Whirlwind of Change

By Steve Bates
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Whirlwind of Change by Steve Bates    HR Magazine, August 2001

When Kimberly Miller came down with the flu in December 1996, her doctor prescribed medication and asked her to see him again in a few days. When she returned to work after missing most of a week, she told her boss she wanted to treat the absence as time off under the federal Family and Medical Leave Act of 1993 (FMLA).

Three months later, AT&T fired Miller from her customer service position in Charleston, W.Va.

The company said she had a history of absenteeism and that her holiday-season case of the flu did not qualify as a serious health condition under the FMLA, which would have allowed her to take time off without prior approval.

Miller sued AT&T in federal court and won back pay plus attorneys fees (Miller vs. AT&T Corp. (No. 00-1928)). In May, the U.S. Court of Appeals for the 4th Circuit in Richmond, Va., upheld the judgment in a 2-to-1 rulingdespite the fact that the U.S. Chamber of Commerce and the AFL-CIO supported AT&Ts legal position. (For more details, see Facts of the Case on page 63.)

In light of such rulings, many employers are confused about what the FMLA allowsand worry that they may not be implementing the law properly.

Some are cracking down on what they believe to be abuses of the system. Others are granting FMLA leave for seemingly inconsequential medical eventssuch as the flu, colds, pinkeye, even ingrown toenailsto avoid bad relations with workers and to forestall potentially bitter and expensive litigation.

The FMLA is just exploding in terms of issues because of internal contradictions in the act and in the regulations, says Maria Danaher, an attorney with Dickie, McCamey & Chilcote in Pittsburgh.

The current confusion over the FMLA is more than a tempest in a teapot. It is an example of a larger disturbance that is brewing, with powerful forces arrayed on either side of interpretations of the law.

On one hand, the FMLA Technical Corrections Coalition, led by the Society for Human Resource Management, is lobbying Capitol Hill to fine-tune the law and curb inappropriate uses. On the other, groups, such as the National Partnership for Women & Families, are working to expand the law to give workers more opportunities to take time off.

The confusion that the law and regulations generate makes it all the more important that employers and HR professionals make sure they understand the rules and practices for administering the FMLA.

Be Prepared

The first step for any employer is to determine whether it is covered by the FMLA. (See Caught in the Act)

Although the FMLA has been on the books for several years, there is anecdotal evidence that many employers have not heard of the law or have not determined if and how it affects them.

Lynn Outwater, managing partner of the Pittsburgh office of the law firm of Jackson Lewis, says she is amazed at the basic questions managers ask about the FMLA at legal seminars. Theres an awful lot of employers who dont know about the statute.

George Daniels, owner of Daniels Manufacturing Corp. in Orlando, Fla., agrees. My feeling is that most companies dont have a clue, he says. It creates a good job market for HR professionals who understand it.

Lack of a plan for handling workers FMLA requests can be costly for employers. Kurt Chapman, HR director of Erickson Air-Crane, a helicopter manufacturer in Central Point, Ore., says the potential cost of FMLA litigation is great, especially in class-action suits.

Terri Hoehne, HR director of Aurora University in Aurora, Ill., says putting in the time to keep up with the latest FMLA trends is time well spent: Go to a seminar. Talk to other people who have been trying to administer it.

All HR people should become very familiar with the law and the nuances, says Libby Sartain, SPHR, CCP, who is former vice president of people at Dallas-based Southwest Airlines and the 2001 chair of the SHRM Board of Directors.

To keep current at Erickson Air-Crane, we had to create a companywide FMLA committee that meets once a month to discuss FMLA issues, Chapman says.

A crucial step in managing FMLA administration, Hoehne says, is to train managers and everyone who handles timesheets.

One way to motivate managers to take FMLA implementation seriously is to make sure they understand that they can be held liable personally for damages in FMLA lawsuits. Its one thing to see your companys name in the [legal] complaintits another thing to see your own name, says Outwater.

Outwater also recommends revisiting your policies. Make sure they are compliant and integrated, she says. Have an FMLA audit, if you will.

Get It in Writing

When an employee makes an FMLA claim, first make sure the worker has not used up his or her FMLA leave time, says Christine Howard, an attorney with Fisher & Phillips in Atlanta.

The FMLA requires employees to give 30 days notice of the need for leave, when possible. But often it does not happen that way, as with the flu that kept Miller out of her AT&T job for several days.

Even if the worker does not write or state the letters FMLA in making a request for time off, the supervisor should consider whether the request falls under the law, HR professionals say. Managers should designate in writingand at the outsetthat leave counts against the FMLA limit. When managers fail to do so, the leave might not count toward the 12-week annual limitwhich could entitle workers to an additional 12 weeks of leave, experts say.

Some experts say managers should give FMLA leave forms to each worker who seeks time off for any health-related reasonjust to be safe. Most people throw the form away, but at least they had the chance to designate an absence as FMLA up front, says Daniels.

