Does the thought of an employee requesting medical leave give you nightmares? If so, you’re not alone.
Most HR professionals, regardless of whether they’re solo practitioners, consider the Family and Medical Leave Act (FMLA) one of the toughest workplace laws to administer. But it’s not an insurmountable task if you pay attention to detail and documentation.
The FMLA requires organizations with 50 or more workers to provide eligible employees with up to three months of job-protected, unpaid leave annually while maintaining their group health benefits. Employees are eligible for leave if they have worked for the employer for at least 12 months and for 1,250 hours during the previous 12-month period.
HR professionals need to learn the law’s basic administrative requirements, including rules for determining eligibility, tracking time and keeping records.
“You don’t want to learn this law as you’re working through a leave request,” says Paul Falcone, a human resource executive in Los Angeles. It’s important to educate managers, too, he adds.
Some companies provide initial training to managers, notes Diane Clabault, SHRM-CP, who writes about employment laws such as the FMLA, the Americans with Disabilities Act and state leave provisions for Wisconsin-based regulatory compliance publishing company J. J. Keller. “The problem is that training is rarely ever refreshed, so managers rarely are well-versed in its contents,” she says.
Supervisors need to be trained to recognize when an employee request for leave might fall under the FMLA, Clabault says, and to understand that they must contact HR when such a case arises.
Covered employers also must educate employees about their FMLA rights. Start by displaying a general notice or poster that explains the FMLA provisions and provides information on how to file a complaint with the U.S. Department of Labor’s Wage and Hour Division, which enforces the FMLA. This notice, as well as all other required FMLA forms, can be downloaded from the Labor Department’s website.
Have Clear Policies
The FMLA rights and responsibilities of both the employer and employees also should be included in the employee handbook presented during onboarding. Employees should be asked to sign an acknowledgment that they received the information.
In addition, make sure eligibility rules, as well as employees’ and the employer’s responsibilities, are addressed in the company’s written leave and benefits policies, and clearly explain how and when time-off policies can run concurrently.
The FMLA may apply in addition to or along with other federal laws, state laws, an employer’s policies or a collective bargaining agreement. An eligible employee may choose to take, or an employer may require the employee to use, accrued paid leave concurrently with FMLA leave. When paid leave is used for an FMLA-covered reason, the leave is FMLA-protected.
HR needs to make sure employees and supervisors understand how and when the leaves run concurrently. For example, an injured employee who is physically unable to work would be eligible for workers’ compensation and may also be required to use FMLA leave, says Karen Young, SHRM-SCP, founder and president of HR Resolutions, a consulting firm in Harrisburg, Pa. “That also means HR has the obligation to hold the job [open],” Young explains.
“It is also the employer’s right to ask employees to continue to pay their portion of health insurance premiums to keep that benefit upto-date,” she says. “If the employee agrees to and then doesn’t fulfill the obligation, it’s up to the company to address how to rectify that situation.”
A common misstep is not discussing in advance the policies that will be applied during the employee’s leave, Young adds.
“A pre-leave meeting between the supervisor, HR and the employee gives everyone the opportunity to go over the call-off policy, to learn when and how HR needs to be notified of changes in circumstances, and to address any other questions anyone might have,” she says.
Once an employee requests leave, FMLA rules call for a timely response.
“That’s the first bright-line task,” Clabault says. “The employer then has five business days to recognize the leave request and to send the employee the eligibility notice and the rights and responsibilities notice,” available from the Labor Department’s Wage and Hour Division.
Employees are obligated to provide enough information for the employer to know that the leave may be covered by the FMLA.
“When the employee receives the rights and responsibilities form, they have 15 days to get needed documentation back to the employer” so HR can determine whether the leave qualifies under the FMLA, Young explains. “And if HR doesn’t understand the diagnosis, they have the right to call the medical professional to ask for clarity.”
She advises employers to take advantage of this ability to seek clarification. “It’s an employer’s right to get medical certification or confirmation before approving a leave request,” she explains. “The employer also has the right to ask for recertifications and to request a second opinion from the company’s doctor or medical staff in cases that require intermittent leave.”
But not all FMLA leave warrants certification, Clabault notes. “Pregnancy, for example, is a serious health condition, but any time after recovery is considered bonding,” she says. “So asking for certification for the serious condition is permissible; asking for certification for bonding is not.”
Addressing Intermittent Leave
Administering intermittent leave is one of the most challenging aspects of FMLA compliance, experts say.
“The lack of understanding around employees’ rights and responsibilities lends itself to distrust and sometimes even abuse,” says Falcone, author of 101 Sample Write-Ups for Documenting Employee Performance Problems (Amacom, 2017).
To avoid this, trust but verify. “Ask the tough questions and be consistent in applying company policy to ensure everyone’s being treated the same way,” Young says.
“A common mistake made by HR is just taking the employee’s word for it” when it comes to tracking time off, she adds. “Don’t leave tracking [intermittent leave] to someone else; HR is best-suited for this to ensure things are done the correct way.”
And remember to keep lines of communication open with supervisors and employees.
“When circumstances change, HR needs to be informed,” Falcone says. “It’s OK for HR, the supervisor and the employee to meet together to discuss the employee’s needs. Transparency breeds trust.”
Young agrees. “Have honest conversations with your employees,” she says, explaining that you need to understand their situations so you can best support them.
Theresa Minton-Eversole is a writer based in Alexandria, Va.
Image by iStock.
What Events Qualify?
The federal Family and Medical Leave Act provides eligible employees with up to three months of job-protected, unpaid leave annually for the following qualifying events:
The birth or placement of a child.
The need to care for a spouse, child or parent with a serious health condition.
The employee’s own serious health condition, if it leaves the worker unable to perform essential job functions.
Any qualifying need related to the fact that a spouse, child or parent is a military service member on covered active duty or called to covered active-duty status.
The need to care for a related covered service member with a serious injury or illness.
Source: SHRM Toolkit: Managing Family and Medical Leave.