Failing to Track All FMLA—4 Hazards

FMLA
by Stephen Bruce, PhD, PHR

It is generally in your best interest to capture all absences that are Family and Medical Leave (FMLA)‐related, says consultant Kristi McKinzey, PHR. She offers four common hazards employers face when they don’t track all absences.

McKinzey, a consultant with The Robert E. Miller Group in Kansas City, Missouri, was joined by a colleague, attorney Julie Athey, in a recent webinar sponsored by BLR/HRHero®.

Hazard #1: Counting Against Attendance Policy

If you had reason to know an absence was due to an FMLA‐qualifying reason, you can’t count the absence against employees under your attendance policy even if it was never designated as FMLA and even if HR never knew about it—but the supervisor did.

If the supervisor knew about the fact that would entitle the employee to FMLA, “I didn’t know it was FMLA” is no defense, says Athey.

Hazard #2: Retaliation

You can’t always be sure supervisors/managers won’t hold a grudge against employees with repeated absences that haven’t been designated as FMLA, says McKinzey.

There’s a real potential for retaliation claims when managers who allow unexcused absences finally reach the boiling point and go to HR ready to terminate. The situation might escalate something like this:

“Dave, I can’t keep covering for you.”
“Clients want to see you; I need to have you back in the office.”
“I can’t believe HR gave you all that time.”
“We’ve lost clients.”

Managers might think they are doing the best for the team, but the perception can be one of discrimination and retaliation.

Hazard #3: Absences May Not Count

When you finally start treating absences as FMLA, you may have to give the employee the full 12 weeks of leave in spite of absences already taken for the same reason.

Retroactive designation of leave may be possible, says McKinzey, but is often risky. If the decision to retroactively designate is perceived as a detriment to the employee, the designation may run afoul of the FMLA. THE DOL gives the following example:

Henry plans to take 12 weeks of FMLA leave beginning in August for the birth of his second child. However, earlier in the leave year, Henry took 2 weeks of annual leave to care for his mother following her hospitalization for a serious health condition. Henry’s employer failed to notify him at the time of his mother’s hospitalization that the time he spent caring for his mother would be counted as FMLA leave. If Henry can establish that he would have made other arrangements for the care of his mother if he had known that the time would be counted against his FMLA entitlement, the 2 weeks his employer failed to appropriately designate may not count against his FMLA entitlement.


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Hazard #4: Looks Like Discrimination

Inconsistent tracking of leave can give rise to discrimination or retaliation claims in other ways. For example, says McKinzey, initiating FMLA only after repeated absences may look like disability discrimination. (“Why ‘make me’ use FMLA when you don’t require others who qualify to do so?”)

Another common problem is when FMLA-qualifying absences are used as the basis of employment decisions (“I can’t put Bill up for that regional job when he has to take care of his wife all the time.”). You can’t consider those absences in making your decision.

Minimum Increment of Leave

Minimum increment is confusing to many employers, says Athey. Employers might adopt a minimum increment of leave because it:

  • Reduces administrative burden of tracking small increments of leave,
  • Improves predictability in staffing, and
  • Prevents employees from taking a few minutes of leave here or there, indefinitely.

Your minimum increment of leave must be no longer than the minimum increment used for other forms of leave, and your minimum increment can’t be longer than 1 hour.
Furthermore, you may not deduct more leave than the employee actually took.

How it works: Say you require paid time off (PTO) to run concurrently with FMLA and you require PTO to be taken in 4‐hour increments. Your employee takes 3 hours of FMLA leave for some medical tests. You may dock 4 hours of PTO, but only 3 hours (amount of leave actually taken) may be counted as FMLA.

Or, say you require employees to take FMLA leave in minimums of 1-hour increments.
Your employee is 30 minutes late to work due to an FMLA‐covered physical therapy appointment. You have two choices. You may:

  • Delay the employee’s return to work until an hour of leave has been taken; or
  • Return the employee to work but only dock for 30 minutes of leave.

Prohibiting Company Work While on FMLA Leave

State specifically in your FMLA policy that employees should not do company work while on FMLA leave. If they do work, they should report any hours so that they can be paid and so that the time is not deducted from FMLA. (Answering a quick question is OK, Athey says, but real work should be paid and not counted.)


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What Is a “Week” of Leave?

Many think that 12 weeks of leave means 480 hours of leave, but actually, the definition of 1 week of FMLA leave varies depending on the employee. It’s based on the number of hours the employee usually works. So, for example, if an employee normally works 45 hours a week, he or she is entitled to up to 540 hours of FMLA.

Variable Work Schedules

If the employee’s schedule varies from week to week, use a weekly average of hours the employee was scheduled to work. Take the 12-month period before the beginning of the leave, and be sure to include hours for which the employee took any type of leave.

Holidays During FMLA Leave

If FMLA leave lasts less than a week, a holiday cannot be counted as FMLA (unless the employee was scheduled to work on that holiday).

However, if FMLA leave lasts a full week or more, the holiday can be counted as FMLA. Nevertheless, some employers choose not to count the holiday, even though the regs allow it.

Whatever you decide, include a statement in your FMLA policy.

In tomorrow’s Advisor, tricky retroactive designation scenarios plus an introduction to the all-things-HR-in-one-place website, HR.BLR.com.

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