Ask most HR managers what their biggest hassle is, and about 90 percent say “FMLA.” From eligibility to notifications to managing intermittent leave, it’s an ever-present problem.
Additionally, the family leave laws are also widely abused. However, the good news is that abuse can be tamed to some extent, says attorney Nancy M. Cooper.
Cooper, who is a partner in the Portland, Oregon, office of Garvey Schubert Barer, shared her FMLA expertise in a recent audio conference sponsored by ERI’s parent company, Business & Legal Resources (BLR).
It’s a Nightmare
Want a quick overview of the FMLA? “It’s a nightmare,” says 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 even more complicated, she notes, many states have mini-FMLAs (in California, our “mini-FMLA” is the California Family Rights Act), most of which — including CFRA — give additional protections. The law more friendly to the employee always takes precedence.
Employee Not Eligible
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 actually eligible for family leave.
How to prevent family leave abuses in California — webinar next week! Learn More
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.
Reasons for Leave
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 definition for “serious health condition.” Many employers just don’t take the time to check, for example, on the period of incapacity.
Clocks and Stacking
Remember that in dealing with FMLA/CFRA, 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/CFRA clock ticking. Or, policies require using accrued time, so employers forget to get the leave clocks ticking right from the beginning.
The cure for “Monday/Friday” leave syndrome — coming Tuesday. Find out more.
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.
Bottom line, considering all these issues consistently allows employers to control a lot of the abuse, and it also sends a message to would-be abusers: You’re not likely to get away with it.
Tomorrow, an introduction to a webinar you won’t want to miss — all about preventing FMLA/CFRA leave abuses in California.
Download your free copy of Notice Requirements for CFRA and FMLA: California Labor Laws today!
CBL: California Employee Leave, California Family Leave, California Family and Medical Leave Act (FMLA), California Family Rights Act (CFRA)