Published April 2010
The Family Medical Leave Act (FMLA) can be, at best, a time consuming process to administer. Most of the time, it is confusing to the point of frustration. Employers often contact BASIC seeking ways to reduce their growing frustration with the FMLA. The following are a couple examples of concerns presented by employers and recommendations for action to resolve the problems presented.
- We recently received a grievance from our employee’s union representation arguing that the employee who requested FMLA was not properly informed of his rights and responsibilities under the FMLA prior to his taking leave and therefore should not be required to reimburse the employer for unpaid health premiums. We have a copy of our FMLA policy in the employee handbook. Is this adequate?
The DOL continues to stress that the intent of the FMLA and the responsibilities of the employer include the confirmation that employees “understand” their rights and responsibilities prior to taking FMLA leave. The simple provision of a policy statement in the employer’s handbook may not be sufficient. Under the question posed, the policy may not state the exact payment terms for the employee to continue his/her medical premiums during leave (example must be paid by the first day of the month). One step to add is to create a simple 1-2 page bullet point summary of the employee’s and employer’s rights and responsibilities under the FMLA. When a request for leave is made by an employee, hand the employee the summary as a way to assure they have the information needed to “understand” all of their rights and responsibilities. This handout should include, but not be limited to, the 15 day cert rule, 7 day cure rule, payment of health premiums, reporting intent to return to work, reporting date of return to work, employer’s policies and procedures for reporting absences, employer’s right to contact the HCP for clarification and authentication, and all other responsibilities. By providing this summary in a consistent manner you will produce a practice of informing your employees of their rights and responsibilities.
- We have an employee that is constantly calling absent for his intermittent FMLA leave just prior to his shift or after the shift has begun. This is causing issues with staffing and production. Our absence policies require employees to call their supervisor no less than four hours prior to shift.
An employer is allowed to enforce its consistent and written attendance and absence policies even for an employee who is absent for approved FMLA. If the employer’s policies state that employees are to call in four hours prior to shift start for any and all absences then the employer can require an employee on FMLA leave to adhere to the same requirement. Failure to adhere to the employer’s policy may result in disciplinary action. The only exception to this is where there is sufficient evidence that the employee was unable to adhere to this policy because of the medical condition. If the employee presents that the reason for absence was “out of the employee’s control” and the employee did not have prior knowledge of the need for the absence, the employer can “clarify” the acute nature of the reason for absence with the employee’s HCP.
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