Just as the Family and Medical Leave Act (FMLA) can be complicated, so can getting your supervisors on the same page when it comes to administering FMLA leave. The following tips should help when training supervisors about FMLA leave and what they should do if they suspect fraud or abuse:
- Conduct annual FMLA “refresher” training for all supervisors.
- Begin each FMLA training session with a friendly reminder that the FMLA is one of the few laws that allows individual supervisor liability (which should guarantee at least marginal attention for the remaining tips).
- Request that all information concerning the medical and health issues of employees and their immediate family members (spouse, parent, or child)—including questions they may have about whether their particular situation qualifies for FMLA leave—flow to HR.
- Convey that it is OK to track patterns of FMLA leave that seem suspicious (e.g., employees who use intermittent FMLA leave only on Fridays or around company holidays).
Emphasize again that communications about suspicious leave should be conveyed to HR with care. If written documentation is provided, it should be free of any editorial comments and summarize accurately the dates or other factual circumstances involved.
- Inform supervisors of their rights under the FMLA. (Most will be surprised to learn they have any!) A supervisor has the right to:
- Know whether an approved FMLA leave is related to the employee’s or a family member’s serious health condition;
- Be notified by the employee using the company’s “call ahead” policy that he or she is going to miss work, even after he or she has been approved for intermittent FMLA leave; and
- Ask for some details about why the employee needs to be out on a particular day. (The employee can’t just say “It’s FMLA leave” and hang up the phone.) The supervisor is entitled to know whether the employee needs to be off for planned medical treatment or because of a sudden symptom flare-up.
The supervisor is not entitled to intimate details about what the condition is or specifically how it is flaring up. Rather, the supervisor can simply ask, “Is your absence for a doctor’s appointment?” If it is learned that the employee is missing time because of doctors’ appointments, the employee should let HR know so the appointments can be coordinated in advance whenever medically possible.
- Prohibit negative comments about FMLA leave both in general and about particular employees on the basis of requests for and/or use of leave. (A quick reference to tip #2 should help here.)
- Provide supervisors with a written “quick reference guide” outlining the various qualifying reasons for FMLA leave so they can spot potential FMLA-qualifying absences and know when to consult HR before implementing leave-related discipline. DOL’s new employee reference guide would be very good for this purpose.
- Debunk FMLA “myths” (e.g., that taking FMLA leave requires an employee to stay confined to his or her home or requires a doctor’s note every time the employee is out of work on leave).
- Describe employees’ rights under the FMLA (e.g., job protection, no performance review or raise delays because of or upon return from FMLA leave, and no attendance points docked for time missed while on leave). The U.S. Department of Labor’s new Employee Guide to the FMLA could be used for this purpose.
- Cover the “rights” the FMLA does not provide, including:
- Paid leave (unless the employee has accrued sick or vacation time);
- Bonuses based on perfect attendance or other criteria (unless the employee objectively earns them); and
- Exemption from discipline for failing to follow the company’s usual notice-of-absence requirements (although employees are exempt from being disciplined for the absences themselves).