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?
- 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.
- 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.
- 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.
- 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.
- 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?
- 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?
- 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.
- 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.
- 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.
- 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.
- 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.
- 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 gearyd@JacksonLewis.com or (412) 232-0154.