Last week, during the firm’s Annual Employment Law Seminar, we offered a session on complex issues under the FMLA. The session made two things totally clear.
One, no made for TV movie could ever be more entertaining than the fact patterns that come to HR. Two, pretty much all FMLA issues are complex.
A few consistent questions cropped up and many of these related to employer control.
Employers have the right to designate appropriate leave as FMLA.
This is not necessarily the choice of the employee. But you need supervisor buy-in to identify and track FMLA. Without cooperation, we find a lot of informal leave and “work arounds” resulting in an employee who has already been gone 20 weeks, still has a full FMLA allotment and the supervisor/buddy is now fed up.
Information is critical.
If we have knowledge of the need for FMLA, we have to provide the forms, make sure the employee understands the policy and designate it within five days of becoming aware of the need for leave. Whether HR knows or just the supervisor, the clock starts ticking. Failure to communicate or designate on the part of the employer can be deemed interference with leave.
Employers also have the obligation to track leave and provide notice of its use to the employee. This means consistent follow up and communication.
Part of the problem can also be physician communication.
Physician delays, mistaken withholding of information based on HIPAA and incomplete certification all pose problems with FMLA leave. Many physicians have also begun charging for FMLA paperwork creating a barrier for employee compliance. A letter to the physician outlining issues and providing a job description can help with some of these issues - so long as you have express permission from the employee or have the employee deliver the letter.
Work comp is also an issue.
It runs concurrently with FMLA but you can’t require the employee to use PTO at the same time. If the employee is on light duty sorting paperclips that is time worked and not FMLA. Further, many employers have policies that discipline employees who fail to accept reasonable light duty assignments or may even fire such employee. Under the rules, if they have FMLA available that is to be exhausted. Termination for refusing light duty may end work comp but it doesn’t end the employee’s right to FMLA.
Oh...and your girlfriend’s mom? Probably not FMLA.