Understanding the Basics and Managing the Headaches of FMLA

HR Advisor�feature article | January 2008

Employers often face a variety of troublesome issues when administering the federal Family and Medical Leave Act (FMLA).�

As businesses grow and expand, they may become subject to the FMLA requirements.� Unfortunately, managers and owners are often left unaware of their new obligations.� Understanding the fundamentals of FMLA is crucial to successfully managing your business.

First of all, know whether or not you are a �covered� employer.� FMLA will apply to your business if you are:�

A private sector employer employing 50 or more employees for at least 20 workweeks in the current or preceding calendar year (including joint employers and successors of covered employers); or

A public agency (including local, state, and federal employers) and local education agencies (e.g. schools).

A covered employer generally must grant an eligible employee up to a total of 12 workweeks of unpaid leave in a 12-month period for one or more of the following reasons:�

For the birth of a son or daughter, and to care for the newborn child,

For the placement with the employee of a child for adoption or foster care, and to care for the newly placed child,

To care for an immediate family member such as a spouse, child, or parent (but not a parent "in-law") with a serious health condition, and

When the employee is unable to work because of a serious health condition.

To be eligible for up to a total of 12 workweeks of unpaid leave in a 12-month period for serious health condition reasons, an employee must:

Work for a covered employer,

Have worked for that employer for at least 12 months,

Have worked at least 1,250 hours during the 12 months prior to the start of the FMLA leave, and

Work at a location where at least 50 employees are employed at the location or within 75 miles of the location.

If an employer does not actively manage its leave of absence process and policies, however, employees can take advantage.� Some areas to pay particular attention include:

The 12-month Period.� To avoid employees �double-dipping,� many employers view the �rolling� 12-month period as the most reliable� method to track an employee�s FMLA usage in the prior 12 months (as opposed to using the calendar year, the� payroll year, or the employee�s anniversary date);

Medical Certification.� Requiring a certified doctor�s note is important.� Requiring employees to submit medical certification within a specified timeframe (e.g. 10 calendar days) before being subject to disciplinary action can be particularly helpful.

Medical Recertification.� Employers may require employees to periodically provide medical recertifications (i.e. every two weeks) to their managers.

Return-to-Work Date. With the certified doctor�s note, make sure the physician provides an anticipated return-to-work date, and monitor the employee�s progress towards that date.� If the employee�s own serious health condition is involved, be sure to provide the physician a list of the employee�s essential job functions or, at least, a job description for any reasonable accommodation considerations.

Intermittent Leave.� An employee on intermittent leave may be assessed with only that specific amount of FMLA leave necessary to address the circumstances giving rise to the need for leave. For example, if Employee X regularly works five days per week and uses intermittent leave one day each workweek over an extended time, the employee would simply be �charged� one-fifth of each workweek towards the 12-week FMLA entitlement.� If Employee Z works eight-hour days and takes two hours each day for physical therapy during the workweek, the employee would be charged one-quarter of a workweek for FMLA. (Note: An employer can dock FMLA leave up to the minimum unit of time paid based on the company�s payroll system. So, if the employer pays in 6-minute increments, then the employee�s FMLA bank can be charged in 6-minute increments.)

Part-time Employees.� The employee�s amount of leave is calculated on a proportional basis. For instance, if Employee Y regularly works 30 hours per week then designates 10 hours of the schedule as intermittent FMLA leave, that portion of time would correspond to one-third of a workweek for leave.

Call-in Expectations.� Employers may implement and enforce a no-call policy even for employees on approved FMLA leave.

Reasonable Accommodations.� Under certain circumstances an extended leave of absence might be required as a reasonable accommodation under the federal American with Disabilities Act (ADA). The ADA's regulations specifically provide that an unpaid medical leave qualifies as a reasonable accommodation and must be provided to an employee with a qualifying disability. Thus, an employer may need to be prepared in providing unpaid leave as a reasonable accommodation: (1) after an employee exhausts the 12 weeks of FMLA leave, (2) if an employer has fewer than 50 employees, or (3) if an employee has less than one year of service.� On the other hand, some situations may not qualify for or necessarily require FMLA usage.� In the process of getting of the certified note from a physician, find out if the doctor may recommend other options or reasonable accommodations not considered earlier (i.e. a change in the work area set-up).� Be careful, though, because if a valid qualifying event does exist, it is very prudent to allow the employee to take the FMLA time-off rather than press against the issue.�

The FMLA provides a highly valuable benefit for employees in times of real need.� On the other hand, the regulations are among the most challenging and confusing employment issues that many employers face.� While employees may take advantage of and abuse their FMLA benefits privileges, employers can take proactive measures to help minimize the risks and promote an important benefit for those employees who are in real need.

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