Family and Medical Leave Act Mistakes

Although the law was adopted with much political posturing in August 1993, I have rarely mentioned the Family and Medical Leave Act (“FMLA”) in this column over the last ten years that I’ve been writing it for two reasons:

1.    It only affects employers who have 50 or more employees on the payroll; and

2.    It provides only unpaid leave, so very few employees can afford to take the 12 weeks off that the FMLA allows.

But I have decided it is time to readdress the FMLA if for no other reason than to combat the misinformation that seems to exist about it. If you are an employer that is affected by it, then you need a lot more knowledge than I can provide in this column, but this should act as an introduction for you.

            According to the very helpful Misty Ingle at Panhandle Worksource (an amazing resource every local employer should get to know well at www.panhandleworksource.com), more than 4000 businesses in Potter and Randall counties employ 1-49 employees. If you are one of those employers, you don’t have to worry about any federal or state regulation of your leave policies.

            For the employer with less than 50 employees, the state and federal laws do not require you to give any paid or unpaid time off for sick leave, vacation, maternity leave or medical leave.

            Employees never understand this lack of regulation and will routinely claim the employer is required to give them five paid sick leave days, two weeks paid vacation annually or six weeks paid maternity leave. These are myths of the workplace, not fact.

            But once your business reaches the magical number of 50 names on your payroll (including part-timers) for at least 20 weeks in a year, you join the 458 employers in Potter and Randall counties that are required to offer Family and Medical Leave. The FMLA provides employees at those larger companies unpaid time away from their jobs for serious medical and family situations.

            If your business employs or is getting close to 50 employees, then you need to start planning now for implementing the FMLA.

            You need an extensive written policy for your personnel manual that explains the FMLA to your employees and informs them about their rights to this leave, which allows them unpaid time off for the birth or adoption of a child or for the serious health condition of the employee or the employee’s immediate family members.

            As the employer, you have to post a notice about the FMLA wherever you normally post required legal notices. On the other hand, if you aren’t yet subject to FMLA, make sure you don’t post one of those consolidated posters that includes FMLA rights because your employees are not entitled to federally-mandated family and medical leave and you don’t want to mislead them.

            Probably the most important factor in implementing the FMLA correctly is thoroughly training of at least one human resources employee in how to correctly administer the FMLA.

            That designated FMLA administrator should be able to recognize when an employee with a simple sick leave request becomes eligible for FMLA leave because the condition has become a “serious health condition”, requiring either hospitalization or continuing treatment by a health care provider.

            That trained person will also recognize that both men and women are eligible for FMLA leave when there is the birth or adoption of a new baby into the employee’s family.

            Finally, this administrator needs to be trained on handling the FMLA’s troubling intermittent leave regulations, including the fact that your ill employee could skip work every Friday for the whole year if a doctor declares that day necessary for weekly treatment.

            The FMLA expert in your employ will also need to understand how your sick leave policy, worker’s compensation coverage, short-term disability insurance, and the Americans with Disabilities Act interact with the FMLA.

            It is worth spending some money to get your HR person well-trained in FMLA administration. While you are at it, as the business owner, you should go with your HR person to the training so that you will appreciate the complexities of the law.

            For instance, if you are just writing your FMLA policy, you’ll have to decide whether you want your employees to use up their accrued paid time off (vacation, sick leave, etc.) while they are out on family or medical leave so that 12 weeks becomes the maximum time they can take off, not the minimum in addition to vacation and accrued sick leave.

            When twelve weeks of leave have been used up, you can carefully explore your options as an employer: put the employee back to work in the same or an equivalent job if the employee is ready to return to work, or terminate the employee’s job if he is not ready to return.

            Knowing you can fire someone for using more than his twelve weeks prevents you from retaining a lot of people on your payroll (and probably paying for expensive fringe benefits like health insurance) who aren’t actually producing any work for your company.

            Just make sure you don’t fire the employee before his twelve weeks has expired. This is a serious violation of the FMLA and can lead to a lawsuit by the employee.

            And as always, don’t discriminate when you fire. If you want to fire the slacker who has been gone for thirteen weeks with his third questionable worker’s compensation claim against you, you also have to be consistent and fire your beloved executive assistant who has been undergoing debilitating cancer treatment for thirteen weeks. You cannot show favoritism when administering federal laws like the FMLA.

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