Leave Law Spurs Policy Changes

Revision of the Family and Medical Leave Act creates opportunities for positive change.

By Diane Cadrain Mar 2, 2009

0309 Cover.jpgThe first significant overhaul of the Family and Medical Leave Act (FMLA) in more than a decade gives employers opportunities to improve FMLA administration. Among the changes, codified in U.S. Labor Department regulations, those with the most potential benefits for employers are those allowing organizations to require employees to:
Use companies’ customary notice procedures for FMLA leave.
Abide by existing rules for use of paid time off.

Notification Procedures
Under the changes, employers with customary leave-notification procedures may require employees to use those steps when intending to take FMLA leave. Before, employers couldn’t deny FMLA leave to employees who didn’t follow company notice requirements. Now, HR professionals can require employees to use the company notification procedure, including the requirement for timing of the notice, unless it is physically impossible for the employee to have access. “This change may provide a deterrent to employees who don’t give sufficient notice, because if they don’t, the leave may be unpaid,” warns Darren Reed, PHR, a Colorado consultant at an insurance company with 20,000 employees.

“If you don’t have a procedure, you could set one up now and enforce it,” advises Ellen McLaughlin, a partner with the Chicago office of the law firm Seyfarth Shaw. “It should name a specific position—not a person—to call. Before, you couldn’t designate a specific person—the employee could call [his or her] manager, and that would be considered a legitimate request for leave, even if you required the person to call HR.

“Think about whether to designate HR or the employee’s manager,” she continues. “HR isn’t there in the middle of the night, but the manager is. It could be confusing to employees to have two positions designated to take the call. The person who takes the call should know to ask questions designed to make sure the employee is properly designating the leave as FMLA leave. The employee has to refer to the FMLA or refer back to an original FMLA certification. Just calling in sick won’t be enough.”

Employees can still be permitted to call in before their start times, but the notice has to be reasonable, advises Sue Willman, a partner with Spencer, Fane, Britt and Brown in Kansas City, Mo. “Employers should base their time frames on the needs of the job. For most office jobs, 30 minutes would be sufficiently reasonable. For assembly-line work, one hour might be sufficient to give the employer the chance to get someone else on the line. But for jobs like transportation, fire, police, health care, in which staffing coverage is crucial, two hours makes more sense.”

Chana Anderson, SPHR-CA, HR director at San Diego retirement community Casa de los Campanas, is discarding old notice procedures and departmental variations and establishing one policy for most employees. Within departments, the policy will vary depending on the employees’ positions and shifts on weekdays, weekends or holidays.

Anderson’s company is also creating a form for all supervisors requiring information such as employee name, department, time of call, work schedule for the day, amount of leave and phone number where the employee can be reached.

“We won’t change our rule requiring employees to call within two hours of the start of their shifts, or change the person they call,” says Reed. “But now, the consequences are different—we can deny or delay FMLA leave if the person didn’t call in within the proper time frame, and the denial could possibly mean the person doesn’t get the FMLA protection for part or all of the time they are out.”

Paid-Time-Off Policies
Another change affects companies that require employees to use paid time off (PTO) for FMLA leave. Now, unless a union contract dictates otherwise, an employer can require employees using PTO for FMLA leave to follow the same rules that otherwise apply to requests for PTO.

Willman says, “If your company has a rule that PTO can be used only in eight-hour increments, and an employee wants to use it for two hours of FMLA leave, you have two choices.” They are:

  • Stand by your eight-hour rule and force the employee to choose between taking eight hours of FMLA leave paid with PTO, with all eight hours counted as FMLA leave; or taking two hours as unpaid FMLA leave and working the other six hours.
  • Waive the eight-hour rule and allow the employee to take two hours of FMLA leave paid with PTO and work the other six hours.

Applying a policy across the board without waiver allows the uniformity of using the same rule for FMLA and non-FMLA leave and forces employees to make conscientious choices, says Willman. One disadvantage of giving employees choices: “Abusers, in particular, may not care whether the time is paid or unpaid and may decide to take FMLA leave as unpaid so that they can use PTO later.” They might end up being absent more often

“You’ll get into problems if you’re not consistent,” warns McLaughlin.

“This change provides us with an opportunity to line [FMLA leave] up with our general PTO rules,” says Reed. “We’re planning a mass communication, primarily via the company intranet. We’ll change the general information on the intranet and the specific notice that we send out to employees [who] have applied for leave. Plus we’ll change the standard ‘leave template’ that ‘leave specialists’ use. We have about 20 leave specialists [who] manage all leaves of absence. We’ll soon be training them and other appropriate staff in the new rules.” The training will be given by staff attorneys and HR managers.

New rules require employers to make employees aware, via a Rights and Responsibilities Notice, of new requirements for use of leave. Much of the information required by the new notice form was required for the old form, but now the notice must include information about the changes, new conditions applying to substitution of paid leave and the consequences for failure to provide proper notification.

The author is attorney and writer based in West Hartford, Conn., and a member of the Human Resource Association of Central Connecticut.

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