Family and Medical Leave Act (FMLA) compliance is difficult and annoying, said Mark Oberti, an attorney with Oberti Sullivan LLP in Houston, at the National Employment Law Institute’s Annual Employment Law Conference in Arlington, Va., Nov. 16, 2012.
The U.S. Department of Labor’s FMLA regulations often aren’t much help, as they rarely make it clear when an employer may fire someone, he added.
Oberti outlined 12 compliance strategies for employers:
• When in doubt, send the employee the notice of eligibility and rights.
• Provide written notice of approval or disapproval of FMLA leave to the employee.
• Have a specific, formal policy to request leave, and adopt and enforce a call-in policy. Be reasonable about enforcing the policy, he cautioned. For example, cut employees some slack if they call in to their supervisors, instead of HR, even if the policy provides that they call HR.
• Be extremely cautious about terminating employees on FMLA leave.
• Train managers on FMLA basics. Uninformed managers may complain that they don’t want to return a difficult employee to his or her job or an equivalent position.
• Don’t even bother with the option to reinstate a returning employee to an “equivalent position.” Return an employee to the same job if it still exists, Oberti suggested.
• Invoke the employer’s rights in intermittent leave situations with caution. An employer can’t ask for certification of fitness to return to duty for each absence on an intermittent schedule. It can request fitness-for-duty certifications up to once every 30 days if reasonable safety concerns exist about the worker’s ability to perform duties, based on the serious health condition for which leave was taken. Be careful, as the job safety provision is very narrow, Oberti emphasized.
• Select your 12-month FMLA period in writing. If an employer doesn’t designate in written materials available to employees which leave-year option it has selected, the employer can’t later pick the method most advantageous to it. Instead, courts will apply the most advantageous method for the plaintiff, as required by FMLA regulations (see 29 CFR § 825.200(e) and Thom v. American Standard Inc., 666 F.3d 968 (6th Cir. 2012)).
• Do not fire workers employed just shy of a year to try to avoid giving them FMLA leave. Oberti cited an 11th Circuit decision that a pre-eligible FMLA request for post-eligible maternity leave is protected activity (Pereda v. Brookdale Senior Living Communities Inc., 666 F.3d 1269 (11th Cir. 2012)).
• Do a thorough “FMLA scrub” before each termination. Check attendance records and confirm with the manager whether the person up for termination is on FMLA leave currently or has been on it recently. Review recent performance evaluations or warnings to see if any absence that might be FMLA leave is mentioned as a reason for termination or discipline. Ensure the termination is not in retaliation for the employee’s exercise of FMLA rights.
• Don’t forget about the FMLA’s prohibition on retaliating against those exercising their rights under the law.
• Finally, appoint an FMLA leave “czar” -- someone tasked with doing an FMLA scrub for every termination to make sure the employer is compliant. Because the FMLA has individual liability -- where supervisors can be held personally liable for violations -- “Pick someone you don’t like” to be the “czar,” Oberti joked.
Allen Smith, J.D., is manager, workplace law content, for SHRM.
©2012 SHRM. All rights reserved.
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