If a request for leave does not appear to qualify under the FMLA regulations, inform the worker in writing as soon as possible, says attorney Howard.

If an employee requests intermittent leave, confirm that it is medically necessary for the worker or for the workers immediate family member care. Consider transferring the employee to another position that will accommodate the leave request, Howard suggests.

To minimize possible liability, managers should be particularly cautious with an employee who is seeking FMLA leave and is also facing discipline or termination over attendance matters, legal experts say. They urge thorough documentation of which absences qualify as FMLA leave and which do notand the reasons for such determinationsif unexcused absences are part of the reason for the potential discipline or termination.

In addition, experts note, provisions of state workers compensation laws and the federal Americans with Disabilities Act (ADA) that deal with employee absences should be considered when evaluating requests for FMLA leave.

A Second Opinion?

An employer can require a worker to get a medical professional to certify the employees condition. If an employer still doubts the validity of an FMLA request, he or she can require the employee to seek a second and even a third medical opinionat the employers expense.

The employer can select the health care provider for the second opinion. If the first and second opinions differ, according to Labor Department regulations, the medical professional for the third opinion must be approved jointly by the employer and the employee.

In addition, the employer can require periodic reports during the FMLA leave period to determine the workers status and intent to return to work.

However, the employer cannot make such inquiries to anyone other than the employee.

The employer, at his or her expense and with the employees permission, may have another health care provider contact the employees health care provider to clarify the information in the medical certification or to confirm the signature. The regulations state that this inquiry may not seek additional tests or information regarding the employees health condition.

Employees can use company-paid leave to cover some or all of the FMLA leave period, and employers can require that workers use their paid leave as part of their FMLA leave.

But with court rulings such as the one in the AT&T case, many employers are hesitant to challenge FMLA requests, HR professionals report. Requests for FMLA leave are increasing substantially as more workers learn their rights and hear of the creative ways in which other employees have obtained leave, some employers say.

And some claims certainly push the envelope of acceptable FMLA practices.

Julie Showers, vice president for labor relations at Northwest Airlines in Minneapolis, has seen her share of unusual FMLA requests:

  • In one case, she says, a doctor certified that a young person facing his first foray into the working world was suffering from Adjustment to Adult Life Disorderpurportedly a legitimate ailment that merited FMLA time off.

  • We had a husband and wife who submitted [FMLA medical certification] from a doctor on the other side of the country who had never examined them, Showers says.

  • For 18 months, two roommates each took exactly the same days off for migraines. Something like that stretches the credulity of everybody, says Showers. We have no dispute with the intent of the act, but it lends itself to abuse.

Sartain agrees that the law has changed the mindset of at least a portion of the American workforce. Before the law, when someone had a problem we worked it out. Now theres an entitlement mentality.

Here Today, Gone Tomorrow

The paperwork, particularly in situations where an employee uses FMLA intermittently, also generates confusion and irritation among HR professionals.

For example, irregular periods of FMLA leave are permissible for certain needs, such as recurring physical therapy. The law requires employers to establish a record-keeping system that isolates these periods of leaveright down to the smallest increment of time the payroll system can measure. That could be leave periods of 10 minutes or less.

Sometimes trying to comply with such a burden wears managers down, Showers concedes. Often, its easier to give the employee all of the requested time off.

To deal with such paperwork burdens, some employers elect to outsource FMLA management. Several companies provide such services, some in tandem with services that track other attendance matters.

But outsourcing isnt the solution for everyone. For example, Daniels says hell sleep better if he keeps his finger on the pulse of FMLA in his shop. You cant outsource liability, he says.

Meanwhile, Southwest Airlines has been testing FMLA outsourcing at one location for about six months and plans to expand it gradually to various departments and locations, Sartain says.

Outsourcing to a vendor with expertise administering the law has worked particularly well for Southwest on issues such as intermittent leave, she says. We're not medical professionals.

The test has saved the company money, but managers want to be sure it would work for other departments before expanding it, Sartain says.

A Moving Target

The Miller caseand a recent SHRM studyhave fueled renewed calls for congressional action to tighten FMLA eligibility.

The survey, which found that administering the FMLA is a greater burden than was reported in Labor Department surveys, is free to SHRM members, who can access it at www.shrm.org/surveys. (Non-members can purchase the survey for $49.95 by calling 1-800-444-5006.)

A bill introduced this year in the Senate, and one expected to be introduced in the House, would tighten the definition of serious health condition in the law and the regulations, and would attempt to reduce the record-keeping burden associated with intermittent leave.

The problems have been very well documented, says Deanna Gelak, executive director of the FMLA Technical Corrections Coalition, based near Washington, D.C. Its really time to make the changes. At press time, it was unclear whether any legislation would be enacted this year.

Until such changes occur, the best approach is to make sure every workplace has an FMLA expert on staff or available, and to apply policies and procedures consistently, experts say.

Its much less expensive to educate your people and your administrators than to fight a lawsuit, Danaher says.


Steve Bates is senior writer for HR Magazine .
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