FMLA Housekeeping

By Craig M. Brooks

The start of the 2008 is a good time to clean up lax practices and plan for likely changes under the Family & Medical Leave Act (FMLA). The likely changes to the FMLA are the addition of military leave. Congress passed military leave amendments to the FMLA in December, as part of a larger military bill vetoed by the President because it also expanded the ability of Americans to seek compensation from countries supporting or sponsoring terrorist acts (which President Bush stated could damage our relationship with Iraq by exposing it to significant financial burdens). The FMLA provisions will likely be separately enacted in the upcoming months as the President expressed support for them.

Assuming the new FMLA military leave provisions mirror those of the recent bill, they will likely entitle covered employees* to take unpaid leave for an immediate family member’s call to active duty or to care for an immediate family member who incurred an injury or illness in the line of duty in the Armed Forces (including the National Guard or Reserves). The FMLA currently allows for up to twelve weeks leave (combining paid and unpaid time off) within a twelve month period. The recent bill would expand this to up to 26 weeks leave (within a 12 month period) to care for a service member injured or rendered ill in the line of duty. When the FMLA is amended, employers will have to revise and reissue their policies and employee notices to include the military leave entitlements.

In the meantime, there are common mistakes and lax practices amongst some employers in administering the existing FMLA requirements. A big problem is employers remembering during an employee’s leave to send written notification to the employee that his/her current time off work will be credited as FMLA leave. FMLA regulations call for such notice to be sent within three days of the start of an employee’s leave. This notice can be sent later than this, but failure to send this written notice can result in an employer not being able to count the employee’s pre-notice time off against his/her 12 week leave entitlement time. It is helpful for employers to review their practices (not just their policies) on whether and when they send these notices as well as what they include.

Even employers not covered by the FMLA should monitor the number of employees they have in order to see if their coverage under the FMLA changes. If you grow to have fifty or more employees within a seventy-five mile radius of one another, then those employees become covered by the FMLA. This requires issuance of policies explaining the FMLA rights to employees, as well as electing employer options on how to apply the FMLA.

Finally, many managers remain unclear on various other aspects of FMLA that might benefit from a review. Areas of confusion include:

  • how to coordinate FMLA leave time with other time off such as vacation time, paid sickness or disability time, workers’ compensation absences, etc.;
  • what illnesses qualify an employee for FMLA leave time (for the employee’s own medical condition or to care for an ill family member);
  • whether employees off on FMLA leave can be discharged (which they can in some cases) when it is discovered during their absence that they were not performing their job well or as a result of other workplace changes;
  • what type of notice from an employee is sufficient to invoke FMLA protection (verbal notice may be sufficient); and
  • when an additional medical certification or a second medical opinion can be required.

If you have any questions regarding this or any other area of employment law, please contact Craig M. Brooks.

*A covered employee is one who works for an employer that has at least 50 employees within a 75 mile radius of that employee seeking leave, and the employee seeking leave must have at least one year of service and 1,250 hours of work for that employer during the past 12 months.