Here’s a warning for employers looking for ways to cut absenteeism: Don’t do anything that makes it harder for employees to use.
“Creative” rules that end up discouraging legitimateuse or punishing those who take FMLA leave are bound to cause trouble, as one large company facing multiple lawsuits has discovered.
Recent case: Thirty-seven current and former Verizon Communications employees sued the company and its affiliates, alleging that Verizon had a set ofthat discouraged and punished taking legitimate FMLA leave.
Here’s how the process worked. When employees knew they were going to be absent, no matter the reason, they were supposed to call their supervisor or an absence administrator, who would enter the information into the company’s Absence Tracking System. That triggered a basic determination if the employee was eligible for FMLA leave, based on having worked the requisite hours and length of employment.
Eligible employees then got a letter directing them to have a medical certification form filled out, documenting the serious health condition, the date leave should start and its probable duration.
Employees had 25 days to have the form completed.
If Verizon didn’t think the employee was eligible, it notified the employee, who had 14 days to seek an administrative review.
In practice, the company denied all review requests that did not include the language, “I am requesting administrative review.” However, it never told employees they had to use the “magic phrase” or why their request was denied.
In addition, any certification about which the company had questions had to be returned with the health care provider’s initials next to each questionable section. Plus, employees weren’t allowed to request FMLA leave before actually missing work, even if their leave was clearly foreseeable. That put some employees in the position of not knowing whether their leave was FMLA-protected.
Finally, the company had a no-fault attendance policy that progressed in steps. Employees could earn a step back with six months of perfect attendance—unless they took FMLA leave during that six-month period. When that happened, they wouldn’t have a step erased until six months plus the length of their FMLA leave had passed.
That effectively benefited employees who didn’t take FMLA leave during the six months. An additional absence after six months of perfect attendance but during the additional FMLA time could be the difference between termination and keeping one’s job.
The court hearing the case was highly critical of the draconian and confusing rules. It reasoned that the company was trying to decrease legitimate FMLA use by making the process difficult. It was particularly critical of the “magic words” appeals process.
It also questioned the fact that employees who had already produced forms certifying their need for FMLA leave sometimes had to get the forms filled out again. As the court pointed out, employers already have a remedy if they don’t believe an employee’s health condition is serious; they can request a second medical opinion, and possibly even a third tiebreaker. That’s the process Congress approved.
The court said the individual claims could go to trial. (Oakley v. Verizon Communications, No. 09-CIV-9175, SD NY, 2012)
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