By Lisa Nagele-Piazza, J.D., SHRM-SCP
HR professionals who manage family and medical leave know that leave laws are complex, which makes compliance difficult. So having sound policies and practices is critical.
“Whatever your policy is, make sure you’re consistent with it,” said Eric B. Meyer, an attorney with FisherBroyles in Philadelphia. He spoke during a June 25 mega session at the Society for Human Resource Management 2019 Annual Conference & Exposition.
Orielle Hope, a conference attendee with 12 years of HR experience, said she was looking to “get into the weeds” of Family and Medical Leave Act (FMLA) compliance to ensure that her organization is doing things the right way and treating employees fairly. Hope is the director of talent arts at Arbor Acres Retirement Community in Winston-Salem, N.C.
Here are five tips Meyer gave for managing time off under the FMLA.
1. Develop comprehensive policies.
The FMLA sets numerous coverage and eligibility rules. Businesses with at least 50 employees must provide up to 12 weeks of unpaid leave a year to eligible workers to treat their own illness, to care for a sick relative or for baby bonding.
Employees who work at a location where the business employs at least 50 workers within a 75-mile radius are eligible for leave if they have worked for the employer for at least 12 months and for 1,250 hours during the previous 12-month period.
So what happens if an employer’s policy leaves out critical eligibility information? If an employer leads workers to believe they are eligible for FMLA leave when they are not, the employees may have a valid legal claim under the act.
“You can be more employee-friendly,” Meyer noted. “If you want to lower the bar … knock yourself out, but you can’t raise the bar.” Employers can’t say, for instance, that only employees at worksites with 100 or more employees are eligible.
2. Define the 12-month period.
Eligible employees may take up to 12 weeks of unpaid leave in a 12-month period—but the 12-month period can be measured in several ways:
- A calendar year.
- Any fixed 12-month period (such as a fiscal year or the period starting on an employee’s anniversary date).
- The 12-month period starting from the date an employee’s FMLA leave begins.
- A rolling 12-month period measured backward from the date an employee uses any FMLA leave.
The method that makes the most sense may depend on the business. “Make sure that you define what the leave year is,” Meyer said. If employers don’t define it, then employees can measure the leave period in whatever way is most beneficial to them.
3. Properly designate the leave.
“Designate FMLA leave as such, and be consistent,” Meyer said.
In a recent opinion letter, the U.S. Department of Labor (DOL) said that once an employer knows a leave of absence qualifies under the FMLA, it must designate it as FMLA leave, even if the employee wants to first exhaust paid-time-off benefits. Although opinion letters are not binding, there may be a safe harbor for employers that show they relied on one.
In contrast, the 9th U.S. Circuit Court of Appeals ruled in Escriba v. Foster Poultry Farms Inc. that an employee may decline to designate time off as FMLA leave, even if the reason for the leave qualifies for such job-protected time off. The 9th Circuit includes Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington.
The best thing to do in the 9th Circuit is to let the employee choose, Meyer said. But employees who decide not to take FMLA leave will not get the job protections that come with it, he noted.
Elsewhere, employers should designate the leave as FMLA leave.
4. Consider reasonable accommodations.
Some employers make the mistake of requiring an employee to be cleared to return to “full duty” after FMLA leave, which could create a problem. Employers may have an obligation under the Americans with Disabilities Act (ADA) to provide a reasonable accommodation, even after an employee’s FMLA leave ends.
“If you want someone to come back to work … and certify that they can perform the essential functions of the job with or without a reasonable accommodation, that’s different than certifying that they’re 100 percent healed,” Meyer said. “Don’t do that.”
Providing the employee with a list of essential job functions can lead to a discussion about the ADA and reasonable accommodation. Make sure job descriptions are up-to-date, and engage in a dialogue with the employee, he recommended.
Employers should also explore additional leave as a potential accommodation under the ADA.
5. Check state laws.
The FMLA sets the minimum standards, which means that states can opt to provide more-generous leave options for employees. States that have their own family and medical leave laws include California, Connecticut, Hawaii, Maine, Minnesota, New Jersey, Oregon, Rhode Island, Vermont, Washington and Wisconsin, according to the DOL. Washington, D.C., has also enacted family and medical leave requirements.
Some state laws expand the amount of leave that may be taken or add to the definition of covered family members.
In closing, Meyer said, “Train your managers. Train your managers. Train your managers.”
[Visit SHRM’s resource page on the Family and Medical Leave Act.]