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Encouraging FMLA leave

By John Wilcox, Moderator
8/14/2007 - 4:30am
Employment Law

John Wilcox, Moderator

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John Wilcox is senior editor of 15 HR Specialist newsletters covering employment law, compensation and benefits, as well as theHRSpecialist.com. A journalist who has covered HR, training, organization development and business management for more than 15 years, John keeps his finger on the pulse of what’s working in HR through daily contact with some of the nation’s top HR pros, business people and employment law attorneys.

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Question: "How can I persuade our employees to take the leave FMLA was designed to provide? Short surgeries, family situations, and even new fathers—these are all situations in which employees have chosen to use vacation time instead of FMLA entitlements. The most common reasoning is 'I want to save it in case of a real emergency.' Any advice for making the case for FMLA?" — Elaine A., Florida

Comments

Your employees should not be electing whether or not their leave is FMLA qualifying. For instance, if you know an employee is out for a qualifying event, say the birth of a child, you should send a letter designating the leave as FMLA leave. Your FMLA leave should run concurrent with vacation/sick time. I strongly recommend adding this to your company handbook to prevent abuse of leave.

Posted by: K.M. | August 14, 2007 at 02:12 PM

Why would someone choose un-paid leave over paid vacation? Seems like a no-brainer to me.

Posted by: P.D. | August 14, 2007 at 02:21 PM

Good News, Bad News. It's not always up to the employee. Start counting leave as it should be and inform the employees that you are doing it, even if it's retroactive. Use vacation and sick time concurrently. I will only use a backward looking 12 month rolling calander for all family leave laws; state and federal.

Posted by: William Dalton | August 14, 2007 at 02:25 PM

When we are notified of a possible "qualifying event" we send a letter and the necessary paperwork to the employee. We have PTO time and there are rules for use of that time, so if they want to be guaranteed time off they have to jump through the qualification hoops. We also notify employees that FMLA runs concurrent with workers comp or short term disability leaves. Our policy states that FMLA leave is paid if an employee has PTO time on the books, if they don't then it's unpaid. Also, we recently changed our policy so that after a 40-hour waiting period, during which employees use their own time, the City will kick in a 50% benefit during the remaining time for continuous qualifying leaves. This has led to almost an overuse of FMLA. The policy now states that for a known event we require a 30-day notice (as does the law).

Posted by: T Tate | August 14, 2007 at 02:45 PM

Any time an employee is out for surgery or an extended illness, their leave must be reported to Human Resources who provides them with their FMLA rights. It is up to the employee's doctor to determine when they can return to work. If the employee and doctor agree on an earlier return date, than the standard FMLA 12 weeks, then it is up to the employee whether they wish to take advantage of the FMLA leave. Many times they do not have enough sick and vacation time to carry them through the 12 week period and prefer to return to work. It is really a personal choice.

Posted by: A.T. | August 15, 2007 at 05:46 AM

Good Morning,

If an employee has worked for the company for 12 months and a total of 1250 hours or more in those 12 months, then they are covered by federal FMLA (State laws may vary) – also keep in mind that it does not always have to be 12 consecutive months.

If you deem the leave as a qualifying reason for FMLA then you can track the employees days or hours (intermittent leave) as FMLA leave whether they elect it or not. It should not be left up to the employee and is not in the companies best interest to do so as you could end up with an employee who is potentially out for most of the year between the 12 weeks leave and then vacation/sick time etc.

In response to KM and as a way to cut down on a covered employees time away from the office - Most companies will have their employees use their vacation and sick time concurrently with FMLA time before not paying their employees. This way the employee benefits from having a paid leave and the company benefits from cutting down on the amount of missed time and lost productivity from an employee on leave.

Posted by: Katharine | August 15, 2007 at 05:53 AM

It should be up to the employee on how to take leave- either use their vacation/sick time or as time off without pay. that is how our university does it. If the employee wants to take unpaid leave then it is up to the employee-not the company. You can't force a employee to take a leave option that they do not want. That is the law.

Posted by: nancy | August 21, 2007 at 01:18 PM

Thank you all for your comments about FMLA leave its enforcement with employees. Great feed back.

Posted by: Elaine A | August 22, 2007 at 06:58 AM

There is no need to debate this subject, the answer is on page 5, on the bottom in the Q & A section.

The latest monthly HR SPECIALIST Newsletter covers this topic.
Stated from the HR SPECIALIST:

Titled: "YOU determine FMLA leave-not the employee"

"...the regulations say that an employee may elect, or an employer may require, that accrued paid leave be submitted for FMLA leave. In other words, employers are permitted to require employees to exhaust paid leave....You should include this requirement in your FMLA policy.

Ladies/Gentlemen, if you are not subscribed to the monthly newsletter, you are missing a great deal of information.

Posted by: Cece King | August 23, 2007 at 02:39 PM

One thing that I did not see mentionned in any of the posts was to make sure the employees are given information up front either in the employee handbook or as a separte document if you do not provide a handbook. DOL provides Fact Sheet #28 as an acceptable document to give employees.

Posted by: Kim | September 17, 2007 at 08:52 AM

When calculating the 1250 hrs requirement for FMLA, if I have only been employed for a period of 19 months, can the 1250 preceeding hours required, be in the 1st 12 month period of employment with my company if the first year is included in calculating the 1250 hrs preceeding my FMLA paperwork submission? Or do those hours have to be determined after my 1 yr anniversary with my company?
Adelle Wright

Posted by: A WRIGHT | October 18, 2007 at 09:40 AM

Posted by: A WRIGHT | October 18, 2007 at 09:59 AM