04-01-2013
FMLA, Family and Medical Leave Act, is a federal regulation that serves a noble purpose; it allows employees time to take care for themselves or their loved ones in the face of serious health issues without worrying about losing their jobs or their health benefits.
FMLA provides eligible employees with 12 weeks of unpaid, job protected leave in order to care for their own serious health condition, the serious health condition of a child, parent or spouse, when there is a new child or baby in the household, or when the employee has a child, parent or spouse called to active military duty. Employees are also allowed 26 weeks of leave to care for a child, parent or spouse in need of care after returning from military duty.
One of the two central elements of the FMLA is that the covered employer must provide the employee continued health coverage for the duration of the leave. The other central element of the FMLA is that upon return from FMLA leave, the employee must be returned to the same or equivalent position they had before they took leave. That includes the same job, benefits, and other terms and conditions of employment.
While the FMLA serves a noble purpose, administrating it can be daunting. Over the last two years, I have provided FMLA training to audiences from a wide range of industries. Based on the most often asked questions from my trainees, I have assembled ten tips to help you navigate the complexities of the FMLA.
1. Start with the rule. As a newly minted attorney, I learned that before starting any new case or assignment I would have to begin by reading the rule, not once, not twice, but three times. A clear understanding of the rule is standard operating procedure for most attorneys. Why do you think your attorney almost always responds to your question with the words, "I'll get back to you"? He or she is going to check the rule.
The practice of law can be very complicated with rules for everything from substance to form and everything in between. Like so many other areas of the law, the FMLA is complex, making it easy to make a mistake, get it wrong which could lead to litigation. That's why you always want to start with the rule.
2. Ask questions. The regulations make it clear; in all circumstances it is the employer's obligation to designate a qualifying absence as FMLA. It is not the doctor's responsibility and it certainly is not the employee's responsibility. It is the employer's responsibility which usually means the HR professional. The only way to effectively fulfill this responsibility is to have sufficient information and the only way to get that information is to ask questions.
You might be thinking, "what if my employee is uncomfortable answering these questions?" "What if they resist?" "What if they refuse?" In those cases, I suggest you review the Department of Labor's General Notice WH-1420 with the employee. The notice states "Employees must provide sufficient information for the employer to determine if the leave may qualify for FMLA protection..." I would also let the employee know that you, the HR professional, are required by law to keep their medical information confidential. Assure them that you only need enough information to make the determination and that the information will only be used for that purpose. If they are still "uncomfortable" giving you that information, you may need to deny their FMLA claim.
3. Take care of your paperwork. When the question of the FMLA comes up, there are four forms you may need. All of the forms have recently been updated by the Department of Labor and are available online at www.dol.gov/whd/forms. The first form is General Notice WH-1420 which gives the employee general information about the FMLA. The second form is Notice of Eligibility and Rights & Responsibilities, WH-381, which informs the employee of their eligibility status and their rights, responsibilities and obligations under the FMLA.
The third form (or group of forms) concerns certification: The WH-380-E for the employee's own serious health condition, WH-380-F for the employee's family member, WH-384 for qualifying exigency, WH-385 for military caregiver leave, and the recently released WH-385-V for military caregiver leave for veterans who have been honorably discharged within five years. These three forms are your FMLA package. While the first two forms are required by law and for the employee's information, the certification forms are allowed by law and are to be returned to the employer.
The final form legally required by the FMLA is the Designation Notice, WH-382. This form confirms FMLA leave, requests more information, requests a second or third opinion, or denies the FMLA claim. This form is used to complete the paperwork process. As the saying goes, the job isn't over until the paperwork is done.
The timing of the paperwork is as follows: 5, 15, 5, 7. When the employer becomes aware of a possible FMLA issue, it has 5 business days to deliver the FMLA package to the employee. The employee then has at least 15 calendar days to return the medical certification to the employer. Once the certification is delivered, the employer has 5 business days to deliver the Designation Notice. If the Designation Notice requests more information, the employee has 7 calendar days to supply the requested information. The employer can always offer the employee more time but cannot give less time.
