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The statute is notoriously complex, but these tips will give you—and your employees—peace of mind.
Jessica Hirshhorn knows a lot more about the Family and Medical Leave Act (FMLA) than most people. A recently retired orthopedic surgeon in Bethesda, Md., she routinely cared for patients who needed time off work to recuperate from injuries and other debilitating conditions or to care for family members in need. She handled the voluminous paperwork their employers required when granting leave.
She also took FMLA leave herself on three separate occasions.
“There was the time I needed foot surgery and didn’t have enough sick leave to cover the time I’d be out,” she recalled. Not long before that, she took time off to care for her husband after he had knee replacement surgery—twice. “I’m really not sure what I would have done if FMLA leave wasn’t available to me. I might have just had to quit my job.”
Hirshhorn is one of millions of workers who have used the FMLA to balance the competing demands of work and health needs. Signed into law by former President Bill Clinton in 1993, the law generally requires employers to grant up to 12 weeks of unpaid leave each year to individuals recovering from a medical condition, caring for sick family members, or following the birth or adoption of a child under the age of 18. The law applies equally to male and female employees and defines a “son or daughter” loosely to include a biological, adopted or foster child; a stepchild; and a legal ward or a child of a person standing in loco parentis.
The act covers about 60 percent of U.S. employers—including private-sector companies with 50 or more employees, and public agencies and schools regardless of the number of people working there—but not all workers at these entities are eligible for time off under the FMLA. To qualify, a person must have been employed with his or her company for at least 12 months and must have worked a minimum of 1,250 hours during the 12-month period immediately before the leave (an average of about 24 hours a week).
‘Be sure to enforce your procedures uniformly for all types of leave.’Lisa Berg
In the law’s first two decades, employees used it more than 100 million times, according to the U.S. Department of Labor. And despite the widespread concerns of employers and management groups leading up to the act’s passage, it has been good for workers and companies, too, allowing the return of experienced workers once their need for FMLA leave passes.
But there’s a catch. Even after 25 years, the rules—particularly those allowing time off to be taken sporadically or with little or no advance notice—remain cumbersome and confusing. Managers often struggle to cover for people who take extended leave. And the risk of being sued by an employee claiming to have been unfairly denied leave or punished for taking it keeps many HR professionals on edge.
But as tricky as the compliance issues can get, it’s important not to lose sight of why the law exists. The human toll of a health challenge can be enormous. That’s why it’s vital for HR to be discreet and supportive of employees who need FMLA leave.
To help you get a handle on the most vexing issues, here is a primer for complying with the FMLA.
Every company covered by the FMLA needs a written policy that is clear, concise and up-to-date. At a minimum, according to Miami-based employment attorney Lisa Berg with Stearns Weaver Miller, it should address:
Also, be sure to specify whether your organization requires that paid vacation, sick or personal time be used concurrently with unpaid FMLA leave. You can mandate that employees comply with your customary procedures for requesting time off, even if the leave is for unforeseeable circumstances. Therefore, Berg says, “be sure to enforce your procedures uniformly for all types of leave.”
Your policy should also address what happens if a person can’t return to work when his or her leave is up and needs authorization to take additional time off. Add a sentence or two informing workers what steps they should take, including who they should contact. Given that some courts (and the Equal Employment Opportunity Commission) have held that, in certain cases, leave may be an accommodation under the Americans with Disabilities Act (ADA), you’ll need to explain that you will administer the FMLA in accordance with the ADA, Berg says.
While there are many templates and guides aimed at helping HR shape an FMLA policy, you should always run the final product by legal counsel. Off-the-shelf and generic tools may be dated, overly simplistic, or inconsistent with your other leave policies and applicable state laws.
Case law pertaining to the definitions of “qualifying condition” and “serious health condition” under the statute is evolving. Some courts have ruled against workers who sued after being denied time off for postpartum depression, food poisoning, ingrown toenails, rectal bleeding, gastroenteritis and upper respiratory infection. That said, if your business leaders decide they want to grant leave for those conditions, they are free to do so. If there is any chance that a medical condition might meet the FMLA’s definition of a serious health condition, give employees the notification and certification forms and let their health care provider make the determination.
