Without a doubt, one of the most legalistic and complicated of the employment laws is clearly the Family and Medical Leave Act (“FMLA”). I have found that there are really ten easy steps that HR should use to ensure legal compliance with the FMLA. Also, keep in mind that although I am focusing on the federal FMLA, some states have their own family and medical leave laws that often have different eligibility requirements and other important differences from the federal law that you should be aware of. Remember, when there is both a state and federal family leave law, the FMLA requires an employer to comply with the law that is most beneficial to your employees.
The first step an employer should take to ensure FMLA compliance is to ensure that an employee is an eligible employee within the meaning of the FMLA. Be careful to provide FMLA training to your managers so they do not accidently tell an employee that they are eligible when in fact they are not. Courts have held that such actions could prevent you from later alleging lack of eligibility as a defense in a court of law based on the doctrine of equitable estoppel. Keep in mind that to be FMLA eligible, the employee must have worked for you for 12 months and 1,250 hours in the 12-months immediately preceding the leave and work at one of your locations with 50 or more employees within a 75-mile radius. The 12 months do not have to be continuous so if an employee worked for you 5 years ago for six months and has now worked for you for 6 months, those two periods combine to be 12 months and thus the employee would be eligible if they have worked 1,250 hours in the 12-months immediately preceding the leave and if they work at your location with 50 or more employees within a 75-mile radius.
Step II The next step in our FMLA checklist is that the employee is taking leave for an FMLA qualifying reason. Employees are entitled to take FMLA leave for their own serious health condition, to care for a parent, child or spouse with a serious health condition, for the birth of a child or placement of a child for adoption or foster care, for the qualifying exigency of the employee’s spouse, child or parent who is on active duty or called to active duty or for the employee’s need to care for a spouse, child, parent or next of kin that is a covered service member. HR needs to be careful to ensure that the employee or their family member actually has a “serious health condition” and that the family member the employee seeks to take leave to care for actually meets the definition of spouse, child or parent. Aunts, uncles, siblings and grandparents are not included. In addition, as a result of the Supreme Court’s DOMA decision, spouse now includes same-sex spouses if the laws of the state where the employee lives recognize same-sex marriage.
Step III-Step VI The third step is to remember that employees do not have unlimited FMLA leave. They are limited to 12 weeks of FMLA leave in a 12-month period. So keep track of all FMLA leave to ensure that the employee has not yet exhausted their 12-week entitlement. The fourth step in our FMLA checklist is to make sure that you have provided the employee with all the forms now required which includes (1) a general FMLA notice, (2) an eligibility notice, (3) a rights and responsibilities notice and (4) a designation notice. These can all be found on the DOL website. Once you have completed all these steps you then must ensure that you require and examine the medical certification that the employee submits. Too often, HR fails to adequately examine these forms missing important information that the health-care provider has failed to provide. HR can now contact the employee’s health care provider to seek clarification or authentication of the medical certification. Step six is to make sure that you know when you can request recertification of the employee’s need for FMLA leave. This will help ensure that employees provide the necessary medical documentation to be able to continue their FMLA leave and it will help to avoid FMLA abuse.
Step VII The next step in our FMLA checklist for compliance requires HR to request a second or third opinion if they have doubts that the employee is actually taking leave for an FMLA- qualifying reason. Thus, this provides HR with a method to ensure that the employee really has a serious health condition but the second or third opinion must be paid for by the employer.
Step VIII Step Eight is to remember to require employees to provide you with a fitness for duty letter from their health-care provider when they are returning from FMLA leave. Employers may now require that the fitness for duty certification specifically address whether the employee can perform the essential functions of his or her job. The revised regulations also provide with regard to intermittent leave, that if an employer has reasonable concerns about an employee's ability to safely perform a job, the employer can now require an employee to provide a fitness for duty certification before the employee may return to work.
Step IX You are now almost finished with the steps you need to take to ensure FMLA compliance. Now, make sure that you keep track of all intermittent leave an employee takes and remember that you have the right to transfer the employee to a position that better accommodates the employee’s need for intermittent FMLA leave if necessary. Remember, employees now must notify the employer of unexpected FMLA qualifying absences by using the employer's usual and customary call-in procedures, absent unusual circumstances. So if the employer has a policy requiring employees to report an absence one hour prior to the start of their shift, the employee would have to do this for any unexpected FMLA absences such as intermittent leave as well.
Step X The final step you should take to ensure FMLA compliance is to ensure your FMLA Policy is well-drafted and legally compliant. Make sure that you reinstate employees to the same position with the same terms and conditions of employment at the end of FMLA leave. Identify key employees who you may not need to reinstate and remember to not discharge or discipline an employee on protected leave. This last step requires FMLA training of your managers so that they do not inadvertently discipline an employee on protected FMLA leave.
Ensuring FMLA Compliance
As you can now see, ensuring FMLA compliance does not have to be so overwhelming. Use this 10-step checklist to ensure compliance with the FMLA and avoid any potential legal issues that could cause problems for your organization.