Ask most HR managers what their biggest headache is, and about 90 percent say “FMLA.” From eligibility to notifications to managing intermittent leave, it’s an ever-present problem.
FMLA abuse is a problem in its own category, although abuse can be tamed to some extent, according to attorney Nancy M. Cooper, a partner in the Portland, Oregon office of Garvey Schubert Barer. Cooper shared her FMLA expertise in a recent audio conference.
According to Cooper, the FMLA is what she calls a mind-reading statute—that is, it offers protections, but there are no magic words employees have to use, so it’s up to the employer to be on the lookout for potentially qualifying illnesses. And, to make matters more complicated, many states—including California—have their own family leave laws. The law more friendly to the employee takes precedence.
The first place that abuse starts is with eligibility. Employers want to do the right thing, so they approve leave without taking the time to make sure that the employee is eligible (has worked for 12 months and 1,250 hours during the 12 months immediately preceding the leave and works at a site with 50 employees or more or where there are 50 employees or more within a 75-mile radius of the worksite).
These eligibility situations are often not actual cases of deliberate fraud, she says—employees just don’t know the rules and employers don’t bother to check.
The next place to look for abuses is with the reasons for taking leave. It is important, Cooper says, to take the time to see if the health condition meets the FMLA definition for “serious health condition.” Many employers just don’t take the time to check, for example, on the period of incapacity.
Our HR Management & Compliance Report: How To Comply with California and Federal Leave Laws, covers everything you need to know to stay in compliance with both state and federal law in one of the trickiest areas of compliance for even the most experienced HR professional. Learn the rules for pregnancy and parental leaves, medical exams and certifications, intermittent leaves, required notices, and more.
Remember that in dealing with the FMLA, it’s important to get clocks ticking. Cooper says she has seen a number of instances where employers forgot to get all the clocks ticking and ended up with “stacking” (granting leaves one after another that could have been taken concurrently).
For example, the employee goes out on workers’ compensation, but the employer forgets to get the FMLA clock ticking. Or, policies require using accrued time, so employers forget to get the leave clocks ticking right from the beginning.
Cooper had one client who had paid so little attention to preventing stacking that an employee had been on protected leave for about a year and a half, through workers’ compensation, then FMLA, then state law FMLA, then accrued leave, and it wasn’t over even then—ADA issues were looming. This was all just because the employer had not paid enough attention.