Managing FMLA: 6 Legal Risks Many Employers Face

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Managing FMLA: 6 Legal Risks Many Employers Face

The Family Medical Leave Act (FMLA) is one of the most complex employment laws with which employers must stay in compliance. Employers face a number of legal risks when managing FMLA ranging from determining eligibility to disciplining an employee on leave. Here are 6 common legal risks many employers face with FMLA that you need to know.

1. Recognizing when leave needs to be covered by FMLA

The need for FMLA leave in the workplace can go unrecognized by supervisors and create potential liability.

For example, in a 2013 case, an employee called her supervisor to inform them that she could not report to work, and the following day reported that she was seeking treatment at a mental health center. She provided her employer with a doctor's note which stated that she was being treated for depression. She was eventually terminated after she had asked for extensions of her leave of absence, and when she could not return to work. The court found that the employer interfered with her FMLA rights when it did not provide her with an FMLA certification form nor a notice of her FMLA rights.
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Recap: FMLA Straight Talk

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ERC's 2013 "FMLA Straight Talk" program featured presentations from the U.S. Department of Labor Wage and Hour Division, Frantz Ward, and ERC Preferred Partner - CareWorks. The program focused on a case study, and each of the presenters provided their perspective on three ways employers can reduce their Family Medical Leave Act (FMLA) liability based on lessons learned in the case. These lessons include following FMLA requirements, using effective employee relations practices, and properly managing FMLA claims.

1. Following FMLA Requirements

Following FMLA requirements can help prevent an organization from running into compliance issues with FMLA. Joann Moriarty from the U.S. Department of Labor led the program and emphasized the following as aspects that the DOL would look at if this case was brought to their attention - specifically related to the following FMLA requirements.
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An FMLA Update Every Employer Needs to Know

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In January-Febuary of 2013, there have been a number of important updates pertaining to the Family Medical Leave Act (FMLA), some of which go into effect on March 8th, 2013. Here's what you need to know to stay compliant with FMLA.

New Guidance on Caring for an Adult Child

The Department of Labor (DOL) recently clarified factors that an employer must consider when an employee requests leave to care for an adult child, and mainly addressed two issues:

  1. In its guidance, the DOL says that the age of the onset of the disability is irrelevant to the determination of whether an individual is considered a "son or daughter" under FMLA. This means that employees whose children became disabled after the age of 18 are eligible to take FMLA-protected leave to care for them.
  2. The DOL clarified that employers should broadly define "disability" based on the Americans with Disabilities Act Amendments Act of 2008 (ADAAA) and that there is no minimum duration for an impairment to be considered a disability.
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How to Manage FMLA Intermittent Leave: 7 Strategies

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How to Better Manage FMLA Intermittent Leave: 7 Strategies

There is probably no task more cumbersome for HR professionals than managing intermittent leave under the Family Medical Leave Act (FMLA). Intermittent leave allows qualified employees to take FMLA leave in small blocks of time (such as one hour) versus one block of 12 weeks.

Although intermittent leave can benefit employees who need time off work for their own health condition or to help with another family member's serious health condition, it can create burdens and adversity for employers if it isn't managed appropriately. The following administrative strategies tend to help employers manage intermittent leave more effectively.

1. Require medical certification.

You have the right to determine that intermittent leave is medically necessary. You can require medical certification to be submitted in order to make this determination and request multiple medical opinions. Doing so gives you some control over the situation and helps you understand the frequency and duration of intermittent leave needed by the employee.

2. Ask for recertification.

Requiring employees to recertify their leave when the condition changes or according to a certain period (such as every 6 months or annually) helps keep employees honest and makes sure you stay knowledgeable about the condition's status and any changes needed for the leave.

3. Have employees use paid leave concurrently with FMLA leave.

Requiring use of concurrent paid leave, disability, etc. curbs the adverse effects of excessive absenteeism. If you don't require use of concurrent leave, you may risk an employee using more than the allotted 12 weeks of leave provided under FMLA.  

4. Use a rolling 12-month period to calculate FMLA leave.

Calculating FMLA leave on a calendar 12-month basis can lead to employees taking back-to-back leave and potentially provides 24 weeks or 6 months of FMLA to an employee. Conversely, calculating FMLA on a rolling 12-month period can prevent back-to-back leave.

5. Accommodate the employee to reduce disruptions.

You may assign an employee to an alternative position with equivalent pay and benefits to better accommodate intermittent leave. You may also work with them to establish an intermittent leave schedule that reduces the leave's disruptions to your business operations. Remember, it's completely legal to request that the employee make a reasonable effort not to disrupt your business operations.

6. Establish guidelines for call-offs.

Call-offs can disrupt business, so provide requirements that employees must call in before they are absent if they are going to be using FMLA leave. You may also request that employees provide notice of unforeseeable leave as soon as practicable.

7. Track leave and absences.

You may request recertification from health care providers when you notice a pattern of absences which could suggest that an employee is abusing intermittent leave. Also, be aware that not tracking FMLA may lead you to provide more than the required amount of leave. Make sure nothing goes uncounted, and if you don't have the time to track it, consider outsourcing FMLA.

While these strategies won't necessarily reduce the number of employees using FMLA leave, they will typically help your organization avoid the costly consequences of mismanaged intermittent FMLA leave.

Please note that by providing you with research information that may be contained in this article, ERC is not providing a qualified legal opinion. As such, research information that ERC provides to its members should not be relied upon or considered a substitute for legal advice. The information that we provide is for general employer use and not necessarily for individual application.

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