The Many Facets of FMLA Administration
I recently returned from the Virginia SHRM State Conference in Norfolk. One of the many concurrent sessions offered was, Managing Intermittent FMLA: Top Tools for Curbing FMLA Abuse, by David A. Kushner of Wilcox Savage. Just when you think you’ve heard or seen it all, I learned something new.
The Family and Medical Leave Act (FMLA) is now 26 years old, and is cited as a top frustration by both managers and HR professionals. The FMLA process typically works like this. Your employee informs you that he/she has a serious health condition and will need to be out of work – either in one single block of time or periodically, i.e., intermittently. In most cases, if the employee’s physician certifies that the employee has a serious health condition, he/she may be eligible for up to 12 weeks of job protection.
An employee has to be employed for 12 months and must have worked 1250 hours in the last 12 months. Finally, an organization has to have 50 employees located within 75 miles of their location(s) in order to be eligible for FMLA protection.
Points To Be Mindful Of
I have found the biggest misconception employees have of FMLA is that it provides protected time off with pay. Unless an employee has accrued sick or vacation time or has a short-term disability benefit, FMLA’s protected time will be without pay. FMLA is simply ‘job protection’, i.e., your employer cannot fill your position while you are out on FMLA-protected time.
Also, an employee does not have to actually request FMLA. The employee only has to give a supervisor enough information such that the employer should know it may qualify for FMLA. In other words, HR needs to say to the employee, “You’ve been out (insert dates) and we’d like for you to complete this FMLA paperwork.” The employee is protected, so you might as well designate their time off. However, if the employee does not return the completed document, then it is not protected leave. If the document is returned very late, the first 15 days could be protected time. So, don’t count the first 15 days, particularly if you’re about to terminate the employee for excessive absenteeism.
HR provides employees with 15 days to complete and return their certification paperwork. This includes the section completed by his/her physician. Once received, HR has five days to provide the employee with the answer as to whether the employee’s request is approved or denied.
If the employer wishes to authenticate whether the employee’s doctor actually signed, and wishes to speak with the doctor, you will need to obtain a Health Insurance Portability Accountability Act (HIPAA) waiver. It can be obtained from the Department of Labor (DOL) website.
At the conference, I was surprised to learn of a new website: www.bestfakedoctorsnotes.net. Employees can download the note they like best, and they’re good to go. Can you believe it?
Recertification, whereby the employee is required to ‘recertify’ their need for FMLA protection, comes into play when absences occur after the date by which the condition is expected to last. For example, if the employee’s condition is expected to last two months, recertification is allowed with the first new absence after two months has expired. If you give the document to the employee to give to his/her doctor, you do not need to obtain a HIPAA waiver.
If you suspect abuse, you can require a second opinion, though this cannot be used for recertification. It must be an independent medical provider and the employer pays. If this doctor disputes the original certification, a third opinion becomes necessary. This is a frustrating tool, and, fortunately, is rarely used. Consider its use on Annual Certification and for a new leave request by a previously abusive employee.
The Expiration of Leave
When the employee’s leave expires, you may still have obligations under the Americans with Disabilities Act (ADA) and state laws. It is possible that the employee’s impairment may also be covered under the Americans with Disabilities Act (ADA). Place the burden on the employee by sending a pre-expiration letter. Tell the employee what information you would need to consider for additional leave, and that such leave is not guaranteed.
It’s important to train your supervisors to spot FMLA requests and to track leave. Set up a system in which you are calendaring recertification and annual certification opportunities. And finally consider legal advice before disciplining or terminating an employee where there is any association with FMLA.