Personnel e.bulletin – March 2016

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FMLA – Know When to Keep Your Mouth Shut!
Prepared for the PHCC Educational Foundation by TPO, Inc.

The Family and Medical Leave Act (FMLA) gives employees the right to take unpaid leave for specified family and medical reasons. If your company is covered by and your employees are eligible under the FMLA, you CAN’T do the following: interfere with any right given to an employee under the FMLA; or terminate or discriminate against an employee for opposition to a practice made unlawful by the FMLA or for involvement in any proceeding under or concerning the FMLA. Those two points form the backbone for FMLA compliance and this article.Once you’ve established that your company and employees are covered by the FMLA, you must avoid even the appearance of disrupting the rights of an employee, or else risk FMLA-related litigation. It’s best to stick to the script provided by the Department of Labor (DOL).

Eligibility Under the FMLA
A private sector employer is covered by the FMLA if it has 50 or more employees who work at least 20 weeks in the current or preceding calendar year.

Employees are eligible for FMLA leave if they:

  • Work for a covered employer
  • Have worked 1,250 hours during the 12 months before the start of leave
  • Work at a location where the employer has 50 or more employees within 75 miles
  • Have worked for the employer for 12 months, which do not have to be consecutive.

An employee can request FMLA leave of up to 12 workweeks in a year for specific reasons, such as the birth and care for a newborn child; the placement of a child for adoption or foster care and care for the newly placed child within one year of placement; a serious health condition that prevents the employee from performing essential functions of his or her job; or care of a spouse, child, or parent with a serious health condition. Consult the DOL’s FMLA website for the full list of qualifying reasons.

Also keep in mind that some states have laws that differ from the DOL’s FMLA requirements.  Make sure to consult your state’s laws in determining whether your company and employees are eligible.

The Do’s
If an employee requests FMLA leave for a qualifying reason and your company is covered, here’s how you should respond.

1. Provide a notice of eligibility and a notice of rights and responsibilities. You must inform your employee whether he or she is eligible for FMLA leave within five business days of a request or of finding out that an employee leave request may be for a reason covered under the FMLA. With each notice of eligibility, you must also inform the employee of his or her rights and responsibilities under the FMLA. You do not have to use it, but the DOL provides a form (Form WH-381, http://www.dol.gov/whd/forms/WH-381.pdf) in which you can include the appropriate information for those notices to employees.

You must also be responsive to employee questions about their FMLA leave.

2. Provide a notice of designation. Within five business days of knowing whether the requested leave qualifies under the FMLA, you must notify the employee of that designation. If the leave doesn’t qualify under the FMLA, you can provide a simple written statement. If you don’t have enough information to make the determination, you can indicate that in your notice of designation. The DOL also provides a notice of designation that you can use – Form WH-382  (http://www.dol.gov/whd/forms/WH-382.pdf).

3. Require medical certification. If the employee is requesting FMLA leave because of a serious health condition or to care for an eligible family member with a serious health condition, you can require medical certification. You must give notice that you are asking for medical certification in the notice of the employee’s rights and responsibilities, discussed above. The employee has 15 calendar days to complete the certification.

If the certification is incomplete or insufficient, you must give the employee a written notice that additional information is necessary to complete it, and the employee has seven calendar days to provide that information.

The FMLA doesn’t require specific forms for medical certification, but the DOL provides optional forms for certification of an employee’s condition (Form WH-380-E) or a family member’s condition (Form WH-380-F).

http://www.dol.gov/whd/forms/WH-380-E.pdf   http://www.dol.gov/whd/forms/WH-380-F.pdf

The employer may also require second and third opinions, as well as recertification if the employer meets specific requirements. See the DOL’s FMLA website for those requirements, and make sure you check it for more details on each of these steps of communication.

Stick to the facts and to those steps and requirements, and you’ll be less likely to incur penalties concerning the FMLA.

The Don’ts
When an employee makes a request, your response should be compassionate, nonjudgmental, and objective. Importantly, if the DOL doesn’t allow a response, avoid it.  Just saying one of the following wrong things – even after approving an employee’s leave – has led to litigation under the FMLA.  For further details on the specific cases, see http://www.hrmorning.com/3-things-you-cant-say-after-fmla-requests/.

In response to an FMLA request:

DON’T Say: That you “expect employees to be at work.”

For example, avoid saying that your insurance plan covers the employee, so he or she should be working. If you say that and later terminate the employee for cause, the employee can bring a suit questioning whether he or she was fired for FMLA-related reasons.

DON’T Say: That an employee is “being inconsiderate.”

Of course it can be difficult on your company and other employees when an employee takes a significant amount of time off. However, resist the temptation to express this to an employee requesting FMLA leave. If you say the employee is being inconsiderate and that other employees will have to pick up the slack, even if that employee is awarded FMLA leave, he or she could bring a suit based on interference with FMLA rights. The claim could say that the employee was prevented from taking more FMLA leave because he or she was made to feel guilty for doing so.

DON’T Imply: That you or another manager is mad about the request.

Expressing irritation or even telling your employee that you or someone else is frustrated with the FMLA request could form the basis for an interference suit. The employee could claim that what you said deterred him or her from fully exercising rights granted by the FMLA, such as requesting additional leave.

In addition to those three clear cases, DON’T try to play doctor.  For example, DON’T say you saw an employee completing a task, so the employee must not have a serious health condition. The FMLA permits employees to prioritize their own health and well-being. You aren’t a doctor and therefore can’t make a determination of whether a condition is serious, so follow the DOL’s prescribed steps, and leave the certification up to medical professionals. Otherwise, if you ever take an adverse action against the employee requesting leave, the employee can use your response in a retaliation lawsuit.

Conclusion
Although the requirements under the FMLA can be detailed and require careful verification, it’s important that you understand if and how it applies to your company. It’s just as important that you understand how you can and can’t respond to employee requests for FMLA leave. If you take the time to ensure that you respond to employee requests only in the systematic and fact-based ways prescribed by the FMLA, you’ll be more likely to save your company time and money by preventing penalties or lawsuits.

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This content was developed for the PHCC Educational Foundation by TPO, Inc. (www.tpo-inc.com). Please consult your HR professional or attorney for further advice, as laws may differ in each state. Laws continue to evolve; the information presented is as of February 2016. Any omission or inclusion of incorrect data is unintentional. Please note this article is not intended to provide legal advice or to substitute for supervisor employment law training.

The PHCC Educational Foundation, a partnership of contractors, manufacturers and wholesalers was founded in 1987 to serve the plumbing-heating-cooling industry by preparing contractors and their employees to meet the challenges of a constantly changing marketplace. If you found this article helpful, please consider supporting the Foundation by making a contribution at http://www.phccfoundation.org.

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