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Basics of the FMLA: 7 steps to total compliance

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in Employment Law,FMLA Guidelines,Hiring,Human Resources,Leaders & Managers,Performance Reviews

The Family and Medical Leave Act of 1993 (FMLA) entitles eligible employees to take up to 12 weeks per year of unpaid leave for their own “serious health condition” or to care for a spouse, child or parent with a serious health condition. Leave is available for childbirth or adoption.

The law covers employers that have 50 or more employees working within a 75-mile radius of the “worksite.” To be eligible for FMLA leave, employees must have:

  • Worked for the covered employer for at least 12 months (but not necessarily 12 continuous months).
  • Worked at least 1,250 hours during the 12 months leading up to the start of the FMLA leave.

Employees may take leave in one of two ways: a 12-week block of time or intermittent leave while recuperating or suffering from chronic conditions.

Employers can request medical certification of the need for leave before approving it.

What's new

The U.S. Labor Department, which administers the FMLA, recently collected 15,000 public comments about the pros and cons of the law. The department may use those comments to help develop regulations that clarify the confusing parts of the law, but no regulations are imminent. (Read more about the report at www.dol.gov/esa/whd/Fmla2007Report.htm.)

In particular, employers cite the difficulty in administering intermittent FMLA leave. Employees who suffer chronic ailments often can take leave with little or no notice when their conditions worsen. But employers say many employees abuse leave by simply claiming their chronic condition flared up when they just want to take a day off.

How to comply

Here are four “musts” for complying with the FMLA:

1. Display an FMLA poster prominently in your workplace telling employees of their rights under the act. Posters are available free to download at www.dol.gov/esa/regs/compliance/posters/fmla.htm.

2. Develop an FMLA policy and incorporate it into your employee manual. The policy should include procedures for requesting leave (including points of contact), substituting paid leave for unpaid leave, coordinating FMLA leave with other leave programs and handling benefits while on leave. Always have an attorney familiar with the FMLA review the policy.

3. Train supervisors to listen for “hints” of FMLA-qualifying leave. Employees don’t need to say, “I need FMLA leave.” In fact, they don’t need to mention the FMLA. It’s the employer’s duty to identify leave requests (medical or care for family) that qualify as job-protected FMLA leave. Teach supervisors how to handle such information (e.g., notify HR).

4. Train supervisors about the anti-retaliation rules. It’s illegal for employers to retaliate against employees or applicants because of their current or potential use of FMLA leave. This means that hiring procedures, employee evaluations, bonus plans and promotion procedures must be designed so they won’t penalize workers who use FMLA leave.

Additionally, be aware that some other practices, by themselves, don’t violate the FMLA but often lead employers into FMLA trouble. Here are three tips for avoiding these pitfalls:

1. Avoid no-fault attendance policies. Employers that don’t know why employees are off work can’t know whether their absences are FMLA-related. Because employers violate the FMLA by charging employees with unexcused absences for legitimate FMLA leave, employees can challenge employers’ designations of absences as unexcused if the employers lack the facts. At the very least, all attendance policies should allow employers to categorize each absence as FMLA leave or not.

2. Set a formal FMLA process in place. Otherwise, FMLA-qualifying requests can slip through the cracks. Have FMLA request forms available to anyone who requests time off for any reason. FMLA regulations require employers to respond to requests within two business days. A formal process allows employers to track requested dates and responses. This documentation will be vital if the employee sues.

3. Establish an FMLA-eligibility tracking system. Various software packages allow employers to track which employees are FMLA-eligible. When employees request FMLA leave, employers are supposed to provide eligibility details in the response, including how much FMLA leave time is still available.

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