Ask most HR managers what their biggest headache is, and about 90 percent say “FMLA.” From eligibility to notifications to managing intermittent leave, it’s an ever-present problem.
And FMLA is also widely abused. However, the good news is that abuse can be tamed to some extent, say attorneys Jeffrey A. Wortman and Nancy M. Cooper.
Wortman, who is a partner in the Los Angeles office of Seyfarth Shaw LLP, and Cooper, who is a partner in the Portland, Oregon, office of Garvey Schubert Barer, shared their FMLA expertise in a recent audio conference sponsored by 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 a little more complicated, she notes, many states have mini-FMLAs, most of which give additional protections. The law more friendly to the employee 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 eligible (has worked for 12 months and 1,250 hours during the 12 months immediately preceding the leave and works at a site with 50 employees or more or where there are 50 employees or more within a 75-mile radius of the worksite).
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 FMLA definition for “serious health condition.” Many employers just don’t take the time to check, for example, on the period of incapacity.
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Who’s a Spouse?
Another trap awaits with the definition of who qualifies as a “spouse.” There is an increasingly complex body of law around domestic partnerships, and there is a growing trend to claim discrimination over them.
In many situations, unfortunately, there is no clear guidance, Cooper says, so do your best to apply federal and state law in an even-handed and consistent manner.
Clocks and Stacking
Remember that in dealing with the FMLA, 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 clock ticking. Or, policies require using accrued time, so employers forget to get the leave clocks ticking right from the beginning.
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.
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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.
In the next issue of the Advisor, we’ll explore abuse of intermittent leave, and get an introduction to a unique tool for short-handed HR departments.
In my many years in HR (while working in companies with as many as 800 employees, or in much larger companies working with many colleagues who also handle FMLA), I’ve witnessed very few actual cases of FMLA abuse. What I have seen are many cases of management abusing employees that attempt to use or actually do excercise their rights under FMLA.
There’s no doubt that FMLA is an inconvenience. But, in my experience, managers who don’t know how to deal w/ that inconvenience have by far been the most egregious violators of FMLA standards. Attempts at retaliation for legitimate leave appears to be rampant. I’ve seen it and prevented or stopped it many times.
Yes, FMLA can be difficult to manage, but not for the reasons you’ve given here. I disagree that FMLA is widely abused. Probably less than 5% of our FMLA requests are even what I would call “questionable” much less abuse – and we manage over 4000 FMLA requests each calendar year. In your examples above, the employee is not abusing FMLA if the Employer fails to determine eligibility. The employee is not abusing FMLA if the Employer fails to determine if the employee meets the definition of a Serious Health Condition. And the employee is not abusing FMLA if the Employer fails to notify the employee that FMLA is running concurrently with other leaves of absence, as the law very clearly allows. The employee applies for FMLA and provides the medical certification. It is up to the Employer to determine eligibility, evaluate the information provided, and approve or decline the request. Don’t label employees as “abusing” FMLA because some Employers are too lazy, or too unknowledgeable, to do the work to manage FMLA correctly. It is the Employer’s responsibility to comply with the law, inform employee’s about their rights under the FMLA, and to manage it correctly.
Another area to look for abuse is when the employee uses it to protect againt discplinary action. It is difficult to manage intermittent leave when the is not enough advance notice especially in the transportation industry. Kristin you are absolutely right about employer responsibility to determine eligiblity, and thier practices are acceptable, but how do you obtain the right knowledge when there are so many gray areas? I believe some employers are walking on eggs shells because they are afraid of the liability.