Family and Medical Leave Act (FMLA) issues combine three of HR professionals’ most detested things: paperwork, interpreting laws, and making tough calls that affect employees. The reason these issues are so tricky is that FMLA law doesn’t provide clear answers to every possible situation. This means that HR professionals have to rely on what the FMLA does say, previous rulings and opinions, and our own experience.
It can get a bit dicey when you are determining if employees are eligible, how much time they’re eligible for, and, most commonly, which type of leave they should receive. And these decisions have a significant impact on employees far beyond pay or sick leave hours—a Society for Human Resource Management (SHRM) survey reported that unfavorable FMLA decisions have a significant impact on employee morale and productivity as well.
The same survey also revealed that 51 percent of HR professionals have experienced significant challenges in implementing FMLA provisions. This is probably no surprise if you’ve spent any amount of time working with the FMLA at your organization.
Many HR professionals would agree that intermittent leave is one of the most difficult aspects of FMLA to manage because many of the conditions that qualify for intermittent leave are hard to prove and extremely unpredictable. For instance, chronic back pain can legitimately flare up at any time, but it is also one of the easiest medical conditions to falsify. Certification and recertification can certainly help with legitimizing intermittent-leave-qualifying medical conditions, but this is one of the biggest areas of concern for employers. While there are always ways for employees to work around the regulations, holding them accountable is often enough to curb excessive use.
The fact that employees may abuse FMLA is a completely separate problem from how employers should handle that abuse. This is because employers are often not sure what the legal parameters are for questioning medical issues and the legitimacy of specific instances.
As an employer, you do have the right to question the legitimacy. It can be a sensitive topic but asking specific questions about what the medical issue is that is keeping employees home, probing for whether or not they can perform modified duties, whether it’s a recurring issue, or when they last saw a doctor, can also lead to questions about certification or recertification. You also have the right to terminate employees if you honestly believe they have abused FMLA, for instance, to take a vacation. Two notable court cases had the courts siding with the employer when employees took sick leave in conjunction with vacation time.
One important thing to remember as you handle suspected abuse is to be consistent across the company in your certification requirements, in order to avoid being accused of discrimination. For example, if you request recertification from one employee, you must request it from all employees utilizing intermittent leave for a similar time period, and document each instance. Although these situations can be tough, if you can treat the employees respectfully and sensitively, you can hold them accountable without causing bigger problems.
What other FMLA issues do you deal with? Let us know in the comments section below.
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