New FMLA employer guide leaves many questions unanswered
A new employer guide to the Family and Medical Leave Act outlines companies’ obligation under the statute, but still leaves many unanswered questions, says FMLA attorney Jeff Nowak, a partner in the Chicago office of FranczekRadelet.
“For the most part, the guide simply restates what we already know from the regulations, without tackling the difficult administration issues that employers have to deal with on a day to day basis,” says Nowak.
Because the FMLA deals with the administration of leave for individuals with medical conditions that may not be self-evident to employers, he says, “by its very nature, the FMLA is a difficult program for employers to administer.”
The FMLA is a federal law that provides eligible employees of covered employers with unpaid, job-protected leave for specified family and medical reasons. Eligible employees may take up to 12 work weeks of leave in a 12-month period on the birth or adoption of a child or to care for themselves, or a child or parent with a serious health condition. Healthcare benefits must continue during an FMLA leave with employers and employees contributing the same amounts as when individuals were actively at work.
In order to be eligible for FMLA leave, employees in workplaces governed by the federal statute must have been on the job with their current employer for at least 12 months and worked 1,250 hours or more prior to the date leave is to begin.
Given recent analysis of employer data by ComPsych, a third-party FMLA administrator, it is apparent that managing FMLA leaves is not a trivial exercise. A review of information from 29,000 customer organizations covering 78 million people reveals that on average, one in every 10 employees is on FMLA leave at any one time, but in some industries, the number is far greater.
For example, in healthcare organizations and call centers, the number of people on FMLA leave on any day of the week can be as high as 30%. The average duration of leave is 14.2 days, with 63.6% of employees typically on continuous FMLA leave; 34.9% on intermittent leave; and, 1.5% on a reduced work schedule.
According to Nowak, some of the more difficult FMLA issues employers must contend with that are not fully covered in the guide include:
1. How to recognize an employee's need for FMLA leave.
2. When to seek a second opinion and how long a second opinion takes.
3. How to properly calculate FMLA leave.
4. What an employer can/should do when medical certification from an employee is late or is never received.
5. What to do if the employee does not return to work after FMLA leave ends.
6. How to deal with FMLA misuse and abuse.
“There are as many FLMA potential abuses as the day is long. An employee on leave for a bad back may post a picture on Facebook showing he helped a friend to move furniture,” says Nowak. “Or an employee who requests time off to take a vacation and was turned down may later request FMLA leave for the same time period.”
Where employers suspect FMLA abuse, Nowak recommends that they conduct a complete and exhaustive investigation into the information received and make employment decisions based on their findings. “The majority of courts will support employers in situations where they honestly believe an employee has engaged in FMLA abuse and therefore has terminated the employee or taken other action,” he says.
One area Nowak believes is covered well in the new guide is the section on unpaid military family leave. The military family leave provisions entitle eligible employees of covered employers to take up to 12 work weeks of FMLA leave for any “qualifying exigency” arising from the foreign deployment of the employee’s spouse, son, daughter, or parent with the Armed Forces or up to 26 work weeks to care for a covered service member with a serious injury or illness if the employee is the service member’s spouse, child, parent, or next of kin.
“It’s an entitlement that’s not often used so employers are not usually able to recite the regulations that apply to the situation,” he says.
Employers also need to be aware of state laws that have more rigorous rules than the federal FMLA. “California, Oregon and Wisconsin are examples of states with more expansive coverage,” Nowak notes. “For example, Wisconsin employees are eligible for FMLA-like protection after only 1,000 hours of work in the last year.”