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Managers Surprised by Breadth of FMLA’s Coverage
 

By Allen Smith  8/14/2014
Migraine headaches, back pain, influenza: Managers often are surprised that conditions such as these can be covered by the Family and Medical Leave Act (FMLA), management attorneys say.
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“Front-line supervisors have to receive some training about the FMLA, if for no other reason than to [enable] them to identify when the FMLA might be in play so that they can get help from professionals with training in application of the law” noted James Hermon, an attorney with Dykema in Detroit.

That doesn’t mean soup-to-nuts training. “It is unrealistic—and in many cases undesirable—to train every supervisor about the nuances of the FMLA, particularly given the complicated definition of a ‘chronic or serious health condition.’ Supervisors can, however, be educated about ‘red flags’ that result in them consulting a human resources professional to gather additional guidance on how to address a particular situation,” Hermon stated.

“Managers often think of the FMLA as a law that comes into play only when an employee is getting ready to take a maternity leave or when they have a debilitating illness requiring an extended hospital stay. Those are obviously scenarios where the FMLA is implicated, but the act provides much greater coverage than that,” he said. “Any chronic condition, such as asthma or diabetes, that requires a continuing course of treatment can trigger FMLA coverage, as can mental illnesses, such as depression or anxiety. Those types of health conditions often require intermittent leaves of absence, which many managers find to be particularly disruptive or subject to abuse.”

Hermon added that, “The idea of an employee being able to call in whenever he or she self-reports that they are suffering from a migraine or back pain is simply foreign to many managers who are focused on trying to meet productivity targets or satisfy customers. They see chronic conditions that result in unscheduled intermittent leave as likely evidence of malingering, rather than an exercise of FMLA rights.”

“Just a few days ago, I spoke to a vice president of an organization who was frustrated that an employee with migraines was constantly missing work,” said W. Jonathan Martin II, an attorney with Constangy, Brooks & Smith in Macon, Ga. “The VP was shocked at how generous the FMLA was toward unscheduled absences.”

Simplifying Definition of ‘Serious Health Condition’

Another point of confusion for managers is how multifaceted the definition of “serious health condition” is. To try and keep it simple, Martin said when he conducts management training he tells supervisors, “If the employee or a family member is in the hospital, if the employee misses more than three consecutive days of work, or if the employee has a pattern of being absent for the same health condition or for a family member’s health condition, call HR ASAP!”

“A frequent complaint from managers is that an employee who calls in sick does not provide sufficient information for the manager to determine whether the absence is FMLA-qualifying,” said Alicia Sienne Voltmer, an attorney with Ogletree Deakins in Dallas. “This is particularly true where the employer has an attendance policy that allows employees to leave messages or send e-mails regarding absences.”

Voltmer noted, “Many employees do not wish to disclose specific information about their health, and simply report they are sick and unable to come to work. When this occurs, a manager cannot, for example, discern whether the employee has a simple cold or a full-blown case of influenza.”

Managers don’t know how much follow-up information they can seek and don’t always realize they need to involve HR “to provide guidance and support to managers faced with vague information about an employee’s repeated or prolonged absences,” Voltmer said.

Frank Alvarez, an attorney with Jackson Lewis in White Plains, N.Y., said he recommends companies consider adopting “a bright-line, three-day rule—meaning they automatically require eligible employees to provide medical certifications clarifying whether absences due to illness lasting more than three consecutive calendar days are FMLA-qualifying.”

As far as simplifying the definition of “serious health condition” for managers, Alvarez said he likes to focus training on two categories of serious health conditions that seem to be misunderstood the most: chronic serious health conditions and pregnancy. “Managers must thoroughly understand that any period of incapacity associated with these two categories of serious health conditions is covered,” he said. “If managers get that point, you are on your way.”

He added, “Sometimes you can see the light bulb go off in their heads, as if they are saying to themselves, ‘Now I get it, “seriousness” has nothing to do with whether FMLA applies!’”

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

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