8 Practical Suggestions for Managing FMLA Leave

8 Practical Suggestions for Managing FMLA Leave

What can an employer do to manage FMLA leave? Fabbo explained that "you can’t just let leave happen . . . managing the leave will give you more options." Here are 8 practical tips:

1. "Supervisors must know enough to notify human resources (or whatever area is responsible for administering leave) when an employee is absent for 3 consecutive days." They should also notify HR when an employee is injured at work, and any time the supervisor receives notice that an employee might be out for an FMLA-qualifying reason or for a reason that could be related to a known disability.
2. "Typically it’s human resources that will make the determinations whether the employee is covered" under FMLA Fabbo advised. If so, the Notice of Eligibility/Rights and Responsibilities should be sent out with the appropriate medical certification. If it’s not FMLA, HR determines whether the employee might be eligible for a medical leave of absence as disabled.
3. "Make sure that you’re getting your medical certifications back within the timeline." If it’s not received, you’re not required to consider leave as protected and you may apply discipline in accordance with your plan policy. (Consider rescinding discipline if there was a good cause for any delay.)
4. When you receive the documentation, if it is satisfactory then send the Designation Notice and job description for the return-to-work note. However, Fabbo noted during the webinar: "If the documentation you get back is not clear, unreadable, [or] incomplete – you can contact the physician for clarification or to authenticate the document." (Naturally HIPAA comes into play; sometimes it’s easier to ask the employee to clear up the questions.) When you ask the employee to cure any deficiency in the documentation, give them instructions about what needs to be added and advise that they have 7 calendar days to cure the deficiency.
5. Be sure to track the leave, especially intermittent leave. You may require the employee to take leave in increments of one hour if similar tracking is used for other leaves; just ensure consistency in the time increments allowed.
6. Remember that you can require employees to abide by your call in procedures and give notice if their leave is foreseeable. (The requirements must be reasonable of course).
7. Recertification is another way to manage leave. You can ask for it every 30 days unless the minimum duration of the condition is more than 30 days. Fabbo continued, "in some circumstances you can get recertification if the employee’s use of the leave changes if they were using it once a month and then they’re starting to use it once a week [for example] . . . if the employee wants an extension . . . [or] if you have a reason to doubt the validity of the certification." You can also get new medical certification at the start of a new leave year. This is an opportunity to challenge the leave if you suspect the employee has been abusing FMLA leave and you did not challenge the condition at the initial application.
8. Two weeks before end of block leave, notify the employee of the expected return-to-work date, the required clearance to return to work (if applicable), and the consequences of a failure to return to work without contact.

For more information on managing FMLA leave, order the webinar recording. To register for a future webinar, visit http://catalog.blr.com/audio.

Attorney Marylou V. Fabbo is a partner with Skoler, Abbot & Presser, P.C. and heads its litigation department. She has successfully defended employers in civil actions involving many areas of employment law, including sexual harassment, discrimination, wage and hour, FMLA, breach of contract, and wrongful discharge.