HR professionals aren’t the only ones who must understand the FMLA; managers also need training since they are often the first to hear when an employee is ill. While supervisors don’t have to notify HR every time someone calls in sick, a properly trained manager will know when an illness might signal a qualifying event and can start the process for tracking leave.
In particular, supervisors must understand how to respond to FMLA time-off requests without violating employees’ rights or the law’s anti-retaliation and anti-discrimination provisions. (Hint: Managers outside of HR probably don’t know it’s a bad idea to turn someone down just because their leave would come at an inconvenient time for the company. In fact, refusing a request on those grounds could bolster an individual’s claim of illegal interference with FMLA rights.)
Line managers also need to know that, in some instances, leave beyond the 12 weeks available under the FMLA may be a legally required accommodation under the ADA.
It’s against the law for supervisors to give employees “absence points” or penalize them in other ways for being out on FMLA leave, advises Ellen Bravo, co-director of the advocacy group
Family Values at Work in Milwaukee. FMLA regulations state that time off cannot be used as a negative factor in employment actions.
A recent case in a Massachusetts federal court underscores the importance of manager training. Boadi v. Center for Human Development Inc. involved a woman who was fired for being out of work during a hospital stay, even though her son called her supervisor to explain the absence. The jury found that the discharge interfered with the employee’s FMLA rights, and the court awarded her $142,000 in damages for lost pay and benefits.
The court also stated that the organization’s management did not act in “good faith and with objective reasonableness.” For example, no one representing the employer sought legal counsel, inquired as to whether the son’s phone call could be considered sufficient notice under the FMLA or asked about the employee’s condition. For those reasons, the court granted an additional $142,000 in damages to the employee.
The takeaway is that failing to train managers could hurt your bottom line—so make sure you bring supervisors up to speed.
The number of workweeks of leave a person can take in a 12-month period
FMLA by the Numbers
Approximate percentage of U.S. employers covered under FMLA
Amount awarded to a Massachusetts plaintiff who sued her company for interfering with her FMLA rights after she was fired for absenteeism during a hospital stay
How many times workers used FMLA during its first two decades of existence
[SHRM member-only toolkit:
Managing Family and Medical Leave]
The vast majority of employees who request FMLA leave likely have a legitimate need, but some people seek to exploit the statute.
Take the case of the Dallas marketing director who left work due to a panic attack days after receiving a performance improvement plan, according to court records. A couple of weeks after that, she was spotted at a Beyonce concert—in her employer’s corporate skybox. Under HR’s direction, she was fired for performing poorly at work, attending the concert and failing to respond to her boss’s inquiries. The court found that the employer was well within its rights to terminate because of honest suspicions about FMLA abuse.
To discourage such abuse, closely review an employee’s FMLA medical certification. “Employers all too often accept vague and ambiguous information supporting the need for leave,” says attorney Jeff Nowak, a lawyer at Franczek Radelet in Chicago. “If things are unclear, don’t be afraid to ask for clarification on medical facts”—particularly those supporting the need for leave, and the frequency and duration of absences. Managers have the “right to know the basic medical reasons why an employee cannot work and for how long and should insist upon information.”
When someone requests open-ended leave, ask for additional information. If the details still aren’t clear, consider telling the worker to provide clarification from his or her physician about the need for time away from work. “When an employer pushes back on vague certification or leave that is taken inconsistently with what has been certified, it sends a message that the employer takes FMLA administration seriously and will guard against leave abuse,” Nowak says.
If you are concerned that an employee is abusing intermittent leave—for instance, to extend the holidays—require the individual to recertify and to ask his or her doctor to analyze the pattern of absences. Is the time off consistent with what would be expected for that medical condition?
‘If things are unclear, don’t be afraid to ask for clarification on medical facts.’Jeff Nowak
“This can be a particularly effective tool for employers to ensure their employees are using FMLA leave legitimately,” Nowak says. Sometimes doctors simply rubber-stamp their patients’ need for time off. “But what I find is that this exercise encourages candid conversations between the physician and employee about the proper use of leave because of a medical condition.”
