Leave Management, Policy, and Compliance

FMLA: Substance Abuse? Holidays? Multiple SHCs?

FMLA just won’t get easier. It seems that every request for FMLA has some new twist. Today, we’ll unravel a few twisted misconceptions your managers and supervisors may have.

In yesterday’s Advisor, we busted some myths concerning FMLA leave. Today, some of the thorniest questions readers ask, plus an introduction to the “FMLA Bible.”

Do I really have to approve leave for treatment of substance abuse?

Substance abuse may be a serious health condition if one of the tests for establishing a "serious health condition" is met. However, FMLA leave may be taken only for treatment of substance abuse by a healthcare provider or by a provider of healthcare services on referral by a healthcare provider. Absence because of the employee’s use of the substance, rather than for treatment, does not qualify for FMLA leave. This distinction is important.

Treatment for substance abuse does not prevent an employer from taking employment action against an employee. However, an employer may not take action against an employee because the employee has exercised his or her right to take FMLA leave for treatment.

If the employer has an established policy, applied in a nondiscriminatory manner, communicated to all employees, and that provides under certain circumstances an employee may be terminated for substance abuse, the employee may be terminated pursuant to that policy even if the employee is presently taking FMLA leave.

Note: An employee may also take FMLA leave to care for a covered family member who is receiving treatment for substance abuse.

An employee is on intermittent FMLA for migraines. She has now requested FMLA for surgery. Can she take two types of FMLA?

As you are aware, the FMLA allows eligible employees to take up to 12 workweeks for leave during any 12-month period for, among other things, the employee’s own serious health condition.

In your situation, if the employee’s illnesses qualify as serious health conditions, she may be entitled to FMLA leave, but she is only entitled to a total of 12 weeks in a 12-month period. Therefore, the amount of leave she is entitled to take for surgery would be reduced by the amount of leave she has taken for her migraines in the relevant 12-month period.

FMLA—the #1 hassle of 2011? Likely.  BLR’s compliance guide is ready to help now. Click here to find out more about the Family and Medical Leave Act Compliance Guide.

A school district employee takes 12 weeks of FMLA beginning in November. Is the two-week Christmas break counted as part of the 12- week FMLA?

For purposes of determining the amount of leave used by an employee, the fact that a holiday may occur within the week taken as FMLA leave has no effect, and the week is counted as a week of FMLA leave. However, if an employee is using FMLA leave in increments of less than 1 week, the holiday will not count against the employee’s FMLA entitlement unless the employee was otherwise scheduled and expected to work during the holiday.

Similarly, if for some reason the employer’s business activity has temporarily ceased and employees generally are not expected to report for work for 1 or more weeks (e.g., a school closing of 2 weeks for the Christmas/New Year holiday or the summer vacation or an employer closing a plant for retooling or repairs), the days on which the employer’s activities have ceased do not count against the employee’s FMLA leave entitlement.

Thus, the school district would not count the two weeks that school was closed against the employee’s 12 weeks of FMLA.

It’s an almost overwhelming task to keep up with the FMLA, and recent, far-reaching changes haven’t helped. And that’s to say nothing of the devilish complexity of marrying FMLA with ADA and workers’ comp. Good news! BLR’s editors have gone the extra mile to get your comprehensive compliance guide up to date.

BLR’s recently updated Family and Medical Leave Act Compliance Guide—the book some are calling the “FMLA Bible”—simplifies the frustrating and confusing complexities of the FMLA, so you know exactly how to comply in every situation.

It contains practical answers to all the FMLA questions you are asking—and the ones you haven’t thought of but should be asking.

A whirlwind of changes has hit the FMLA—are you ready to comply? Order the “FMLA Bible” and find out what you need to do. You’ll get expert FMLA guidance, forms, and concrete examples. Find out more.

The Family and Medical Leave Act Compliance Guide includes:

  • Leave law overview
  • All the new forms and advice on how to use them
  • Practical guidance on implementing all aspects of the new rules
  • Analysis of federal and state laws, what they require, and how they interact
  • Leave circumstances, coverage, and eligibility—for FMLA, ADA, workers’ comp, and military leave
  • Recordkeeping and reporting requirements
  • Reasonable accommodation
  • Sample policies and forms
  • Plus a quarterly newsletter and updates to make sure you stay in compliance as any changes come about

Get more information or order your copy of the Family and Medical Leave Act Compliance Guide.

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