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Give lots of notice before changing FMLA rules

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in FMLA Guidelines,Human Resources

Employees who need FMLA leave must notify their employers either 30 days before, if the need is foreseeable, or as soon as “practicable” if the need is unforeseeable.

Thus, elective surgery requires 30 days’ notice, while emergency surgery does not.

Lots of employers, however, have far less formal rules in place. Some allow a simple doctor’s note to stand in as a request for FMLA leave.

Advice: If you have such an informal policy, tighten up the procedures employees must use to ask for FMLA leave.

In the meantime, allow lots of time for FMLA leave requests to come in while you make the transition to a more stringent approval process. Don’t turn down requests made pursuant to the casual policy right away.

Recent case: Robert worked as an officer in a county jail that houses violent and mentally ill inmates. Officers routinely worked many overtime hours because the facility was short-staffed.

One day, Robert left work at 4 p.m., complaining of shortness of breath and chest pain. He went to the emergency room. An exam found that Robert was not in immediate danger, but he did have health problems.

Upon discharge, he got a doctor’s note excusing him from work for about a week. Afterward, he was to limit his shifts to no more than eight hours per day.

At the time, the county had a casual policy allowing employees to limit their overtime if they submitted a doctor’s note.

A few weeks later, the jail had four officers working limited hours, all based on doctor’s notes; none had made formal requests for intermittent FMLA leave. That made scheduling difficult, and employees were told that future requests had to follow standard FMLA rules, including providing medical certifications.

Robert was then disciplined for not working overtime. He sued, alleging interference with his FMLA rights.

The court sided with Robert, ruling that he should not have been disciplined for using the casual policy. (Festerman v. County of Wayne, No. 14-1950, 6th Cir., 2015)

Final note: Want to change to a more formal process? Provide plenty of notice. Process informal requests in the meantime.

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