Four tricks for curing FMLA headaches
May 13, 2009 by Bill MeltzerPosted in: Family and Medical Leave Act, Special Report
An estimated 14.5% of all employees are likely to take FMLA-eligible leave this year.
Here are four ways to ease the administrative burden and stay compliant with the new laws that took effect earlier this year.
1. Integrate your leave policies
A lot of FMLA headaches can be prevented by integrating your FMLA policy with your disability, workers’ comp and/or maternity policies.
Example: Reword your disability policies to say the firm may terminate an employee who takes more than X amount of short- or long-term disability, including FMLA time.
This eliminates the chance of employees double-dipping from their leave pool. Many firms already require employees to use up paid-time off (PTO) before moving on to FMLA. You’re in the clear to do so as long as you notify employees of this policy.
As an administrative time saver, you may also want to overlap FMLA evaluations with your ADA policy. Here’s why: ADA issues often trigger FMLA eligibility.
Without retracing your steps, you can often evaluate an FMLA request and determine whether an employee is entitled to ADA accommodations, including intermittent leave or a reduced work schedule.
The key: FMLA allows you to obtain medical certification that a serious medical condition requires time off work. Just remember that FMLA itself isn’t an ADA accommodation, and a legit FMLA denial doesn’t automatically mean ADA won’t apply.
2. Adopt preliminary designations
Want to reduce the headaches of intermittent leave that occurs without prior notice? You may want to adopt preliminary FMLA designations.
These can be made when the employee requests leave but you have been unable to confirm the employee is eligible or you’re waiting for medical certification.
Once you get the necessary info, you can finalize the designation. If the employee fails to provide certification shortly after his or her return, the leave can legally be changed to an unexcused absence.
You may also want to create an FMLA spreadsheet to track certifications and approvals of intermittent leave.
3. Use decision trees
FMLA decision trees are a great tool for determining eligibility on a case-by-case basis. And you don’t have to reinvent the wheel to design one. In particular, decision trees are a great teaching tool for walking supervisors and employees through the certification process.
An interactive decision tree – where users answer yes or no to a series of questions and get an eligibility decision – is available here.
4. Design paperwork checklist
Distributing paperwork checklists to workers requesting leave helps you meet your obligations and give employees everything they’ll need for approval. The items:
- a healthcare provider statement indicating which part of the “serious health condition” definition applies to the case
- medical facts supporting it, including the approximate date the condition started, its probable duration and the probable length of the current need for leave
- a notation of whether intermittent or reduced time leave is required and the probable frequency, and
- the paperwork due date.
Best part: You only have to take this step once. It’s on the employee if he or she misses the deadline for providing medical certification.
May 14th, 2009 at 10:13 am
Does the employee need to request FMLA and what if they don’t?
May 14th, 2009 at 11:56 am
I printed the FMLA decision tree for consideration in our organization. What I noticed is that the tree does not include the FMLA change to include a family member caring for returning military-related injury. Is there a way to get a copy of the tree that could be modified?
Thank you.
May 14th, 2009 at 1:10 pm
You might want to rethink the comment about limiting and terminating for utilizing FMLA leave. The statute’s intent was to protect employees from adverse employment actions such as terminations. The only case in which I am aware that you should consider terminating someone on FMLA leave would be if you would have terminated regardless of the serious health condition.
In addition, the Department of Labor already has a preliminary eligibility form that now needs to be provided to employees. It’s not ust a nice thing to do anymore, it’s the law. My organization sends the approval notice (the second notification – prior to the amendment, only one was required) once medical certification has been received. This column appears to be a little dated in its information.
Having a decision tree is a good idea. Also, the Department of Labor’s website is very user friendly. Getting all forms and notices directly from them saves the burden of having to reproduce them yourself. If you’ve not had a chance to review the side since the FMLA was amended, now would be a good time to get familiar with the law. Employees are becoming more litigious, especially in light of the down economy.
May 14th, 2009 at 1:39 pm
I have one issue with the above article, it states “Many firms already require employees to use up paid-time off (PTO) before moving on to FMLA. You’re in the clear to do so as long as you notify employees of this policy.” I think it should state they employees should use up PTO concurrently with FMLA NOT before. This would indicate that employees would take all their PTO and then get an additional 12 weeks!
May 14th, 2009 at 1:54 pm
Thanks for the info. FYI – the linked decision tree is a flow chart. A decision tree would be easier to follow for employees and management.
May 14th, 2009 at 3:17 pm
I thought that FMLA leave was “protected” leave and that the employee was entitled to be reinstated to their job when they returned. I don’t see how you can include that with the statement that if they take more than x amount of short or long term disability they may be terminated.
While my company is not governed (at this time) by a FMLA leave law we always do our best to work with any employee needing leave including keeping their job available for when the return.
May 15th, 2009 at 8:47 am
Great article and great suggestions ~ thanks for the decision tree!
May 21st, 2009 at 11:58 am
Pam Baldwin and Marcia Kennedy’s comments are well noted.
How about a decision tree for California employers?
I cannot use the DOL’s website for forms and notices because of conflicts with California Family Rights Act, California Constitution and Privacy laws.