Enacted in 1993, the Family and
Medical Leave Act (FMLA) requires
that employers must grant eligible employees up to 12 workweeks of unpaid leave
during any 12-month period for the birth
and care of a newborn or adopted child, to
care for an immediate family member with
a serious health condition, or when the
employee has a serious health condition.
Recent changes to FMLA are effective as
of Jan. 16, 2009. They include new military
family leave entitlements as well as revisions designed to clarify the requirements
that the FMLA imposes on both employees
and employers.
“As an owner, make sure your managers
are sensitive of the FMLA and have at least
one person, such as a benefits manager or
HR person, who is particularly well-versed
in FMLA,” says Peter B. Maretz, a shareholder with Shea Stokes Roberts & Wagner.
Smart Business spoke with Maretz about
the new FMLA changes and how employers can stay on top of them.
What are some of the key changes to the
FMLA?
Once an employer knows an employee
may qualify for FMLA, the employer has
five days to request medical certification.
Once an employee delivers medical certification, the employer has five days to tell
the employee whether or not the request
qualifies for FMLA leave. Also, if employers are going to deny the leave, they must,
within those five days, notify the employee
in writing as to why the leave was denied.
Another change concerns intermittent
leave, such as when an employee needs
random days or half-days off to receive
counseling or therapy. Under the old rule,
employees had to ‘attempt’ to schedule
foreseeable leave during times that would
not be disruptive to business. Now,
employees must ‘make reasonable efforts’
to schedule foreseeable leave to avoid disrupting business.
This is not new, but you cannot punish an
employee for poor performance due to an
FMLA leave, such as when a salesperson
doesn’t hit his or her numbers based on the
fact he or she took FMLA leave. Under the
new rules you can, however, deny someone a perfect attendance award because
the person took FMLA leave.
Also, employers are required to post
FMLA policies in the workplace, either in a
common area or on the company’s server
or intranet.
What constitutes a serious health condition?
The employee has to miss at least three
consecutive days, he or she must go to the
doctor within seven days of the onset of
the condition, and the doctor or health care
provider has to decide that the employee
needs to come back for further testing or
treatment in 30 days.
What are the new rules concerning military
family leave entitlements?
These are the most important of the
changes. Under the new rules, if an
employee has a spouse, son, daughter, parent or next of kin who is on active duty or
is called up to active duty, the employee
has up to 12 workweeks to attend to things
such as arranging child care, tending to
legal or financial matters, attending counseling, going to farewells or arrivals, and/or
matters brought on by the missing status or
death of the family member.
The qualifying employee also has up to 26
workweeks of leave to care for a member
of the Armed Forces (including the
National Guard or Reserves) who is undergoing medical treatment, recuperation or
therapy, is in outpatient status, or is on the
temporary disability retired list for a serious injury or illness.
What should a company do if it suspects an
employee is abusing the FMLA?
This actually happens quite a bit, unfortunately. Most importantly, you have to be vigilant about requesting medical certification.
And do it for every employee, not just the
ones you suspect. Even if the employee is
caring for a parent or child, get medical certification. In cases where there’s a strong
suspicion of fraud, consider surveillance.
There are laws against audio recording, but
if you can get a video or still picture of an
employee caught in the act (like an employee who took time off for a bad back playing
golf), you’ll be protected against fraud. You
should hire a professional for this, however.
What if a company improperly denies an
FMLA claim?
If an employee claims that he or she has
been improperly denied FMLA, do a thorough investigation. If you find that the leave
was improperly denied, extend the leave
immediately, counsel and/or discipline the
manager responsible, and check with the
employee to make sure there are no further
concerns. Document everything.
If an employee is wrongly terminated or
improperly denied leave, you could be
forced to pay back pay or reinstate the
employee, give the employee front pay for
years and/or pay actual damages, not to
mention the employee’s attorney fees.
Don’t be afraid to consult with your legal
counsel or even hire additional legal counsel that specializes in FMLA. A small
investment now saves huge exposure
down the road.
PETER B. MARETZ is a shareholder with Shea Stokes Roberts & Wagner. He regularly advises businesses on all aspects of
employment law. Reach him at [email protected] or (619) 237-0909.
