance on Availing FMLA Leave

Family and Medical Leave Act

As a wise person said, all working people work one shift at home and one shift at work. We all experience times when one of the two puts inordinate pressure on us. Unfortunately, pressure could come to bear when a loved one (spouse, son, daughter or parent) suddenly develops a health problem and ends up in a hospital emergency room, with us in tow! While an increasing number of jobs provide flexible work schedules, some require the employee to be present at the workplace. If you are a surgeon or anesthetist, there is no way you could contribute to the task remotely. In cases where we are unable to report to work on account of an illness in the family; can we just send an SMS to the employer and expect it to exempt from attendance under the Family and Medical Leave Act (FMLA)? Not according to the Fifth Circuit Court of Appeals!

For Employers:

  • An employee need not specifically mention FMLA when requesting permission to be absent from work.
  • If the employee’s leave request seems to indicate such a possibility, the employer will need to inquire if the leave request is a potential FMLA request.
  • . The court does, however, agree that an employer cannot be clairvoyant.

For Employees:

  • If you have texted a message to your supervisor requesting leave, permission to be absent or change in work rotation; make sure it is followed by a formal FMLA request, as per the specific leave policy guidelines.
  • If you have been unsuccessfully attempting to convince your supervisor to change your work schedule make sure that your FMLA request does not appear to be a poorly disguised effort to avoid that detested shift. Similarly, do not replace rejected leave requests with FMLA requests.
  • In either case, if circumstances warrant an FMLA leave request be sure to mention this up front to your supervisor, and make a formal request under the FMLA statutes. Do not assume that a casual mention of health issues at another point in time would somehow result in the supervisor knowing or understanding that you require FMLA leave.
  • Do not fail to alert your supervisor to the severity of the health-related condition, even if the details are not divulged.   This will help the supervisor establish appropriate contingency plans in your absence.

For Both:

  • Fully document all communication regarding a request for a leave of absence under the FMLA.  Do not delete messages or emails. Verbal agreements can result in misunderstandings.
  • Be sure that you provide written communication of your justification for requesting a leave.

For Temporary Employees:

Temporary workers are eligible for FMLA leave only if they have worked for that staffing agency for the twelve previous consecutive months immediately preceding the leave and have worked at least 1250 hours during that period. If a temporary assignment is converted into a permanent position, hours worked in the temporary role count towards the FMLA eligibility test of the required 1250 hours.

If their assignment expires or the position is eliminated during the leave period, the leave then comes to an end. The staffing agency that assigns a temporary worker to a client (or a secondary employer) serves as the Employer of Record, and consequently has the obligation to reinstate the worker when returning from FMLA leave. Unless the agency requests the client to reinstate the worker; the worker has no claim against the client of the staffing agency.

As is true with any employer, staffing agencies must notify workers of their rights under the FMLA, administer their leave, and continue to maintain health benefits that the worker may be receiving. To avoid potential liabilities associated with the government viewing a company as a joint employer, companies using staffing agencies to provide temporary workers should require explicit assurances that the agency adheres to all FMLA guidelines.

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.