ERC’s 2013 “FMLA Straight Talk” program featured presentations from the U.S. Department of Labor Wage and Hour Division, Frantz Ward, and ERC Preferred Partner – CareWorks. The program focused on a case study, and each of the presenters provided their perspective on three ways employers can reduce their Family Medical Leave Act (FMLA) liability based on lessons learned in the case. These lessons include following FMLA requirements, using effective employee relations practices, and properly managing FMLA claims.
1. Following FMLA Requirements
Following FMLA requirements can help prevent an organization from running into compliance issues with FMLA. Joann Moriarty from the U.S. Department of Labor led the program and emphasized the following as aspects that the DOL would look at if this case was brought to their attention – specifically related to the following FMLA requirements.
- Employer coverage:
- Does the employer need to provide FMLA?
- Does the organization have 50 or more employees?
- Employee eligibility:
- Is the employee employed by the covered employer?
- Has the employee worked at least 12 months?
- Does the employee have at least 1,250 hours of service during the 12 months before leave begins?
- Is the employee employed at a work site with 50 employees within 75 miles?
- Qualifying leave reasons: Does the eligible employee have a qualifying leave reason…
- For the birth or placement of a child for adoption/foster care
- To care for a spouse, son, daughter, or parent with a serious health condition
- For their own serious health condition – an illness, injury, impairment, or physical/mental condition involving inpatient care or continuing treatment by a health care provider
- Because of a qualifying reason out of the covered active duty status of a military member
- To care for a covered service member with a serious injury or illness
- Employer responsibilities:
- Did the employer provide notice within the appropriate timeframe?
- Did they maintain group health insurance?
- Did they restore the employee to the same or equivalent job and benefits? Did they maintain appropriate records?
- Did the employer not interfere with, restrain or deny employees’ FMLA rights?
- Did the employer not discriminate or retaliate against the employee because of their involvement in anything related to FMLA?
- Did the employer not use the taking of FMLA leave as a negative factor in employment actions?
- Employee responsibilities:
- Did the employee provide sufficient and timely notice of the need for leave within 30 days if foreseeable or as soon as possible if not foreseeable?
- Did the employee specifically reference the qualifying reason for the need for FMLA leave?
- Did the employee provide certification to support the need for leave, periodic status reports, and fitness for duty certification (if requested)?
- Did the employee consult with the employer regarding scheduling of planned treatment?
- Did the employee comply with the employer’s usual procedural requirements for requesting leave absent unusual circumstances?
These are just some of the major requirements of FMLA that employers should ensure that they are following, according to the Department of Labor.
2. Using Effective Employee Relations Practices
Rebecca Bennett, Attorney at Franz Ward, followed Moriarty and educated participants on typical questions an attorney would ask when faced with this case. Bennett focused especially on issues of discipline, options employers can consider besides discipline/termination to curb leave abuse, and potential liability of the employer and supervisors.
In terms of discipline, Bennett advised that while employers can discipline an employee on FMLA, they should do so with great caution. Specifically, Bennett said that if you have a specific procedure and an employee did not follow it, first counsel the employee and document the issue. Be reluctant to issue discipline on the first occurrence, and give the employee a second chance. Similarly, when disciplining employees, before doing so, employers need to be certain that they are holding all employees to the same standard and enforcing discipline consistently. Bennett says that employers run into issues when they “nitpick” employees on leave and no one else.
Bennett advises other options that the employer could have considered in the case to curb abuse of leave. Specifically, employers can request more information about the medical condition and whether the employee can perform the essential functions of the job as a result of the condition. Additionally, the employer could have considered recertifications for intermittent leave, possibly transferred the employee to another position, and scheduled leave to avoid disruption to the business.
Potential FMLA liability costs for employers are back wages, liquidated damages, and attorney fees, according to Bennett. Bennett also said that individual liability can fall on supervisors under FMLA, so it’s important to provide anyone with managerial responsibilities with broad training on FMLA.
3. Properly Managing FMLA Claims
Ron Lucki, Director of Business Development at CareWorks closed the program by emphasizing the importance of properly managing employee absence and FMLA claims, and how a mismanaged approach may lead to increased liability. Specifically, he says that there are five “musts” for employers relative to decreasing their likelihood of FMLA liability when managing and administering FMLA: centralized intake, supervisor knowledge, quality clinical management/claim administration, return to work programs, and data/reporting.
Lucki commented that decentralized intake of FMLA throughout the organization can result in not capturing all absences. A centralized intake and reporting process is advised. Similarly, proper clinical and claim management is necessary to manage claims, as there may be inappropriate approvals of FMLA claims, prolonged time off for employees, overtime work/lower productivity/decreased employee morale, possible miscalculation of hours, and lack of attention to ADA requirements. Proper management can also result in better absence reporting (such as trends in utilization and absences) which can help curb utilization and loss of productivity.
Also, like Bennett, Lucki touched on the importance of supervisor knowledge of FMLA as supervisors can be sued directly and held personally liable for FMLA claims. In addition to participating in training on FMLA, supervisors should understand the right questions to ask employees when faced with an FMLA issue.
Finally, Lucki advises that an appropriate return to work transition is put into place, including reinstating employees on time, dealing with extensions of leave, and understanding obligations under ADA.
Overall, the program provided employers with a number of tips to help them stay compliant when dealing with FMLA and to prevent liability.
Please note that by providing you with research information that may be contained in this article, ERC is not providing a qualified legal opinion. As such, research information that ERC provides to its members should not be relied upon or considered a substitute for legal advice. The information that we provide is for general employer use and not necessarily for individual application.
FMLA Administration & Absence Management Services
CareWorks USA, ERC’s Preferred Partner, provides FMLA administration services to employers including absence tracking and reporting, communication with employers and employees, compliance with leave requirements, and web-based claim access.