The Family and Medical Leave Act (FMLA) remains essential but can present challenges for employers. While most employee requests for leave are genuine, there are instances that raise questions for HR. Even in legitimate cases, certain aspects of the leave process can create complications for HR teams. So, how can employers manage FMLA effectively without risking legal issues?
- Make sure all employees and supervisors are trained on FMLA and the process to call in for FMLA time.
- Remember that employees do not have to use the magic words FMLA to describe an FMLA request. If you hear of the situation and it looks, sounds, and possibly smells like FMLA, start the process. If the supervisor hears about it, make sure they tell HR.
- In the U.S. Federal 6th Circuit of Appeals, which includes Michigan, employers can establish call-in procedures and may deny FMLA leave if an employee fails to follow them. However, an employee cannot be faulted for failing to comply with such a policy if it is unclear or the employee lacked notice of it.
- Most FMLA requests are a day or two after the leave started. If it is foreseeable, and the employee does not give 30-day notice, e.g. surgery, it can be denied or delayed.
- If it is not foreseeable, it may seem like no call no show, but many times these are a situation that happened, and the employee or employee family could not make a call in a timely manner. In these situations:
- Send the paperwork within five days of learning of the leave with a cover letter stating that we have received notice of the FMLA request on x date to begin on y date (the first date the employee was absent).
- Remind them to get the paperwork in within 15 days of the date of the letter and if they fail to do so or if it is deficient, another letter stating they have seven additional days to provide it or cure the deficiencies. Both letters should be sent overnight with return signature required receipt.
- If you don’t have confirmation that the employee was hospitalized, involved in an accident, or faced a similar situation, you may be able to deny the FMLA leave and apply an appropriate absenteeism policy. However, consult with your attorney first, as personal liability may come into play.
- If the paperwork is returned timely, make sure to respond within five days of receipt one way or another.
- Review the paperwork for FMLA reasons. There is only one FMLA time bank, regardless of the different needs for FMLA by an employee, e.g. operation, care for parent, etc.
- With respect to intermittent FMLA, make sure that time taken is at the lowest level the timekeeping does, e.g. 1/10 or an hour, etc. You cannot require an employee to take more time than is needed for FMLA.
- If you see a pattern with intermittent FMLA, you can ask for doctor clarification under the regulations. Discuss with legal counsel before doing anything.
- With respect to doctor appointments and the like, you can request them to be conducted after work hours.
- Make sure you comply with all other applicable laws that may impact the leave. A local law could apply as well and be grounds for leave while FMLA may not.
Finally, always consult legal counsel before considering the termination of an employee who is on or taking FMLA leave. There is an “honest belief” principle: if an employer genuinely believes that an employee has engaged in behavior that would be legitimate grounds for termination, and acts on that belief, the action may not be unlawful. However, this is highly dependent on the specific facts of the case.
This list is just a tip of the iceberg. FMLA is highly technical and requires an extreme attention to detail. ASE offers FMLA classes, and we conduct customized training for organizations and their employees. We highly recommend if a situation arises concerning FMLA, contact your legal counsel.
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FMLA Training Courses – ASE offers several courses on FMLA.
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Source: Constangy Brooks Smith & Prophete LLP 9/20/24