Another way to discourage unwarranted time off is to adopt a policy that requires workers to use accrued paid time off concurrently with unpaid FMLA leave. “Employees are less likely to abuse intermittent FMLA leave if they are required to use up their vacation time each time they take leave,” Berg says.
Be on alert for obvious abuse patterns, too, such as absences on Mondays and Fridays. According to the act’s regulations, an employer may ask for recertification if it receives information that casts doubt on the stated reason for the time off.
Know Your Role: Managing FMLA and ADA Leave
The complexity of the Family and Medical Leave Act (FMLA) has been tripping up HR since it was enacted 25 years ago. “The FMLA is definitely among the top issues we get asked about,” says Amber Clayton, SHRM-SCP, director of the Society for Human Resource Management’s (SHRM’s) HR Knowledge Center, a resource for SHRM members with questions about employment-related issues. Adding to the confusion is the Americans with Disabilities Act (ADA), under which employees may qualify for extended leave. Managing requests that involve two statutes is tricky but critical.
Here are answers to some commonly asked questions:
Do the two laws cover the same workplaces? Not necessarily. The ADA applies to employers with 15 or more employees. The FMLA generally kicks in at workplaces with 50 or more workers within a 75-mile radius.
Do the statutes provide for the same amount of leave? No. The FMLA allows for up to 12 weeks of protected leave. The courts have ruled that time away from work can be an accommodation under the ADA, but the law doesn’t set a limit on how much time a company is required to allow—it depends on the situation.
Can leave under the FMLA and the ADA run concurrently? Yes, but it doesn’t have to. Workers who have used up FMLA leave can still request time away under the ADA if they meet the law’s definition of a person with a disability.
The Equal Employment Opportunity Commission has said that leave for medical treatment is a type of reasonable accommodation and that an employer may need to extend time off until it becomes an undue hardship on the organization’s operations. But not all courts agree with the commission’s analysis. Given the differing interpretations, it’s a good idea to discuss your specific issues with your employment attorney.
Besides granting additional leave, how else might I need to coordinate the ADA with the FMLA? Even if your company is not required to accommodate a multi-month leave of absence under the ADA, you’ll need to explore other accommodations that would allow an employee with a disability to return to work following the expiration of his or her time away under the FMLA, advises Jonathan R. Mook, a lawyer with DiMuro Ginsberg in Alexandria, Va. Such accommodations could include eliminating marginal job functions that the individual cannot do or transferring the person to a vacant position with responsibilities that he or she can perform notwithstanding limitations caused by the disability.
Firing someone who has just asked for FMLA leave—or who is on it—is risky business. It can bolster an individual’s claim that you are interfering with his or her right to take time off. In addition, employers are required by law to hold workers’ jobs open and maintain their benefits for the entire 12-week period, provided the workers are out for a covered event.
Sometimes, while an employee is on FMLA leave and someone else is covering his or her duties, you will discover that the absent individual was not performing well or was engaged in other misconduct that would justify termination. In that instance, the statute allows a company to fire the person—as long as it’s for a reason unrelated to the leave, says attorney Jonathan R. Mook of DiMuro Ginsberg in Alexandria, Va. “I always advise employers to allow the employee to complete his or her FMLA leave.” Once the worker returns, give him or her a chance to respond to what you found, he says. If no new information comes to light, you can proceed with the termination.
Bear in mind that, as is so often the case in HR, documentation is vital. With proper records, Mook says, “the employer will be able to present evidence that the basis for the employee’s termination was other than the employee’s taking, or need for, FMLA leave.”
Other FMLA-related situations in which you might have a basis for termination include employees falsifying documents or taking vacation while on leave, Mook says.
While you may never run into situations like these, your policies should be robust enough to cover a multitude of FMLA issues that arise when employees request leave. That will ease your anxiety about administering the act and give employees the peace of mind they need to focus on getting well rather than hurrying back to work.
Rita Zeidner is a freelance writer in Falls Church, Va.
Illustration by Jon Krause for HR Magazine.
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