Friend or foe? Employers struggle to find the FMLA answer

The Family and Medical Leave Act (FMLA) took effect in 1993 to help balance workplace demands with the medical needs of employees and their families. Under it, an employee is entitled to take up to 12 weeks of unpaid leave during a 12-month period for a serious health condition, or to care for an immediate family member who has a serious health condition.

Smart Business spoke with Douglas Fleisner, sales executive at JRG Advisors, about solutions for the concerns employers have about the FMLA.

What challenges do employers face with the FMLA?

Nearly 70 percent of employers are worried about employees abusing the FMLA and similar laws.

Employers are not only concerned with abuse but also with staying compliant and ensuring their policies and implementation procedures are in accordance with current law. What makes this even more difficult is that FMLA definitions and specifics can vary from state to state.

Also, each FMLA request requires a case-by-case analysis. You cannot have a one-size-fits-all approach. FMLA overlaps with many other laws and policies, such as collective bargaining agreements, short- and long-term disability policies, workers’ compensation, absenteeism policies and paid time off. It is hard to remember and consider all of them every time a leave question arises. The intersection of responsibilities under the FMLA and the Americans with Disabilities Act remains problematic as well.

The evolving nature of mental and physical conditions makes each FMLA case different and that makes it harder for employers to develop a more foolproof, standardized system of handling FMLA issues. More and more employees are presenting with conditions that fall outside of the ‘easy’ or more straightforward 12 weeks application of leave.

How can a company implement solutions for some of these situations?

With all of the laws out there protecting employee rights, many employers feel that FMLA abuse is a problem they are powerless to stop. As a result, they don’t closely question employees about their FMLA requests. That can be very costly.

An employer needs to have clear policies about what can be covered by the FMLA and what the employee needs to do to give notice of upcoming leave. Establish a set of call-in rules and specify when an employee must call in, to whom and what information must be shared/left when calling in.

Make employees hand in leave request forms; create and enforce a call-in policy; keep the lines of communication open; require them to certify their absence and seek recertification when circumstances change; and give managers/supervisors a list of questions to ask all employees when they call in sick — be careful though because they can only ask certain questions.

Remember that not every employee is eligible for extended leave under the FMLA. Eligible employees must have worked for their employer for at least 12 months prior to requesting the leave, and they must also have worked at least 1,250 hours in those 12 months. For someone who works an eight-hour day, that translates to approximately 156 days. Your company also must have at least 50 employees who work within 75 miles of its location. Once again, various states have different provisions.

What are some next steps for employers?

An effective absence management program is imperative. It reduces lost worker productivity and limits the liability for mismanagement of employee absences, ultimately producing a positive impact on a company’s bottom line.

While all employers continue to grapple with managing absenteeism, certain tasks have become less burdensome thanks to increased access to expert advice, third-party technology and more outsourcing options. Brokers and advisors can play an important role in ensuring employers address this need.

By understanding the basics of sound absence management, they can help reduce the regulatory, decision-making and reporting challenges, particularly when complying with newer Affordable Care Act regulations and coordinating a variety of absence types. They can review your FMLA policy to make sure it is compliant, and help maximize its usefulness while minimizing its abuse.

Insights Employee Benefits is brought to you by JRG Advisors