First in a Three-Part “HR Awareness” Series: Test Your FMLA Knowledge

12/07/11

No, we’re not asking you to step back into the classroom – you can put down your pens, textbooks and notepads! Instead, take a few moments to test your knowledge of the Family and Medical Leave Act (FMLA) and how it affects your business. Your awareness of the following FMLA issues can keep you in compliance and protect you from time-consuming and costly HR mistakes. 

Q - How can you manage intermittent leave and prevent employees from abusing it?

A) The FMLA allows employees to take leave on an intermittent or reduced schedule basis, which may include sporadic blocks of time for doctors’ appointments for a chronic condition; to undergo treatment, such as physical therapy, counseling or chemotherapy; or due to temporary periods of incapacity, such as morning sickness or an asthma attack.

Even with intermittent leave, employees should be expected to follow your company’s FMLA approval process. When the need for leave is foreseeable, they should provide notice as soon as possible -- ideally the same day or the next business day after becoming aware of it.  In addition, you’re entitled to enforce reasonable call-in and attendance policies for absences, because the FMLA specifies that employees on leave follow the employer’s customary procedures.

Getting medical certification, which is proof by a physician that leave is “medically necessary,” is another vital step in preventing abuse. For a thorough evaluation of the situation, you can require that the medical certification outline the reasons for work restrictions, why the employee can only do his or her job intermittently and the likely duration of the leave.

Q - Who is entitled to FMLA leave under the new military leave amendments?

A - The National Defense Authorization Act expands the FMLA by allowing family members of military personnel to take up to 26 weeks of unpaid leave to care for service members who suffered a serious injury or illness while on active military duty.

The law also entitles an eligible employee who is the spouse, son, daughter or parent of a service member who is on active duty to 12 weeks of FMLA leave to address certain qualifying exigencies. Qualifying exigencies may include attending military events, arranging for alternative child care, addressing financial and legal arrangements, seeking counseling, and participating in post deployment reintegration briefings.

Q - When can you legally terminate an employee on FMLA leave?

A) Employees requesting or taking FMLA leave are not necessarily protected from terminations or layoffs. As long as they do so for reasons unrelated to the FMLA leave, employers may continue to lay off employees in a reduction in force, or terminate employees for poor performance or violating company rules.

It becomes the employer’s responsibility, however, to prove that an employee would have been disciplined or terminated regardless of the request for FMLA leave. In addition to satisfying the FMLA’s recordkeeping requirements, you’ll want to demonstrate your commitment to compliance with a clear FMLA policy, mandatory workplace postings, and a documented record of allowing employees to take FMLA leave without reprisal.