Compliance Corner: April 2018
Employer Best Practices for Managing FMLA Leaves
The FMLA grants employees 12 weeks of leave in a 12-month period for specified family and medical reasons, including time off to care for their own or a covered family member’s serious health condition. Leave can be taken continuously, intermittently, or on a reduced schedule. While continuous FMLA leave is somewhat straightforward, intermittent and reduced schedule leave often create administrative burdens for employers and raise concerns about leave abuse. The FMLA regulations, however, provide numerous tools employers can use to properly manage FMLA leaves and reduce the likelihood of abuse.
Here are 11 best practices employers should follow to comply with the FMLA and limit the adverse effects this complicated law may have on their business.
Use a “rolling” FMLA year.
Under a rolling FMLA year, also known as the “look-back” method, employers look back over the previous 12 months to determine how much FMLA leave the employee has used and has remaining. The rolling year is the only 12-month measurement period available under the FMLA regulations that prevents employees from stacking 12-week leave periods back to back.
Confirm employee eligibility.
To be eligible for FMLA leave, an employee must have been employed by their employer for 12 months and have worked at least 1,250 hours during the 12-month period immediately preceding the leave.
Make sure the reason for leave qualifies.
Not all health conditions are a “serious health condition” and not all requests for FMLA leave are for qualifying reasons. Before approving FMLA leave, make sure employees are entitled to it.
Enforce employee notice requirements.
Employees must give at least 30-days’ notice if their need for FMLA leave is foreseeable. If timely notice is not given, employers may delay the leave until 30 days after the date the employee provides the proper notice.
Use medical certifications.
Employers may require a medical certification when employees request leave for their own serious health condition or for the serious health condition of a covered family member. Additionally, obtain clarification of a medical certification if it is incomplete or insufficient.
Require non-disruptive treatment schedules.
If employees need intermittent or reduced schedule leave for planned medical treatment, they can be required to make a reasonable effort to schedule the treatment so as not to disrupt the employer’s operations.
Transfer to a non-disruptive position.
Employees on intermittent or reduced schedule leave may be temporarily transferred to an alternative position which is less disruptive to the employer’s business.
Request a second (or third) opinion.
An employer who has reason to question the validity of an employee’s medical certification may require the employee to obtain a second opinion, and possibly a third opinion, at the employer’s expense.
Substitute accrued paid leave for unpaid FMLA leave.
Requiring employees to use paid leave, such as vacation time, concurrently with FMLA leave will make them think twice about abusing FMLA leave.
Prohibit second jobs.
Establish and enforce a policy prohibiting employees from having a second job while on any type of leave. This may prevent them from taking intermittent or reduced schedule FMLA leave merely to make a little extra money on the side.
Regularly train your supervisors and managers.
Supervisors and managers should be trained in handling their responsibilities under the FMLA. A properly trained staff can reduce the risk of non-compliance and leave abuse.
Gain control over FMLA leave entitlement
The FMLA is an employee-friendly law that is commonly mismanaged by employers. By following these best practices, however, you can gain control over this perplexing leave entitlement and send a message to your employees that you are serious not only about your FMLA obligations, but about your FMLA rights as well.