20 Feb FMLA: Compliance Assistance
The steps on this page steps will help employers comply with the FMLA and disability leave laws and requirements.
The following steps will assist employers in ongoing efforts to comply with the changing complexities of the various disability leave management laws and requirements:
1. Review existing FMLA practices to ensure compliance with basic FMLA requirements.
For example, it is the employer’s obligation to designate leave as FMLA qualifying to trigger the 12-week period. Managers should be reminded that employees are not required to specifically mention the FMLA at the time leave is requested. In some circumstances, when an employee requests leave, a manager still may need to make inquiries to determine whether the leave is FMLA qualifying, how much leave time is needed, and whether the leave may be needed on an intermittent or reduced schedule. Employers should also be utilizing the forms provided by the Department of Labor to obtain and document such information.
2. Ensure employee handbooks contain FMLA policies. Consider obtaining signed receipts confirming employees have read and understand FMLA policies.
If a company has an employee handbook, the FMLA requires it to contain an FMLA policy. If a company does not have an employee handbook, it must provide written guidance to employees concerning their rights and obligations under the FMLA. Whether a policy is in a handbook or distributed through some other means, employers should maintain evidence that employees have received written notice of their rights and obligations under the FMLA. This could be particularly important in cases where the individualized notice requirement is not met. Employers should consider having employees sign receipts acknowledging they have received, read, and understand the written policy on FMLA rights and are aware of the process to follow if they have questions about their rights in the future.
3. Develop additional procedures to facilitate better communication between supervisors and human resources regarding employee absences and leaves.
Many companies do not have formal procedures instructing managers and supervisors on the process to follow in administering employee leave periods. Companies should consider putting written procedures in place that allow for easy communication between supervisors and human resources about employee absences. This is more likely to ensure that the appropriate FMLA notices are issued in a timely manner.
4. Train supervisors in the triggering mechanisms for the FMLA.
It may be difficult to identify what absences are covered by the FMLA. The definition of serious health condition can be confusing. Managers and supervisors must understand what factors might cause an illness to be covered under the FMLA and ADA, what they may ask employees about their illness or injury, and how to gain assistance in making such determinations.
5. Review documentation for all employees currently on medical leaves.
Employers should inspect open FMLA files to determine whether the appropriate notices have been issued. In most cases, if the notices have not been issued, much is gained by issuing the notice. Issuing the notice not only activates the FMLA 12-week clock, as of that date, but also reduces the chances that an employee or court might find that the leave did not qualify as FMLA leave. In some situations where an employee remains on leave for an additional 12 weeks after the late notice is issued, it will eliminate the potential for a dispute entirely. In cases where the notice is not given or an employee is terminated less than 12 weeks after receiving the notice, employers should gather the documentation and evidence that the employee’s receipt of timely notice would not have changed the employee’s leave decisions.
6. Integrate workers’ compensation programs with the FMLA.
Often, companies delegate the management of workers’ compensation leaves to safety, risk management, or other disciplines that are not traditionally responsible for FMLA administration. This raises the risk that FMLA notices will be overlooked and makes employers more vulnerable to FMLA violations. Coordinating these programs with human resources is a cornerstone of an effective disability management program.
7. Integrate workers’ compensation programs with the ADA and FMLA.
Reasonable accommodation under the ADA might avoid the need for additional leave entirely or mandate that additional leave be provided with a right to job restoration. Light duty, for example, is commonly used in workers’ compensation loss control programs, but depending on how it is structured, may or may not be required as an ADA reasonable accommodation. However, according to the Department of Labor regulations, an employee on FMLA leave may refuse light duty even if it is within the employee’s medical restrictions.
8. Establish disability management committees to manage employee leaves.
All FMLA leaves are not identical. Two employees with the same condition might make different decisions on how to use their 12-week FMLA leave allotment. A specific strategy must be established to manage each, individual use of FMLA leave. To implement a strategy, employers should acquire input from a variety of sources including front-line supervisors, human resources, safety, medical personnel, insurance representatives, and legal counsel. In forming a committee that meets periodically to review the status of leaves, employers put themselves in the position to return employees to work more quickly, limit the duration of leaves, and reduce their exposure to employment-related litigation. Although the effort and cost of creating a committee might be significant, returning workers to work more rapidly may drastically reduce workers’ compensation costs and avoid prolonged staff disruptions. The expense of such a program will be heavily outweighed by the value of avoiding an ADA- or FMLA-based lawsuit.
9. Review state laws to determine if the laws provide greater employee protections than federal laws.
The ADA Amendments Act of 2008 broadened the scope of the ADA’s definition of disability and states are expanding the scope and reach of laws protecting injured and ill workers. Several states have enacted their own family and medical leave laws and some have greater leave amounts and benefits than those provided by the FMLA, and/or provide benefits to employees who are not eligible for FMLA. When employees are covered by both federal and state family and medical leave laws, they are entitled to the greater benefit or more generous rights provided under the different parts of each law. Employers must reviewing their policies and procedures to ensure compliance with state law obligations.
10. Train managers to recognize situations where the FMLA, ADA, and workers’ compensation intersect.
Managers must have the ability to visualize different laws in everyday personnel situations. There are few shortcuts for developing this skill. We recommend a comprehensive training program designed to educate managers on the requirements of these laws and their application to common situations arising in the workplace.
11. Review benefit plans to ensure definitions of disability are consistent.
Many employees who do not return to work after extended medical leaves apply for and receive long-term disability benefits. The duration of benefits under such programs might differ depending on whether the condition is a mental or physical disability and benefit plans should be reviewed to ensure that the definition of disability is consistent with the coverage levels intended.
Original content by the Mineral Platform. This information is provided with the understanding that Payroll Partners is not rendering legal, human resources, or other professional advice or service. Professional advice on specific issues should be sought from a lawyer, HR consultant or other professional.