HR professionals consistently rate FMLA administration as one of their most difficult tasks. New court decisions constantly affect the FMLA landscape.
THE LAW: The FMLA provides eligible employees (those who have been on the job for a year) of covered employers (those with 50 or more employees within 75 miles) up to 12 weeks of unpaid leave for the birth or adoption of a child. Employees may also take leave for their own serious health condition or that of an immediate family member.
The FMLA also provides unpaid leave for employees whose family members serve in the armed forces. Family members may take this leave for a number of "qualifying exigencies" related to military service. Employees who are next-of-kin to someone with a service-related illness or injury qualify for up to 26 weeks of military caregiver leave.
Employers are required to post notices in the workplace informing employees of their rights under the FMLA. Additionally, employers are prohibited from interfering with, restraining or denying the exercise of, or the attempt to exercise, any FMLA right. Prohibited conduct includes failing to notify an employee of his or her rights under the FMLA when aware that the employee is taking FMLA-qualifying leave.
Employers must respond to the request within five business days stating whether the request was approved, denied or the employer needs more information (usually medical). The response must also provide the employee's eligibility status.
The FMLA regs are complex and the consequences of noncompliance are severe, for your company and even for you personally. Good thing there's a simple solution: Get the FMLA Compliance Guide: Practical Advice on Managing Family and Medical Leave.
WHAT'S NEW: A furniture salesman for office superstore Staples needed time off work when his wife fell critically ill. He informed his superiors of the situation in September of 2010. Rather than inform him of his FMLA rights, the company required him to use his paid leave (both sick and vacation) while working from home on many occasions.
By January 2012, Staples managers tired of the arrangement. They determined the salesman was not performing his job satisfactorily and terminated him. He lost his health coverage at a critical time in his wife's health care.
Two months later, the U.S. Department of Labor's Wage and Hour Division (WHD) investigated and determined the company never informed him of his FMLA rights. WHD filed suit in federal court.
During the litigation, the man's wife died. The company ultimately settled, paying the salesman $137,500 in back wages and an equal amount in liquidated damages.
HOW TO COMPLY: The settlement procedures provide employers with the broad compliance outline.
Staples is required to "promote an enterprise-wide policy for compliance with the FMLA by providing training for human resources and other managerial personnel with respect to FMLA notice and eligibility requirements; post FMLA enforcement posters in the workplace; and investigate and respond to complaints of potential FMLA violations concerning an employee's notice of FMLA rights, including correcting violations when discovered."
Examine your policy with the FMLA Compliance Guide. It's completely updated with the recent rules applying to employees who are in the military … have been in the military … or have family members in the military. You need a handy reference for these important new rules – in fact, for all the FMLA rules applying to everyone.
Whether you're an HR novice, a jack- or jill-of-all-trades who serves as part-time HR supervisor, or a dedicated HR professional, the FMLA Compliance Guide will open your eyes to new strategies, show you the path around legal landmines, and help you ensure compliance – without crippling your company by going too far. Get the Guide here...
1. Management training is key
Every manager or supervisor is the potential first contact for an FMLA leave request. For employers, each untrained manager or supervisor represents a potential for costly litigation, bad press, and poor workplace morale.
Schedule regular FMLA training for managers and supervisors. The FMLA should be covered as part of initial management training, with a refresher course every year or so.
Tip: Have a different person provide training each time. Those being trained will pay more attention to a new person than one they have heard before.
2. Have central point of contact
Many companies opt to train their HR staff on the FMLA's intricacies and then train managers and supervisors to refer all requests to the appropriate point of contact in HR. This arrangement, however, is not a substitute for training managers and supervisors. In fact, it only works if managers know how to recognize legitimate requests for FMLA leave, and understand how to avoid inadvertently retaliating against a leave-taking employee.
3. Workplace posters
One of the simplest forms of compliance is to post FMLA employee rights and responsibilities in the workplace. The DOL provides downloadable posters free of charge.
The DOL takes seriously employers' responsibility to inform employees of their FMLA rights. Employers that fail to provide employees with FMLA information may be fined $110 for each violation. Each day without the poster or proper notification constitutes another violation.
4. Have a policy
Although FMLA regulations provide guidance on complying with the law, employers also have a great deal of flexibility to customize their policies.
Your FMLA policy should spell out how much notice employees need to provide, who their point of contacts are, what the company's policy is on substituting paid leave, etc.
Update the policy annually to ensure it complies with the most recent court decisions. Work with your attorney on the policy update, since he or she will have to defend your action in event of an FMLA lawsuit.
We've made the guide complete because with any FMLA issue, the stakes are high and the burden of compliance is yours.
If a worker successfully files a lawsuit against your company, you could end up paying back wages and benefits, plus the employee's attorney fees and court costs – or double the entire amount if a court deems your violations were willful. Plus your own attorney fees on top of that!
And that's just the damage to your company. In some cases, you can be held personally liable when an employee doesn't get the leave he or she is entitled to under the law. Yes, we're dealing with the law here. And the law is unforgiving.
Fortunately, the FMLA Compliance Guide gives you dependable answers. That's because it's written by Matthew S. Effland, a shareholder with the prestigious nationwide law firm of Ogletree, Deakins, Nash, Smoak and Stewart, P.C.
Mr. Effland often consults on complex areas of employment law, including FMLA compliance, and he's a regular speaker at the Society for Human Resource Management's annual
conference. He also presents the popular FMLA webinar series for Business Management Daily. When it comes to FMLA expertise, he's your man. Get the FMLA Compliance Guide here.