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FMLA Continues to Challenge Employers
 

By Allen Smith  7/16/2014
 

Family and Medical Leave Act (FMLA) compliance remains a perennial concern among employers, a July Littler survey report shows.

Nearly 70 percent of employers surveyed said they were concerned with employees abusing the FMLA and similar laws, and intermittent leave and controlling employee leave abuse were identified in a 2013 survey sponsored by the Disability Management Employer Coalition and Spring Consulting Group as the top two leave-related challenges for employers.

Case-by-Case Analysis

Part of what makes the FMLA difficult to apply, noted Megan Norris, an attorney with Miller Canfield in Detroit, is that “each FMLA request requires a case-by-case analysis.”

In addition, the FMLA overlaps with many other laws and policies, such as collective bargaining agreements, short- and long-term disability policies, workers’ compensation, absenteeism policies, and paid time off, she noted, “and it is hard to remember and consider all of them” every time a leave question arises, she said.

The intersection of responsibilities under the FMLA and the Americans with Disabilities Act (ADA) remains problematic as well, noted Aimee Delaney, an attorney at Hinshaw & Culbertson in Chicago. “I also think the evolving nature of mental and physical conditions that employers are being presented with makes each FMLA case different, and that makes it harder for employers to develop a more foolproof, standardized system of handling FMLA issues.

“More and more employees are presenting with conditions that fall outside of the ‘easy’ or more straightforward 12 weeks application of leave,” Delaney said. “The increased occurrence, for example, of intermittent leave needs is definitely a reason why FMLA leave remains challenging for employers.”

Notice

The employer should have clear policies about what can be covered by the FMLA and what the employee needs to do to give notice of upcoming leave, Norris added. “I like the policy to specifically state, in bold, ‘Calling in sick will not be treated as a request for FMLA leave,’ ” she remarked.

In a slightly different approach, Scott Fanning, an attorney with Fisher & Phillips in Chicago, said that, “it is important for employers to understand that after an employer has designated leave for a particular condition to be FMLA qualifying, the employee must reference either the condition or FMLA when later seeking FMLA leave for the same condition. At that point, employees may not simply call in and state that they are ‘sick’ to invoke the protections of the act.”

The employer must provide a notice of eligibility and rights and responsibilities within five business days of first learning of the need for leave, she explained, and the employer must give a designation notice once a decision has been reached about the request within five business days of getting the medical certification back.

Although it is not required to use the Labor Department forms for these two notices, “an employer is required to convey all of the pertinent information in those forms,” Norris said. “So, while the employer can adopt its own letter using its specific policies, it needs to make sure that all of the appropriate information is included.”

There is  “a tremendous amount of abuse” with intermittent leave, according to Tracy Billows, an attorney with Seyfarth Shaw. “Unforeseeable intermittent leave is a huge challenge for employers,” she added. “Employers have to allow eligible employees to take off unforeseeable time, regardless of the interruption to an employer’s business or the burden on the business. This is something employers simply have to learn to cope with as it is a requirement of the FMLA.”

But employers can establish some parameters: “Employers should set clear call-in rules and specify by when an employee must call in, to whom, and what information must be shared/left when calling in. If an employee repeatedly fails to do so, he or she may be disciplined—not for taking FMLA, but for not following company policy and procedure,” Billows noted. “Employers do not always avail themselves of these rules because they can be time consuming and require diligence and follow-up.”

More Problem Areas

According to Dana Connell, an attorney with Littler in Chicago, areas of the FMLA that trip employers up the most include:

  • How to handle an “in loco parentis” (acting in the place of the parent) situation, which he described as “a minefield.”
  • What to do with incomplete medical certification forms. If medical certification forms are incomplete, the employer must notify employees in writing, tell them what information is needed, and give them seven calendar days to correct the deficiency.
  • What to do at the end of the FMLA leave if the employee does not return.
  • How to handle domestic partners.
  • How the requirement that employers “not use the taking of FMLA leave as a negative factor in employment actions” applies, beyond not counting the days as absences, as days off may be relevant to employee sales quotas or employees on performance improvement plans.

“Companies with their backs to the wall in terms of FMLA usage are starting to take a closer look at FMLA leave applications and situations,” Connell added. “What I see in working with these employers is that they are finding that some portion of the requested FMLA leave that they might have previously granted actually does not qualify for FMLA. It may be that the condition is not really a ‘serious health condition’ or that the family member for whom leave is sought either does not have the right relationship to the employee or a ‘serious health condition’ that justifies FMLA leave.”

Increasingly, he noted, surveillance of those on FMLA leave is being used to curb FMLA abuse.

An employer may find it difficult to keep an individual’s performance separate from that person’s use of FMLA leave. The best way to address this is to keep performance issues at one level, such as with a manager, and FMLA issues with someone else, such as HR, noted Andrew Matzkin, an attorney with Mintz Levin in Boston. But, he cautioned, with the FMLA “it’s not one option or one size fits all.”

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.

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