How Not to Handle FMLA Leave

26 Jul

The FMLA has been around for almost a quarter century now. Employers have no excuse for ignoring the law. If managers and supervisors don’t understand what the FMLA requires or if you don’t have appropriate checks in place to make sure eligible employees receive the benefits to which they are entitled, your organization is asking for trouble. Courts won’t have much patience.

In cases where an employer displays willful ignorance or downright hostility to the FMLA, courts are beginning to rule quickly on liability.

Recent case: Debra worked as the assistant director of Wyoming County’s 911 emergency phone system. She received positive performance reviews in the years she worked for the county and had never been disciplined.

She was in the middle of a 911 system upgrade project when she received word that her parents, who resided in another state, needed her assistance. Debra’s father had fallen and broken his leg. The injury required extensive surgery and then nursing home care while he recovered.

Meanwhile, Debra’s mother suffered from numerous medical conditions, including Alzheimer’s disease, heart disease, elevated cholesterol, hypertension and tremors that caused her head and hands to continually shake. In short, without Debra’s father to assist her, she could not remain at home. She was also placed in a nursing home.

Debra called her employer and explained she needed to go help care for her mother and father. When she called back a few days later, she was informed she was being terminated for poor performance. The county said she was neglecting the upgrade project.

Debra sued, alleging interference with her right to FMLA leave.

Even though managing intermittent leave can be vexing, the FMLA does give employers some tools to better track leave and combat abuse. The best approach: Use the DOL’s official certification form—WH-380E. Then review the form to make sure it’s complete before you approve leave. Discover more of the best strategies for tracking and certifying leave requests.

The county made a series of arguments, each demonstrating that it understood little about how the FMLA works. First, it insisted that since Debra had never requested either FMLA leave or FMLA leave forms, she couldn’t argue she had been denied leave.

The court quickly dispatched the argument. It noted that for more than two decades, FMLA and Department of Labor regulations have made it clear that once an employee lets her employer know she may have a need for FMLA leave by explaining her absence, it’s up to the employer to educate the employee on her FMLA rights and to provide appropriate forms.

Then the county argued that Debra wasn’t eligible for leave because her parents didn’t suffer from serious health conditions. The court said that if the employer wanted to make that argument, they should have asked for more information when Debra told them about her father’s broken leg and her mother’s inability to care for herself.

Note: FMLA regulations don’t require a daughter or son to directly assist with a parent’s care. A child can also provide transportation and psychological support.

Finally, the court considered the county’s reason for discharging Debra. It noted that Debra’s performance had never been criticized and that using the project delay as the discharge reason, when it was clear Debra was attending to her parents, sounded suspect. Plus, one decision-maker admitted that he considered her absence directly in the decision to fire Debra.

The court ruled in Debra’s favor. Now all that’s left for the court to do is calculate the damages she is owed. (Raimondi v. Wyoming County, et al., No. 3:14-CV-1918, MD PA, 2016)

The Problem with FMLA Intermittent Leave

Another big employer complaint about the FMLA has long concerned the productivity problems caused by employees’ use and abuse of intermittent leave. The problem is that employees with chronic health problems often take FMLA leave in short increments of an hour or less. That can cause a productivity, scheduling, and cost predicaments. In fact, the U.S. Department of Labor has indicated that intermittent leave is the single most serious area of friction between employers and employees seeking to use FMLA leave.

Making problems worse is the fact that many employees have also learned to game the so-called “Friday-Monday Leave Act” and employers are paying the price. While the FMLA gives workers the right to short, unscheduled leaves, it should not give them unfettered ability to take random days off or arrive late without a good excuse.

Even though managing intermittent leave can be vexing, the FMLA does give employers some tools to better track leave and combat abuse. Employers should use the DOL’s official certification form—WH-380E and review the form to make sure it’s complete before leave is approved. It is also helpful to attend courses or webinars addressing FMLA compliance. Google FMLA compliance webinars to find out the most current courses addressing information related to how FMLA can be better managed and how FMLA related legal problems can be avoided.

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