FMLA: tight rope to walk without help

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The Family and Medical Leave Act (FMLA) is a federally mandated leave program providing job-protected unpaid leave for qualified medical and family reasons.  A recent DOL survey shows that 13% of all surveyed employees took a FMLA leave in the past 12 months.  FMLA is helpful for employees seeking job-protected leave to deal with the realities of life, but it can be a difficult compliance burden for an HR department.

Keeping track of the compliance and administrative requirements of multiple and even intermittent employee leaves is a large undertaking for an employer.  It often makes sense for an employer with 150+ employees to consider outsourcing this leave administration to a third party.  They can manage the employee communication, paperwork, and time tracking.  The employer is still involved in denying or approving the claim after receiving medical certification from the employee’s physician and often has access to a software portal to monitor claim and leave status.

Smaller employer HR departments may be less successful at making a “business case” for outsourced leave administration and should be careful to avoid these common mistakes.

Not having a written FMLA policy. 

While there are many standard features within the Act, there is some room for customization.  Employers shouldn’t miss this opportunity to customize a FMLA policy in their favor.

Incorrectly counting FMLA use.

HR managers must keep accurate records reflecting an employee’s FMLA use.  This can be tricky when leave is intermittent but is essential if absences are a contributing factor to promotions or terminations.

Not adjusting performance metrics. 

An HR manager must be careful not to take FMLA absence into account when evaluating employee performance.  An employee cannot be penalized for being absent due to FMLA leave.  A penalty would include not making an adjustment to a metric taking the absence into account.

Missing employee communication requirements.

There are four main notices that are required to be given to the employee during the application process for FMLA.

  • General notice of FMLA rights
  • Eligibility notice within five days of the leave request
  • Rights and responsibility notice
  • Within 5 days of approval or denial of claim the employer must provide a designation notice

Overly generous approved leaves.

An employee typically does not request FMLA during the happy times of life.  It’s very tempting for an employer to grant a leave request for a genuine family or medical issue even if that leave is technically not FMLA qualified.  Classifying these leaves as FMLA approved could get the employer in trouble if that same employee has an actual FMLA need later in that year.

Leave administration is likely to be a large part of any HR department job duties.  It is wise for employers to encourage ongoing FMLA training and to consider outsourcing this responsibility if it is financially possible to do so.

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