The Family and Medical Leave Act (FMLA) can be one of the most daunting employment laws HR has to deal with. There are very specific rules and procedures that must be followed to ensure that both employee and employer are protected. Recently, employment law attorneys from Holland & Hart in Billings, Montana, presented an FMLA Master Class for Business and Legal Resources (BLR). Here are the top ten tips from that class.
Tip #1: Use the new forms
Last year, the U.S. Department of Labor (DOL) published new forms employers may use when employees request FMLA leave. Although employers aren’t required to use the new forms, those that do will seldom make mistakes. The forms, including certification of an employee’s serious health condition (Form WH-380-E) and certification of a family member’s serious health condition (Form WH-380-F), are available on the DOL’s website at www.dol.gov/whd/fmla. Form WH-381, the notice of eligibility employers must give to employees, has also been revised. If you use it, it will cover all the bases.
The new forms are very helpful in identifying exactly which kind of leave an employee needs. The forms require healthcare providers to be specific on how often, when, and why an employee needs intermittent FMLA leave.
Tip #2: Don’t accept incomplete certifications
You are not required to accept a certification that is incomplete or unclear. If you receive an incomplete or unclear certification, you may contact the healthcare provider to request additional information. In fact, it is recommended that you do so. Although the duration of some medical conditions may be “unknown,” the duration of the requested leave must be spelled out.
Tip #3: You are entitled to information
If an employee takes intermittent leave, you are entitled to sufficient information to determine whether the leave qualifies as FMLA leave. An employee cannot simply say, “I’m sick.” She must give you enough information to allow you to determine whether the FMLA applies.
Tip #4: Use recertification
If you receive information that leads you to believe that an employee is using FMLA leave contrary to the original certification, you may request recertification (except in cases involving injured servicemembers or caretaker leave).
If you request recertification, you may write a letter to the doctor who filled out the original certification and present the facts as you know them. You may ask the doctor whether the employee’s behavior is consistent with the original certification. Of course, avoid making judgmental or derogatory statements about the employee, even if you think he is malingering. You may request recertification every six months (or sooner if the original certification was for less than six months).
Tip #5: You can obtain new certifications
Recertification and a new certification are not the same. Employers may request an entirely new certification if (1) an employee’s health condition or need for leave ends and later returns or (2) a new serious health condition arises.
When obtaining a new certification, you are entitled to a second or third opinion on the employee’s serious health condition. However, second and third opinions may be used only for new certifications, not recertifications. You are entitled to a new certification every 12 months.
Tip #6: Record intermittent leave arrangements
If you and an employee have agreed that she will take intermittent FMLA leave, you should memorialize the agreement. That may include spelling out the employee’s new schedule or duties. Remember, you can temporarily transfer an employee to an alternate position to accommodate her need for planned intermittent FMLA leave.
Tip #7: Enforce your policies
The FMLA rules state, “Employees who have been approved for intermittent FMLA leave still are required to comply with the company’s regular notice policies or show why they cannot do so.” If your policy requires employees to call when they will not be at work, you may enforce that policy, even if an employee is taking intermittent FMLA leave.
Tip #8: Involve your supervisors
Once you have agreed on the parameters of an employee’s intermittent FMLA leave, provide supervisors with basic information regarding the leave. Supervisors should understand the time period of an employee’s leave, whether it will be intermittent or continuous, and whether it has been approved. Supervisors should obtain their information from you, not the employee.
Also, supervisors should be trained to avoid interrogating employees about their serious health conditions and refrain from making remarks that could be construed as interfering with employees’ leave. To illustrate this point, advise supervisors that under the FMLA, they can be held individually liable for preventing employees who are entitled to leave from obtaining it or for retaliating against employees who have taken leave.
Tip #9: You can require fitness-for-duty certification
Under the FMLA’s rules, you can require an employee to provide certification that he can perform all of his job’s essential functions before he is allowed to return to work. There is one caveat: At the beginning of the employee’s leave, you must tell him that you will require such certification. The forms on the DOL’s website provide space for you to do this.
However, remember that you also must comply with the Americans with Disabilities Act (ADA) and similar state laws. If the employee is disabled, you must engage in the interactive process and provide reasonable accommodations that allow him to perform the essential functions of his job.
Tip #10: The employer decides
The employer decides whether leave is designated as FMLA leave. Occasionally, employees will ask that leave not be counted against their FMLA entitlement. You do not have to grant such a request. Under the FMLA regulations, if you have a reason to believe that an employee’s health condition warrants it, you may designate her leave as FMLA leave regardless of whether she wants you to.
Bottom line
In summary, it is in your best interest to use the DOL’s new FMLA forms. Memorialize all agreements regarding employees’
FMLA leave, and expect and require employees to follow your policies. Most important, when an employee’s FMLA leave expires, be mindful of your obligations under the ADA and state laws. Finally, plan to attend an FMLA Master Class in 2015!
Jason Ritchie is a partner with Holland & Hart LLP and practices in the firm’s Billings, Montana, office. You may contact him at jritchie@hollandhart.com .
If an employee has a health condition which qualifies for FMLA and the employee does not want FMLA, but will be using sick or vacation time to cover the time off, can an employer still designate this time as FMLA?