Last Updated on November 2, 2020 by EANE Web Administrator
EANE assists members with over 5,000 hotline calls each year. What might surprise you is that 30% or more of our calls relate in some way to the interpretation and administration of the complex FMLA regulations.
If you find FMLA – Frustrating, Mystifying, and causing you Lots of Anxiety, trust me you are in very good company! Let’s take a quick look at some of the most common FMLA faux pas and how you might prevent them.
Faux Pas # 1 | Lack of FMLA Policy
It is very important to have a well-defined FMLA policy. When you adopt a written policy you are in the position to define the 12 FMLA period in a manner that is most advantageous to the company. Failing to define and communicate how the 12 month period in which employees are eligible for leave will result in having to calculate the 12 weeks in a manner that best benefits the employee!
Our suggestion is to use a rolling 12-month period (rolling forward from the time leave commences) rather than a 12-month calendar period. The calendar period, unlike a rolling period, allows employees to potentially stack leave during the last 12 weeks of one year and the first 12 weeks of the new year. In addition, for our members in Massachusetts, this will align the Federal FMLA year formula with the upcoming PFML 12 month calculation formula.
Your policy should include all details regarding leave eligibility, amount of leave, qualifying events and should define the employee’s responsibilities. In addition, be certain to define each of the following:
- Impact of leave on accrual of paid time off
- Impact of leave on payment of holiday pay
- Impact of leave on benefits and the payment of employee portion of benefit premiums while on leave
- Establish if the employee will be required to, or may elect to use earned paid time off while on leave
Be sure to communicate your FMLA policy to
employees on a recurring basis!
Faux Pas # 2 | Counting Light-Duty Work as FMLA Leave
Remember that light-duty work is work and cannot be counted against FMLA available time off.
Faux Pas # 3 | Counting Holidays as FMLA
Holidays can only be counted as FMLA time taken by the employee if their leave is a week or more in length. If the FMLA duration is less than a week in length, the holiday is not counted as FMLA time used.
Faux Pas # 4 | Untrained Managers
Train your Managers and Supervisors on the provisions of your FMLA policy and the critical role they play in the administration process, particularly with intermittent leaves!
Managers do not always know what constitutes a qualifying reason for taking FMLA and sometimes fail to tell HR when an employee is out on leave for what could well be a qualifying FMLA reason! If a manager waits a week to inform HR, that could delay the start of the 12-week FMLA period. Untrained Manager and Supervisors may also take actions that might be considered retaliation for having taken leave, assigning them less responsible work because they do not know when the employee is going to be in or out on leave, they might try to dissuade workers from taking leave or request prohibited medical information.
FMLA is a Joint Responsibility – Hold Employees Accountable!
Most employers do a pretty good job administering FMLA and owning their part of the process. We post the FMLA poster, provide the general notice, have the FMLA policy in our employee handbook, we send out the employees the Rights and Responsibilities Notice along with the required medical certification form to be completed by the employee’s medical practitioner. THEN WE WAIT AND WAIT AND WAIT! No… the employee has 15 calendar days to provide us with their physician’s completed medical certification form. This form must be complete AND provide us sufficient information (must be readable, not missing relevant info, etc.) to determine eligibility for leave.
If not, return it to the employee and give them 7 days to remedy the missing information. If the employee does not return the completed, sufficient medical certification form, the employer can deny leave.
What does this mean? You should not wait 30, 60, 90 days for sufficient medical certification. Deny the leave until sufficient medical certification is received. This means the employee needs to report back to work, they will not be eligible for the job and benefit protections afforded by FMLA and will either need to return to work or produce medical certification.
FMLA and ADA Relationship
When the 12 weeks of FMLA are exhausted many employers do not realize that the serious health condition that required 12 weeks of FMLA leave will likely also constitute a disability under the Americans with Disabilities Act (ADA), and the interactive accommodation dialogue should begin and be documented.
There are countless meaningful sections of the FMLA regulations and employers must be familiar with these complex regulations and how they integrate with other leave laws.
EANE offers terrific programs to help you better understand these complex laws, won’t you join us!