6 Ways Managers Get into FMLA Trouble

 

June 18, 2018
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CHICAGO—If not trained carefully, managers can get your company into serious trouble by violating the Family and Medical Leave Act (FMLA).

Speaking at a concurrent session at the SHRM 2018 Annual Conference & Exposition, Matt Morris, vice president of FMLASource at ComPsych Corp. in Chicago, and Jeff Nowak, an attorney with Franczek Radelet in Chicago, identified six different ways managers drop the ball:

  1. They are "space cases" and fail to recognize the need for FMLA leave.
  2. They are "lazybones"; they are aware that there is a need for FMLA leave but don't alert HR.
  3. They are "oversharers," telling employees why they think it isn't a good time for leave to be taken.
  4. They are jerks to workers who are on FMLA leave.
  5. They badger employees on FMLA leave with work concerns.
  6. They are trouble-makers, such as managers who bully employees for taking FMLA leave.

[SHRM members-only toolkit: Managing Family and Medical Leave]

Managers get frustrated by leave issues, both intermittent leave and extended leave, said Dara Wilson, SHRM-SCP, HR leader—employment and employee relations with SSM Health in Madison, Wis., and an attendee at the Monday concurrent session. She said that explaining an employer's legal obligations can help.

Space Cases

Sometimes managers fail to recognize that FMLA leave has been requested. Employees don't have to say "FMLA" to request FMLA time off, Nowak noted.

Managers need to be able to distinguish between FMLA absences and ordinary sick days. In training on what constitutes a serious health condition, Nowak focuses on periods of incapacity of more than three consecutive calendar days and continuing treatment, as well as covered chronic conditions.

Nowak said managers should know that chronic conditions, such as back impairments, lasting less than three consecutive calendar days still might be covered.

Lazybones

Managers who know about FMLA leave requests should follow up with HR or a centralized third-party leave administrator, but sometimes don't, Morris said.

In one case, the son of an employee whose mental condition was so severe that the employee wasn't able to communicate contacted the employer on the employee's behalf about FMLA leave. The employer insisted that the employee call, told the son to stop calling and wrote up the employee for failing to meet its no-call, no-show policy. A court determined that the employer knew about the employee's serious health condition and upheld a verdict of nearly $300,000 in damages, Nowak said.

Oversharers

He noted that some managers share with employees that they think FMLA leave shouldn't be taken, even though it's a legal right.

In one case, an employee asked for FMLA time off for a hysterectomy, and her manager told her to read a book called No More Hysterectomies. Then, while the employee was on leave, the employee's partner was diagnosed with cancer. After the employee was laid off, the manager told her that it was a "blessing in disguise," as she otherwise wouldn't have time to care for her partner.

The Jerks

The jerk might say in performance reviews, e-mails or directly to employees that the reason for a demotion or firing is because the employee took FMLA leave, Morris observed.

These managers leave employers vulnerable to FMLA claims even when companies' cases are otherwise strong. He said that in one case an alcoholic employee was discharged for stealing, according to the company. But the manager said that the theft was "not the only reason" the individual was fired, implying that alcoholism was also a factor, which undermined the employer's defense.

Jerks sometimes disclose serious health conditions to co-workers. Nowak noted one case where an employer disclosed an employee's genitourinary condition to co-workers at a staff meeting and the employee's colleagues began ridiculing him about the condition. This disclosure violated the FMLA.

Managers should ask employees how the organization can help with the leave, which can help under both the FMLA and the Americans with Disabilities Act (ADA), Morris said.

Badgerers

Employers can't require employees to work during FMLA leave, Nowak cautioned. He said they are allowed to contact employees for such things as password access but cannot "require a ton of work."

Supervisors should communicate with HR if they are going to reach out to employees while employees are on FMLA leave, and they should keep any conversations with workers on leave concise.

Employees should not be required to come into work during FMLA leave, and any work must be minimal and done voluntarily, he emphasized. Document that the work was voluntary and ensure that the worker is compensated, he added.

Trouble-Makers

Trouble-makers might bully workers over FMLA leave and try to get employees discharged for exercising their FMLA rights, Morris noted.

HR should be on the lookout whenever a supervisor recommends termination and the FMLA or ADA might be involved. Even if discharge seems warranted by the facts presented by the manager, HR should ensure that a rogue manager is not tainting that evidence with unlawful motives, he cautioned.

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