4. Exercise your power of denial. What do you do if the employee does not bring the paperwork back at the appropriate time or after an extension has been granted? The claim may be denied. It is the employee's responsibility to return the paperwork in a timely manner. The claim may be reopened or restarted if and when the paperwork is delivered. You will be amazed how quickly the paperwork comes in after a denial. What do you do if the employee does not want to give you enough information to determine if the leave is FMLA qualifying? Again, the claim may be denied.
5. Keep the lines of communication open. With anything as complicated as the FMLA, communication becomes the key to avoiding unnecessary misunderstandings. Always keep the lines of communication between the employer and the employee open. For example, when the employee is out on an extended leave, the employer can require that the employee check in regularly to confirm they will return on the designated date. If things change, you will have notice and can adjust accordingly. In addition, the regulations state that after FMLA leave the employee has a right to the same or equivalent position, pay, benefits, and terms and conditions of employment. If anything changes while the employee is out, make sure you inform the employee of the changes prior to their return to the workplace.
6. Don't terminate without a conversation. The regulations state that at the end of the employee's 12 weeks of continuous leave, the employer is no longer obligated to hold the employee's job. Many employers, in an effort to work efficiently and be consistent, have a policy that summarily terminates employment at the end of the employee's leave. As a result, employers have subsequently been sued and have lost. Such cases are lost because the employee's FMLA issue morphed into an ADA issue and the employer did not engage in the required interactive process over accommodations.
For example, in 2011, a federal court ordered Jewel-Osco to pay a total of $3.2 million in settlement to 110 former employees. The employees were terminated in accordance with the company's automatic policy and practice of terminating employees at the end of medical leaves rather than engaging in the interactive process to determine whether the employees qualified for ADA accommodations. EEOC v. Supervalu, Inc., et al., No. 09-cv-5637 (N.D. Ill.) 1. Before you terminate, even after the requisite 12 weeks, make sure you communicate with the employee as to why they are not able to return. If it's a medical reason, the ADA could be implicated.
7. Record everything. One of my favorite mentors from my law firm days told me "if a client tells you something happened, they need to be able to prove it. If they can't prove it, it didn't happen." In my experience, lawsuits are not necessarily won on the basis of right and wrong. More often than not lawsuits are won on the basis of what you can prove.
Have you ever had a conversation with an employee and then followed up a few months later only to have the employee not remember anything? Whenever you have conversation with an employee regarding the FMLA, send a quick email or memo summarizing the conversation including any commitments the employee has made
8. Train your supervisors. In 10 years of practicing law and 5 years of consulting and training, I have discovered that lawsuits can be the result of first and second level supervisors and managers who may say the wrong thing or do the wrong thing when a complex issue such as the FMLA comes to them directly. You can protect your company, decrease your aggravation and empower your supervisors and managers through training on the fundamentals of the FMLA.
9. When in doubt, offer FMLA paperwork. The regulations state that it is the employer's responsibility to inform the employees of their rights, responsibilities and obligations under the FMLA. Not offering FMLA paperwork can be viewed as interference with the employee's rights and is prohibited by law. The employee does not have to ask for or invoke the FMLA. If the issue appears to take on properties of an FMLA-protected absence, provide the required FMLA paperwork.
10. Check the rule. I realize that this is where we started but this tip is worth repeating. After becoming familiar with FMLA, you might get comfortable and think that you don't need to check the rule. You've answered this question numerous times or you've experienced this situation before. With frequent changes in the law and the myriad of other things you have to contend with at any given moment, it is very easy to make a mistake. One small, inadvertent mistake can be construed as interference with the employee's right to the FMLA. Checking the rule one last time is the simplest thing you can do to avoid an employee relations issue at best and at worst, litigation. It is also the simplest thing you can do to ensure that the employee gets the intended benefits of the FMLA.
The FMLA can be difficult to understand and even more challenging to manage, but if you follow these tips, you will be better able to navigate the rules and regulations so they are properly administered to the benefit of both employer and employee.