Biggest Failure
The biggest problem with FMLA is frontline supervisors who have heard clear notice of the need for FMLA, but who didn’t understand what it meant or what to do, says Attorney Tam Yelling
Training is, of course, the answer. Supervisors and managers need to be trained that requesters don’t need to use any magic words or specifically mention “FMLA,” as long as they provide information sufficient to make the employer aware that the employee needs FMLA leave and the expected timing and duration of the leave, Yelling says.
Yelling, 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.
In today’s Advisor, she continues her FMLA update. (Go here for yesterday’s tips.)
Return from Leave
Under the new rule, Yelling notes, the employer may require the healthcare provider to actually assess whether the employee has the ability to perform the essential functions of the employee’s job (fitness-for-duty assessment), but only if:
- The employee was given written notice that a fitness-for-duty assessment will be required before his or her return; and
- The list of essential functions is provided at the time employer gives written notice; and
- The employee is advised in writing of consequences for his or her failure to comply.
Bonuses and Awards
For bonuses, an employee who has not met a goal because of FMLA leave may be disqualified unless the bonus is paid to others who are on an equivalent leave status.
For attendance awards, an employee who misses the goal because of FMLA leave may be denied the attendance bonus. (Again, the policy must apply equally to all employees who are on an equivalent leave status.)
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Action Items
Yelling suggests that HR managers review the following action items to be sure that they are in compliance with the new FMLA:
- Obtain and post the new poster.
- Update your handbook to include:
- New leave entitlements
- Paid time coordination
- Workers’ compensation/short-term disability coordination.
- Update leave request procedures, including:
- Notice (handbook)
- Leave notice, request, and call-in procedures.
- Obtain new forms and plan your procedures.
- Eligibility/responsibility form
- Designation form
- Certification forms
- Train supervisors and managers.
- What constitutes notice
- What may constitute a qualifying event
- What to do; whom to call
- Study new medical certification form and decide who will make the determination of whether a serious health condition exists based on returned forms. The healthcare professional no longer makes that call, Yelling explains; the employer does.
FMLA changes are a major hassle for sure, but really just one of dozens of challenges on the HR desk. What about new COBRA rules, wage and hour, ADA accommodation, and harassment, to name just a few?
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