FMLA Administration: 5 Basic Steps

 

By Mark Feffer June 6, 2019
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​As your organization and headcount grow, so do the number of employment regulations and laws you need to follow. Among them is the federal Family and Medical Leave Act, or FMLA.

Simply put, the law kicks in when employees need time off to attend to family or medical needs. It requires certain organizations with 50 or more workers to provide eligible employees with up to three months of unpaid annual leave while maintaining their group health benefits.

Like any federal regulation, the devil is in the FMLA's details. Fortunately, a variety of resources are available to help you understand the act's requirements and administer it properly.

If you're new to HR, or if your company is approaching the 50-employee mark, it's smart to educate yourself about the FMLA and familiarize yourself with the basics. For example, the law applies only to employees who have worked 1,250 hours over the last 12 months and who need time off to attend to their own or a family member's serious health condition, for the birth of a child, or to bond with a newborn or newly adopted child. The law also includes military family leave provisions.

"If you can, prepare ahead of time," said Tara Rucci, principal consultant at Sprioc, an HR advisory firm in Philadelphia. "Know the requirements as opposed to trying to [implement a plan] as it comes up. Having the process in place will benefit your organization."

A good place to start learning is SHRM's FMLA resource page, which offers a number of articles, Q&As and other features. In addition, you can find a detailed Employer Guide on the Department of Labor's website.

When it comes to the FMLA, HR practitioners and other experts emphasize taking these five actions:

1. Follow Written Policies

The government requires organizations to follow the FMLA as soon as they reach specified thresholds involving headcount, location and other factors. Besides being exposed to regulatory or legal action, employers who don't follow the rules "could be on the hook for a hefty damage award including back wages, interest and penalties," explained Gillian Murphy, a partner in the Seattle office of law firm Davis Wright Tremaine.

To avoid exposure, develop written policies and have the proper forms available. Doing so will help you be consistent in how you notify employees of their rights, obtain information from health care providers and determine whether the FMLA applies in particular situations.

Also, be proactive about informing employees of their rights. "If an employee is absent more than three days, or an employer otherwise has information that suggests an employee may be dealing with a situation that's covered by the FMLA, the employer is required to notify the employee of his or her rights," Murphy said. 

2. Watch Out for Special Circumstances

On the surface, the FMLA may seem straightforward—at least in concept—but it contains a number of nuances that can trip up practitioners, warned Jennifer Currence, SHRM-SCP, president of the Currence Group, a Tampa, Fla.-based HR consulting firm.

As an example, she cited the FMLA's provision for military caregiver leave. Under this provision, employees attending to certain relatives who sustained injuries during military service can receive up to 26 weeks of unpaid leave in a 12-month period.

Another example involves airline flight crews. Where most employees can take up to 12 weeks of FMLA leave each year, pilots, co-pilots, flight attendants and flight engineers can take up to 72 days under specified circumstances.

3. Understand What's Covered … and What's Not

Because the FMLA doesn't apply to every instance of family or medical leave, it's critical to understand eligibility issues and follow mandated processes. Legalities aside, employees are sure to ask questions about your policies' direct impact on them, Murphy said. In addition, practitioners warn that some employees will inevitably try to game the system and pass personal time off as a qualifying FMLA leave.

For example, Murphy said, an employee may request two weeks of paid time off (PTO) to recover from surgery. That would preserve his 12 weeks of family and medical leave so he can attend to the baby that is expected to arrive a few months later. In the end, that employee will be absent for more time than the law requires. "Both the employer's PTO and FMLA policies should clearly address how and when time-off policies run concurrently," Murphy said. "Employers have a right to start the FMLA 12-workweek clock as soon as an employee is absent for a qualifying condition."

Many employers confuse the FMLA with the Americans with Disabilities Act, or ADA. That, too, can lead to incorrect application. Currence described the FMLA as an employee leave law and the ADA as an anti-discrimination law but acknowledged that "they might overlap." In addition, the ability to take ADA leave for a definite period beyond FMLA leave may be required, and state leave laws may provide even more rights to employees.

To determine whether PTO is really medical leave or vice versa, Currence suggested examining each situation in the context of both laws. SHRM's FMLA resource page and the Department of Labor's website can help, but Currence emphasized that "if you ever have a question that can't be answered by a valid source document, contact an employment attorney."

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

4. Pay Attention to Paperwork

Some employers may allow employees to take FMLA leave but fail to maintain the paperwork required to support each case. This can cause problems if complications or disagreements arise, said Rebecca Wrage, area director of human resources at Mid-Plains Community College in North Platte, Neb. If there's no physician's note that includes a return-to-work release, for example, a subsequent injury could result in an unnecessary workers' compensation claim.

Then, of course, there's legal liability to consider. Failing to follow the FMLA's requirements can result in employee claims with the Department of Labor and/or federal lawsuits, Murphy points out. In addition, she notes, when employers don't apply policies correctly, workers may get more time off than they're entitled to. That, in turn, can lead to business issues (such as understaffing or lost productivity) or the resentment of other workers.

Pay special attention to intermittent leave, which occurs when employees take off blocks of time separated by periods of work. For example, a parent may be out of the office on a Tuesday afternoon and Thursday afternoon in order to care for a child with a chronic condition. Or, an employee may work part time so she can receive specialized medical treatment. Murphy calls this "the hardest part of the FMLA to deal with."

The key to handling such situations is to address them consistently and by the book. Murphy said employees should notify their employer about their need for leave as soon as possible. To properly track the time off allowed, the employer should know why the employee is absent and, from time to time, should get updated documentation from the health care provider to confirm that the leave is still needed.

"The FMLA includes quite a few regulations that, when used consistently, can help an employer manage intermittent leaves more effectively," Murphy said.

5. Be Proactive

Finally, many practitioners believe educating employees about the FMLA benefits both sides. Wrage, for instance, regularly advises employees to take off only the amount of time that's actually needed. "Far too frequently, employees take the maximum amount of leave that they can even when it's not necessary," she said.

Since FMLA leave is calculated by year, not instance of use, employees who take 12 weeks all at once might find themselves in a bind if they need more time later that year. Even if their company allows them to take the additional time off, their job won't be protected by the FMLA. "While we would maintain a position for them up to a year, it may not be the position that they're currently in," Wrage said. "Many employees don't understand that."

Mark Feffer is a freelance business writer based in Philadelphia.

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