Employers and employees alike often are stymied by the administrative complexity of the Family and Medical Leave Act (FMLA) process, including both the application for and implementation of its leave provisions.
In an attempt to clarify the processes associated with the FMLA, the Department of Labor (DOL) on June 27, 2012, issued a 20-page summary titled “Need Time? The Employee’s Guide to the Family and Medical Leave Act.”
While the booklet
is directed primarily to employees, with flowcharts and Q-and-A sections with titles like: “What Can the FMLA do for Me?” and “How Do I Request FMLA Leave?” it also provides employers with a roadmap of the process that the DOL is likely to use when a case comes before it that includes a claim of FMLA interference or retaliation.
For instance, the booklet begins with the question, “Am I Eligible for FMLA Leave?” and a flowchart that walks through clearly worded questions, each requiring a simple yes-or-no response, to allow an individual to understand the requirements for eligibility for FMLA leave.
It then defines the “serious health conditions” for which an employee may request FMLA leave. Unfortunately, in its attempt to make the booklet as succinct as possible, the DOL has left out some of the nuances that courts have woven into their interpretation of the FMLA. For instance, the wording of the “serious health condition” section may be somewhat confusing on the issue of whether a three-day absence is sufficient, and whether that absence must include a visit to a medical provider, in order to qualify as “serious.” However, generally, the DOL has summarized the FMLA’s provisions in an understandable, user-friendly manner.
The section titled “The FMLA Leave Process” is especially valuable to employers, because it is a step-by-step guide that includes both the employer’s obligations and the employee’s responsibilities for successfully navigating the FMLA leave application process, and sets forth the time limits for responding to an employee’s request or certification information. In addition, the DOL’s explanation of the required medical certification may actually benefit employers who often fail to provide specifics in their certification request and then may have to follow up when an employee provides insufficient medical information.
While employees and employers both often shy away from governmental publications, assuming perhaps that the language will be convoluted or the information will simply be a self-serving summary of a particular law or regulation, this booklet does not fall into either category, and is worth reviewing. For employees, the publication provides a clear and concise summary of the FMLA’s provisions; for employers it explains exactly what the DOL believes the process to be, and how employers should be implementing it. Maria Greco Danaher is an attorney with Ogletree Deakins in Pittsburgh.