The purpose of the Family and Medical Leave Act (FMLA) is to protect eligible employees from job loss following specified family events and medical diagnoses. As an employer, you’re probably aware of the challenges that can arise when an employee requests FMLA leave. Indeed, everyone from your supervisors to your HR staff must be well trained and cognizant of the importance of carefully determining eligibility.
Reasons for leave
The FMLA applies to private-sector employers, including nonprofits, with 50 or more employees working 20 or more workweeks in the current or preceding calendar year. Publicly funded agencies and schools are subject to the law regardless of their number of employees.
Under the law, eligible employees may take up to 12 weeks of unpaid, job-protected leave within a 12-month period for specified family and medical reasons. According to the U.S. Department of Labor (DOL), these reasons include:
- The birth of a child or to care for a newborn,
- The placement of a child with an employee for adoption or foster care, “and to care for the newly placed child within one year of placement,”
- To care for an employee’s spouse, child or parent with a serious health condition,
- To address an employee’s own serious health condition that prevents the individual from performing essential job functions, and
- To manage “any qualifying exigency” arising from a family member’s active-duty military service.
In addition, the law allows qualifying employees to take up to 26 work weeks of leave within a 12-month period to care for a covered military service member with a serious injury or illness.
Eligibility verification
Every employer should have a formal process, vetted by a qualified attorney, for verifying FMLA leave eligibility. It should begin by making sure each applicant:
- Works for your organization,
- Has worked for your organization for at least 12 months (not necessarily consecutive),
- Has completed at least 1,250 service hours during the 12 months preceding the would-be leave period, and
- Works at a location where your organization has 50 or more employees within a 75-mile radius.
Only after confirming those basic facts should you evaluate the applicant’s reason for leave. Obviously, it must align with one of those listed above. Let’s say it’s a situation involving a medical issue. In such cases, the DOL stipulates: “An employer may require that the need for leave for a serious health condition of the employee or the employee’s immediate family member be supported by a certification issued by a health care provider.” You must, however, allow employees at least 15 calendar days to obtain the certification.
Now, let’s say the employee submits a certification from a physician, but you find it unsatisfactory because the medical explanation is vague, incomplete or illegible. In this event, you must:
- Inform the employee that the certification is insufficient to support the leave request,
- Specify what additional information is needed, and
- Give the applicant at least seven business days to fix the shortcomings.
If the deficiencies aren’t resolved within that time frame, you may have legal grounds to deny the leave request, though you should still consult an attorney.
Sometimes, even if the explanation makes sense, you may doubt the validity of an employee’s FMLA leave certification. Here, you may ask for a second opinion from a health care provider of your choosing. Just be sure your organization doesn’t employ or regularly contract with the provider. If the second opinion provider disagrees with the employee’s provider, you may require a third opinion from a provider that you and the employee choose together. You must abide by this third provider’s opinion.
High-risk area
To be clear, we’ve touched on only a couple of the issues that can come up when evaluating employees’ eligibility for FMLA leave. The point is that this is a high-risk area: Mishandling FMLA leave in any way can lead to costly DOL investigations, noncompliance penalties and lawsuits. If disputes become public, they can lower workplace morale and damage your employer brand.
Work with a qualified attorney to develop, administer and regularly reevaluate your FMLA policies. Meanwhile, contact us for help identifying, tracking and managing all your compliance costs.
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