FMLA: Mitigating organizational risk
January 4, 2016
By Donald Gordon, Human Resources Consultant
Family and Medical Leave Act (FMLA) disputes are among the top issues that land companies in the courtroom. It’s been a big part of HR departments for years now, and it has only grown in importance. Requests for FMLA leave seem to have risen drastically, leaving HR professionals to ask the question, “Are we compliant?”
According to U.S. Department of Labor (DOL), the FMLA entitles employees up to 12 weeks of job protected, unpaid leave of absence within a single 12 month period. The entitlement may be available for employees who have worked for a total of 1250 hours within the preceding 12 months.
While employers may feel that they have few rights under FMLA, one right they have is to utilize federally approved forms to determine whether they have any obligations under the law, to request information about the nature of the claim and to inform employees of FMLA status and to track communication with the employee.
The first obligation that an employer has is to inform all employees of their rights by displaying the FMLA poster prepared by the DOL, summarizing the major provisions of the FMLA and informing employees of how to file a complaint. The poster should be displayed in a conspicuous place where employees and applicants for employment can see it. Further, the employer must include the FMLA policy within the employee handbook.
Once the employee rights have been displayed and an employee indicates a serious health condition, or a family member’s serious health condition, the employer should provide the employee with the Notice of Eligibility and Rights & Responsibilities form within five business days of the employee’s initial request. This notice reiterates the employee’s rights and responsibilities for taking FMLA and it informs them whether they meet requirements for eligibility. The form also states at least one reason why an employee would not be eligible for FMLA leave.
If the employer requires certification to approve FMLA, it should also provide the employee with the Certification of Health Care Provider for Employee’s Serious Health Condition form for the health care provider to complete. The form should be provided along with the employee’s job description outlining essential job duties. It requests facts about the condition, the length of time of the treatment and certification by the health care professional.
The employer is responsible for designating leave as FMLA-qualifying and providing notice to the employee in writing. In this case, the FMLA Designation Notice form should be provided to the employee within five days, once the employer has enough information to determine whether the leave is FMLA qualifying. The Designation Notice, includes the employer’s designation determination and any substitution of paid leave and or fitness for duty requirements, which should be provided for every FMLA qualifying event within a 12-month period. Notice is required for any changes in designation.
Additionally, the employer should provide the amount of leave against the employee’s FMLA entitlement, if that is known at the time. The Designation Notice may be used to inform the employee that the certification is incomplete or insufficient and what information may be needed.
Although the FMLA process can be a bit confusing, the U.S. Department of Labor has provided straight forward forms to help take some of the guess work out of the filing process. The use of FMLA forms help ensure that an employer has properly informed employees of their rights, notified employees of their eligibility status and the amount of time they will receive if granted. With the mounting expense of increasing FMLA claims employers want to avoid liability for compensation and benefits lost by reason of violation.
The consistent use of these forms will help to mitigate additional financial losses. However, to ensure a complete understanding of the entire FMLA process and employer responsibilities visit www.dol.gov/whd/fmla/.
This article was previously published in the February 2016 Tri-State Business Times.