Viewpoint: When Managing FMLA, Try Sincerity with a Touch of Empathy

Despite the scammers, most medical leave requests are for real needs

By Jeff Nowak © Franczek Radelet P.C. May 16, 2018
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When it comes to administering leave under the Family and Medical Leave Act (FMLA), I'll admit I've grown cynical and hardened about employee scams. It's not just the "medical leave" that turns out to require a beach vacation. Caring for your dying mother when, in reality, you need leave to serve a 60-day jail sentence for DUI? Yep, heard that one before.

Nevertheless, there truly is a need for federal and state leave laws, as many employees are dealing with legitimate medical conditions that render them unable to perform their job—and these people are counting on HR leave managers to help them.

Each spring, I'm reminded of this at the Disability Management Employer Coalition's (DMEC's) FMLA/ADA Compliance Conference, where FMLA and Americans with Disabilities Act (ADA) nerds convene to discuss leave and accommodation issues. This year, I co-presented an overview of key FMLA and ADA cases from the past 12 months (here's the PowerPoint).

For several days, we put cynicism aside and focused on practical and meaningful ways employers can support their employees when they or their loved ones deal with medical issues that keep the employee away from work—all while keeping business operations humming.

Here are few insights that I took from the conference:

1. Recognize that the far majority of our employees use FMLA leave appropriately and for real medical needs.
This should be our frame of reference when we are faced with an employee's request for medical leave or workplace accommodation. When you approach the situation with a level of sincerity rather than cynicism, you are more likely to be met with sincerity in return. To that end, let's not assume without any basis in fact that our employee is trying to misuse their leave of absence.

2. Be empathetic; the words, "How can I help you?" can go a long way.
When you communicate with employees, use words that show that you're on the same side. You want to help them take the time they need to get better and then return to work. Let your communications reflect this sincerity and empathy.

3. Treat all requests for leave as a request for a reasonable accommodation as well.
Each time an employee requests leave from the job because of a medical condition, the request should be analyzed through the lens of both the FMLA and ADA. Where employees need leave from work because of a serious medical condition, use it as an opportunity to engage with them to determine how to best address their situation to keep them engaged and at work. A leave of absence is only one tool to help maintain a productive and healthy workforce.

[SHRM members-only toolkit: Accommodating Employees' Disabilities]

4. Train managers to help you achieve the kind of workplace you're trying to cultivate.
At the conference, FMLA Branch Chief for the Department of Labor, Helen Applewhaite, identified several compliance problems that pop up regularly during DOL investigations. She noted that frontline managers often fail to recognize when an employee may need a leave of absence protected by the FMLA. Even worse, some make derogatory comments about an employee's use of FMLA leave.

Indeed, many frontline managers simply are not properly trained to recognize when an employee has provided sufficient facts to trigger the FMLA and to take appropriate steps to respond to the employee's request. In my experience, this is perhaps the single biggest problem for employers, as it creates easy liability.

There are far too many examples of employers who have paid out a lot of money because their manager said something foolish about FMLA, did not properly handle an absence covered by FMLA or did not follow FMLA regulations. Managers at all levels drastically increase your liability when it comes to FMLA when they are not trained in the FMLA. Training them now will immediately reduce your risk of liability—both in court and as a result of a DOL investigation.

Every once in a while we need this simple reminder: Be sincere, be empathetic and FMLA and ADA compliance will follow. Look at it as your Kumbaya moment.

Jeff Nowakis a Chicago-based partner and co-chair of the labor and employment practice at Franczek Radelet P.C. and author of the FMLA Insights blog, where an unabridged version of this article originally appeared. © 2018 Franczek Radelet P.C. All rights reserved. Republished with permission.

Related SHRM Article:

Train Your Managers on the FMLA, or You're Courting Trouble, SHRM Online Benefits, November 2017

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