Take it or leave it Featured

8:00pm EDT September 25, 2009

If executives fail to fully understand the intricacies of the Family and Medical Leave Act (FMLA), they can face mountains of legal fees and irreparable damage to their companies’ reputations.

For some, it may make sense to outsource FMLA management. Edward T. Mashey, the director of diversity at UPMC Work Partners, says that letting trained professionals handle the detailed procedures of FMLA might seem unnecessary, but it can prevent your business from suffering from the consequences of stressful and costly litigation.

“If the expertise isn’t inside an organization’s walls, outsourcing FMLA management can provide a more consistent administration of leave policies throughout the organization,” Mashey says.

Smart Business spoke with Mashey about the pitfalls employers should know about regarding FMLA and how they can be avoided.

What is FMLA?

FMLA is the Family and Medical Leave Act, a federal law that allows qualified employees to take up to 12 weeks of unpaid leave per year to care for themselves, for a seriously ill family member or for a new child without losing their jobs or health care insurance.

New updates to the act in January 2009 added leave time for eligible employees with a spouse, son, daughter or parent on active military duty or called to active military duty.

What are the challenges that employers face in overseeing FMLA?

The FMLA provides scheduling flexibility for employees to address specific, significant issues not related to work. In many jurisdictions, there may be additional state and local legislation regarding leaves and how they need to be handled. If not administered and managed properly, leave can create significant problems for employers.

According to a Society of Human Resources Management (SHRM) study, more than 60 percent of employers believe they have granted FMLA leave that was unfounded. That number represents a significant number of days away from work that may not have been necessary or appropriate.

What are some concerns employers have about FMLA?

In another recent survey by WorldatWork, more than 40 percent of organizations indicated their top concern was the potential for employee abuse of FMLA leave. The next highest concerns were the lack of adequate notice given by employees and the difficulty of keeping track of intermittent leaves.

What are some of the most frequent FMLA violations?

Among the most frequent FMLA violations is the failure on the part of the employer to notify the employee of his or her FMLA rights. Another common violation is when the employer fails to notify the employee that the leave counted toward the employee’s 12-week entitlement.

These sound like simple communications between the employee and employer, but they are serious violations. Violations like those can cost employers significant dollars in litigation alone. Other common violations include:

  • Taking disciplinary action against an employee for using FMLA
  • Failure to grant leave to provide physical care or psychological comfort to a seriously ill parent or child
  • Failure to reinstate employees to the same or an equivalent position, including same shift
  • Terminating an employee during or at the conclusion of FMLA leave
  • Failure to grant FMLA leave because of misunderstanding of what qualifies as a serious health condition
  • Failure to request medical certification in writing and not giving an employee at least 15 days to obtain medical certification

Does it makes sense to outsource a company’s FMLA leave management?

Human resource managers can start that process by first answering these questions:

  • Are you continually monitoring state and local regulations and updating your internal processes?
  • Are you consistently applying FMLA policy throughout the company?
  • Are you aware that eligible employees can take up to 12 weeks of unpaid, job-protected leave in a 12-month period for specified family or medical reasons?
  • Is your FMLA policy up to date?
  • Do you have a comprehensive archive of historical and current leave information?

If your answer is ‘no’ to these questions, then outsourcing FMLA management might be a smart solution for your company.

What are some reasons to outsource FMLA management?

If the expertise is not inside an organization’s walls, outsourcing FMLA management can provide a more consistent administration of leave policies throughout the organization. A good outsourcing partner can eliminate the manual tracking of continuous and intermittent leaves. Outsourcing is also a good way to improve communication to employees and management personnel about the issue of leave and FMLA policy.

Outsourcing FMLA management also improves documentation and tracking. As a result, the organization can get a better handle on both utilization and the costs involved with leave. With the right outsource partner, organizations will have increased access and input from clinical and legal resources to help monitor leaves.