Family medical leave

Are you covered by and doing everything you should to follow the
requirements of the Family and Medical Leave Act (FMLA)?

Since FMLA became effective on Aug. 5,
1993, there have been numerous clarifications including court rulings and
Department of Labor opinion letters that
may affect how well you are following the
letter of the law. There may be some things
that you have erroneously thought you
couldn’t do under FMLA. Employers who
have 50 or more employees during 20 or
more calendar work weeks in a calendar
year.

“There have been many court cases on
the FMLA since its enactment, and it is so
important that companies comply according to the way these cases have interpreted
the statute and regulations,” says Donna
Geary, an employment law attorney with
Jackson Lewis LLP. “Your best assurance
of that compliance is regular contact with
your attorney who specializes in employment law and specifically in the FMLA.”

Smart Business talked with Geary about
some specific areas that companies should
realize when dealing with FMLA.

What are the basics that all companies
should be aware of with FMLA?

1. Employers should have an FMLA policy and forms that have been reviewed for
   legal compliance. Any printed handbook
   or benefits pamphlet must contain FMLA
   policies and procedures. If an employer
   does not have any printed materials of its
   own, it must provide the written FMLA
   fact sheet. It must also display the FMLA
   poster. Both of these are available on the
   Department of Labor (DOL) Web site,
   www.dol.gov.

2. HR folks should be well aware of the
   law, and front-line managers should be
   trained on the basics to prevent missing or
   not recognizing an FMLA event.

3. Employees who take FMLA leave must
   be given full details of their leave and it
   must be documented as such. The importance of this is emphasized by reviewing
   the Supreme Court case of Ragsdale v.
   Wolverine Worldwide, Inc.

4. Some of the forms have been updated
   since the original enactment of FMLA.
   Make sure you are using the most current
   ones. Again, check the DOL Web site.

5. Someone needs to keep an eye on
   state laws. There are now approximately
   11 states with laws that provide more than
   the federal requirements. For example, the
   District of Columbia requirement covers
   any entity with 20 or more employees within D.C.

What are some things that employers may
not be aware of that they can do?

1. Always require that employees provide
   medical certification for their leave (see
   29CFR, Part 825.305 and 825.306). While
   the FMLA doesn’t require that, how will
   you manage leave without documentation?

2. Require recertification when permissible (29CFR, Part 825.308). Typically, recertification cannot be required more than
   every 30 days or cannot happen unless circumstances of the leave change. An example might be an employer learns information that could cast doubt on the validity of
   the medical certification.

3. Require second and third opinions
   when appropriate (Part 825.307). If you
   have information to indicate that the doctor may be providing more leave than warranted, you can require an additional opinion. If that one contradicts the first, then a
   third can be required to make the final
   decision.

4. Require paid leave be used concurrently with unpaid FMLA leave (Part
   825.207). Workers’ compensation and certain other paid leaves can run concurrently
   with FMLA leave.

5. An employer may transfer an employee
   to an ‘alternative position’ to better accommodate intermittent/reduced schedule
   leave (Part 825.204). You can do this as
   long as you provide the same benefits and
   same pay rate that accommodate the
   recurring periods of leave. The employer
   cannot use this to punish an employee.

6. If both husband and wife are
   employed, they may be required to take
   their 12 weeks split between the two of
   them (Part 825.202). This applies to certain
   kinds of leave such as birth of a child or
   care of employee’s parents. Check with
   your attorney on this. It cannot be used for
   the employee’s own sick leave.

7. An employer can require ‘return to
   work’ medical documentation or ‘fitness
   for duty certification’ (Part 825.310). This
   provides more control and documentation
   for the employer.

Can you think of anything else that companies should be aware of?

The HR Department must keep up-to-date on the latest forms, requirements and
court rulings to protect the company,
themselves and management. Under
FMLA, not only can the employer be sued,
but there is individual liability. Also, check
every absence to see if it falls under FLMA.

DONNA GEARY is a senior lawyer (and partner, effective Jan. 1,
2007) with Jackson Lewis LLP. Her specialties are FMLA, ADA
and FCRA. Reach her at [email protected] or (412)
232-0154.