Many employers complain that FMLA leave is an unwelcome disruption in the workplace. This is certainly true. FMLA leave can reduce productivity, cause resentment among employees (particularly who aren’t eligible) and disrupt schedules or work plans. Such problems are exacerbated by employees who abuse FMLA to obtain leave for unrelated purposes.
The Family and Medical Leave Act (FMLA) entitles employees of cover employers to take unpaid leave for family and medial reasons. They are also eligible for continued insurance coverage under those same terms and conditions had they not taken leave.
As an HR, it is your responsibility to minimize such problems. Your goal is basically threefold. First, you need to ensure that only eligible employees get FMLA leave. Second, you have to catch any eligible employees who abuse the FMLA leave. Finally, you have to minimize the disruptions caused by the absence of employees who are on FMLA leave. Fortunately, with a few tips, you can easily achieve this three-fold goal. Here are 6 tips for managing leave under FMLA.
1. Create An Up-to-date FMLA Leave Policy
In a survey carried out by the Society for Human Resource Management (SHRM) in 2007, 80% of HR professionals reported having “difficulties in administering FMLA leave.” The main reason for the difficulty was the lack of a coherent FMLA Leave Policy.
Although the survey was carried out 8 years ago, the challenge it highlighted can still be faced today. Unless you have a clear FMLA Leave Policy, you will face problems managing FMLA Leave. As such, the first step is to create an up-to-date leave policy. In this context, “up-to-date” refers to the FMLA itself. Your leave policy should be up-to-date with the latest provisions of FMLA.
So, what should such a policy contain? Well, that depends on your company.
However, some of the things you should clarify include:
- Criteria for FMLA leave eligibility
- The process of applying for FMLA leave
- Supporting documents required of the FMLA leave request
- The mechanism for informing the employee of approvals or denials
- Follow-up mechanisms for investigating FMLA leave abuses
- Sanctions for those who abuse FMLA leave
- The personnel responsible for carrying out various activities related to processing FMLA leave
The bottom line is that you need a policy for managing FMLA leave. The policy need not be fixed or rigid. It doesn’t even need to be detailed. However, it should provide a clear guideline for anyone involved with the FMLA leave process from applicants to supervisors. Having such a guideline will make managing leave under FMLA much easier.
2. Conform FMLA Eligibility Before Granting Leave
In the SHRM survey alluded to above, 39% of HR professionals reported having had to “grant FMLA requests they believed were illegitimate.” The majority did so because they did not clearly understand the eligibility criteria. As such, they decided to err on the side of caution, rather than risk a legal backlash for refusing to grant a genuine request.
One of the biggest ambiguities which HRs had a problem understanding is what constitutes a “serious health condition.” Fortunately, this was clarified in a 2009 Department of Labor revision of FMLA. A “serious health condition” was defined in terms of two things. First, the health condition has to a minimum of 3 full calendar days of total incapacitation. Second, the patient must have had at least two visits to a health care provider within 30 days of being incapacitated.
However, a serious medical condition alone isn’t grounds for FMLA eligibility. Other criteria include: the employee must have worked with you for a minimum of 12 months. She must have accumulated at last 1,250 hours in the 12 months running up to the application. Additionally, your company must have 50 employees who are within a 75-mile radius of the employee’s location.
The point here is that you have to determine the eligibility of the employee for FMLA leave before granting it. In fact you can even preempt applications by letting employees know who is and isn’t eligible. You can make this part of your FMLA leave policy.
3. Use Medical Certifications
The best way to deal with the “serious health condition” ambiguity is using medical certifications. FMLA provisions allow an employer to demand medical certifications in support of an FMLA leave claim. You can use this provision to simplify your leave verification process.
To make the medical certifications count, you have to examine them thoroughly. Each certification should support the leave claim being made. The forms also should be complete, unambiguous and clear. If any employee submits an incomplete or ambiguous certification, don’t hesitate to ask for clarification.
The best way to use medical certifications is to inform the employees in advance that they are required as part of the FMLA leave process. This will give them ample time to acquire them. Even then, there is need for flexibility. In the event where an employee requests FMLA leave on short notice, you can grant them the leave – on an understanding that they’ll present the certification later. Just make sure you use certifications as part of your verification processes.
4. Get Expert Medical Opinion
In case the medical certification isn’t totally convincing (or is so complex that you’re unable to accurately interpret), then you have to consult a medical expert. FMLA provisions allow for getting expert opinions from physicians and other experts. You can reach out to the employee’s physician to get a clarification.
If you don’t believe that the employee’s physician will be objective enough, then you can get an opinion from any other medical professional with the same level of expertise. In fact, consult two others in order to get a diversity of opinion. The most important thing is that you have to be absolutely sure that you are granting FMLA leave to employees who genuinely need it.
5. Record, Track and Analyze FMLA Leave
Some people have quipped that FMLA actually stands for “Friday-Monday Leave Act.” This is because of the observed tendency of employees on FMLA leave to be predictably absent on Mondays or Fridays. Basically, such employees manipulate FMLA the leave to enjoy a longer weekend. This manipulation isn’t limited to weekends either: days around public holidays, or even personal days like birthdays and wedding anniversaries can be manipulated as well.
The bottom line is that employees can exploit FMLA rules to obtain leave in order to pursue their personal agendas. These agendas often have nothing to do with purpose stated in the FMLA leave request. As an employer, it is your responsibility to catch such FMLA abuses.
The best way to catch such abuses is by identifying patterns in FMLA leave requests. You can only do this if you record, track and analyse the leave requests. So, make sure that every FMLA leave is recorded in detail. Then, carry out tracking and verification to ensure that it is genuine.
Finally, carry out periodic analysis to find any patterns. You may be surprised to realize that the seemingly random FMLA requests aren’t that random. You can then carry out a detailed investigation to catch the FMLA abusers and bring them to book.
6. Use The Law To Minimize Disruptions
Simply because an employee qualifies for an FMLA leave doesn’t necessarily mean that they should get it. The law provides employers with certain rights when granting leave. You can use such rights to minimize the disruptions caused by FMLA leave absences.
Some of the ways you can use the law to your advantage include:
- Offer employees block leave options rather than intermittent leave. For instance, instead of granting three separate leave dates for birth, adoption or child placement, offer them one block leave. The law allows for this.
- Require the employees to schedule planned FMLA leave. The law allows for this. In fact, it requires the schedules not to be as less disruptive as possible.
- Negotiate with employees to reschedule their planned FMLA leave to periods which are more favorable for you.
- Even for unplanned FMLA leave options like medical-related conditions, consult the patient’s care giver and ask them for an estimated timeline. The info you get may not be 100% certain, but at least you’ll have something to work on.
These measures can certainly enable you to minimize the impact of FMLA leave disruptions. Even then, the best way to prepare for such disruptions is to have a backup plan. Prepare in advance what you’ll do to cope with the absence of the employee who is on FMLA leave. Decide who will take on their roles in the meantime. This will make dealing with FMLA leave a breeze.
Ultimately, FMLA leave doesn’t have to be as disruptive as some HRs find it to be. It is simply a matter of knowing how to manage it. The above tips can help any HR professional to handle FMLA leave simply, effectively and effortlessly. Therefore, if you have been facing challenges in managing leave under FMLA, now you know what to do. Start by creating a coherent FMLA leave policy, and everything else will fall in place. Best Wishes!