When there’s no one left to work, can you say no to FMLA?

05/07/09

Across the country, in companies large and small, staff levels have been cut to the bone. Everyone is doing (or trying to do) what used to be the job of two or three employees. Even having someone out sick for a day or two can throw your entire schedule into chaos. So what happens when one of your employees requests weeks of FMLA leave? Can you refuse to grant it?

The answer is…

If your company meets the FMLA size requirements and the employee has met the length of employment test and has a qualifying illness, disability, pregnancy or adoption claim, the answer is no. According to the U.S. Department of Labor, you must grant the employee his or her protected leave even if their absence will potentially damage your business. And upon return, employees must be restored to their original job, or a given a substantially equivalent job, with no penalties for their use of FMLA time.

The “key employee” exception

There is only one exception in the requirement for job reinstatement. You may, upon written notice, refuse to restore certain highly paid “key” salaried employees to their previous job, after FMLA leave. You may not, however, deny the leave and you must give them written notice of your intent to replace them. If they return to work, you are not permitted to penalize them for the leave they’ve taken to date.

Preparing for the possibility

In deciding upon staffing levels and business plans, the possibility of one or more employees using FMLA leave must be taken into account. Regular FMLA leave of up to 12 weeks per 12 months period, or military family FMLA leave of up to 26 weeks per 12 months could have a major impact on a company, if there is no one to take up the slack or if the absent employee has specialized skills or knowledge. But there are ways to prepare.

• Cross-train employees on all major tasks, so if one person is out for an extended period of time, others have the knowledge to step in
• Work with a qualified temp agency to rotate people in on a regular basis, so someone would be ready to jump in if FMLA or any other extended absence came into play
• Keep staffing levels high enough to handle one or two missing roles for a few months Plan work flow and projects around the possibility of losing one or more employees. Build in contingency plans for lower staff levels or longer lead times should the situation arise.
• Prioritize projects, so if one or more had to be put on hold you are ready to make that decision

Not following FMLA rules is not an option. But with good planning and cooperation, your business can survive and thrive, even when the unexpected happens.