“FMLA was one of my favorite statutes when I was a plaintiffs’ lawyer,” says Attorney Tam Yelling. The law had a great intent, she adds, but it confuses employers.
Yelling says that understanding the Family and Medical Leave Act (FMLA) is simple: Two sentences sum up what employers need to do. Of course, Yelling has packed a lot into two sentences.
1. Eligible employees of covered employers who have a qualifying event and provide appropriate notice and requested certification(s) are entitled to at least 12/26 weeks of health insurance continuation and job-protected leave per defined 12-month period.
2. Covered employers must post appropriate notices, have a comprehensive leave of absence policy, and develop a standard notice/certification procedure to ensure compliance.
Yelling, who is an associate in the Birmingham, Alabama office of Constangy, Brooks & Smith, LLP, made her remarks at the recent SHRM Legal and Legislative Conference in Washington, DC.
She offers the following comments on the recent changes to FMLA laws:
12-Month requirement. In counting the 12 months of employment required to be eligible, employers only have to consider employment within the past 7 years, with two exceptions:
- A break is caused by the employee’s National Guard or reserve military service obligations.
- There is a written agreement to rehire employee after a break in service.
Military caregiver leave. Face the fact that you’ll have to keep two FMLA calendars for people using this type of leave, one for ordinary FMLA and a different one for the caregiver leave, Yelling says. Otherwise, if you don’t pay careful attention, you could end up giving 30 weeks of leave.
Multiple leaves. Be prepared for multiple leaves if, for example, three family members have to care for one serviceperson, or if one employee has more than one serviceperson to care for.
FMLA Notice requirements
This is a real hot potato, says Yelling. She uses “Mitch” as an illustration of why notification documents matter.
“Everyone has a Mitch,” Yelling says. “Mitch is absent all the time. Each time it’s for a different reason—his car broke down; he has the 24-hour flu; he got a flat tire; he didn’t know he was scheduled to work. On several occasions, you talk to Mitch and inform him that if his attendance does not improve, he’s going to be terminated. It does not, and you fire him.
“A year later, Mitch files a lawsuit alleging that he was terminated on the basis of absences that should have been covered under the FMLA. How do you defend? Your only hope is carefully maintained records. Courts and juries don’t expect that employees will have documents, but they do assume that employers maintain a smooth-running operation and that includes complete documentation,” Yelling says.
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Yelling breaks the notice requirements down into four steps:
Step One: Employer Notice
First comes general notice of FMLA to all employees. Yelling suggests that this include:
- DOL poster of employee’s rights and responsibilities under the FMLA
- At a minimum, poster in handbook or distributed once a year (electronic distribution is allowed)
- FMLA policy (recommended) that specifies:
- Substitution of paid benefits
- FMLA call-in number
- Notice and request procedure
Step Two: Employee Notice
Employees have to give notice 30 days in advance or “as soon as possible and practical.” In practice, says Yelling, this means that employees can request leave at the last minute and there’s not much you can do about it.
Step Three: Eligibility/Rights & Responsibilities
Next, within 5 days of receiving employee notice, you must notify the employee of the employee’s eligibility (or not) for FMLA leave.
The employer must also provide written notice detailing the specific expectations and obligations of the employee, including the use of paid leave, and outlining any consequences of a failure to meet those obligations.
DOL’s Notice of Eligibility and Rights & Responsibilities (Form WH-381) provides proper notice to employees.
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Step Four: Designation (form)
Within 5 days of getting information back from the employee (such as a certification), the employer must make a designation determination. DOL’s Designation Notice to Employee of FMLA Leave (Form WH-382) satisfies all regulatory requirements for the notice of designation.
In tomorrow’s Advisor, Yelling reveals the biggest problem she sees with FMLA, and we introduce the extraordinary everything-in-HR website that answers questions about FMLA and just about anything else.
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