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Complying with the FMLA: 3 Q&As

Learn how to administer and apply the FMLA in the face of regulatory updates, statutory changes and new court rulings
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Human Resources

Complying with the FMLA: 3 Q&As

By Nancy Delogu, Esq., Littler Mendelson

Q: "An employee requests permission to arrive 5-10 minutes late for work each morning because her spouse suffers from multiple sclerosis, and is so fatigued that he cannot get out of bed on his own in the morning to take his medicine. Is the employee considered eligible for intermittent FMLA? Is an employee asking to leave work on occasion to pick up her father, who suffers from dementia and sometimes wanders off, eligible for intermittent FMLA?" — April, Tennessee

A: Quite likely, yes. The Family and Medical Leave Act allows leave for an eligible employee when the employee is needed to care for certain qualifying family members (child, spouse or parent) with a serious health condition. According to the Department of Labor, "Needed to care for" includes both physical and psychological care. It includes, for example, providing care for a qualifying family member who, because of a serious health condition, is unable to care for his or her own basic medical, hygienic, nutritional or safety needs. This example would appear to cover both the examples you give above, assuming always that the employee is otherwise eligible for FMLA leave.

Other reasons the DOL considers qualifying may include the need to provide psychological comfort and reassurance that would be beneficial to a child, spouse or parent with a serious health condition who is receiving inpatient or home care, or filling in for others who normally care for the family member or to make arrangements for changes in care. These latter examples would seem to encompass the need to care for the father with dementia, even if he were perfectly safe while outside the care he receives when not wandering. You can find guidance on the DOL website as well as jump to links to updated FMLA forms (issued May 2015).

Maybe you already speak "FMLA-ese" and have a general understanding of the recent changes to FMLA regulations. But don't stop there – your employee's lawyer won't! Rather than a review of the law's basics, this session dives right into the complex (and legally dangerous) FMLA issues you face each day. FMLA in the Trenches: Advanced Tips & Tactics for Administering Problematic Leave of Absence.

Q: "If an employee has requested lifelong, intermittent FMLA leave (worked one year, and worked over 1,250 hours in preceding 12 months), can an employer make a request for updated medical certification once per year? The employee continues to work at least 1,250 hours in a rolling calendar period." — Anne, Minnesota

A: Yes. First, there is no entitlement to lifelong FMLA; eligibility is earned (or not earned) each year. Although in general an employer can ask for a recertification of the need for leave no more often than every 30 days, if the certification paperwork states on its face that the health condition will last longer, the employer cannot ask for certification more often than the condition is expected to last as stated on the certification form. Nevertheless, the U.S. Department of Labor has stated that if an employee's need for FMLA leave lasts beyond a single FMLA leave year, the employer may require the employee to provide a new medical certification in each new FMLA leave year.

Moreover, you can, if you wish, ask for a recertification of the need for leave every six months. You can also request a recertification if the medical condition of the employee has changed significantly, or where you have reason to doubt the continuing validity of the existing medical certification. More information can be found in the Department of Labor Fact Sheet 28G.

This recording is for moderate-to-experienced HR professionals and benefits administrators who are responsible for reviewing and/or making determinations about FMLA leave requests. FMLA in the Trenches: Advanced Tips & Tactics for Administering Problematic Leave of Absence.

Q: "If an employee was on FMLA leave and has exhausted the 12 weeks, but has not made contact with the company (to state that they are desiring to come back to work, or to request an extension of the leave), and their phone numbers and email are no longer in service, how long is the company required to wait before termination of employment?" — Martin, Minnesota

A: Your question serves as a good reminder to all employees that it is important to stay in touch with your employer while on leave. Unfortunately, there is no "correct" answer to your question, but here are some things to consider.

First, if the employee was on leave to care for another person, and has not responded to your attempts to reach him, then you may be comfortable moving more quickly to terminate than if the employee is on leave to care for his or her own serious health condition. If you believe the employee may be disabled, for example, then additional leave may be a reasonable accommodation under the Americans with Disabilities Act or a similar state disability discrimination prevention law. I would advise sending a letter by certified mail, at a minimum, to document your efforts to reach the employee before terminating the employment.

The same answer applies if you are willing to allow someone additional leave, but must move to fill the position held by the employee. After all, if you terminate someone and it turns out that they are disabled and need more time on leave, it's relatively easy to reinstate them on your books, but it is more difficult, if not impossible, to place them or return them to work if you have filled the role they held before going out on leave.

After you've considered all these angles, I'd say you can terminate the employment as soon as you are confident that you've made reasonable efforts to locate the employee, to no avail.

The FMLA opens a whole new area of potential risks and legal hoops to jump through. But it also hands you some additional tools to protect your company and effectively administer problematic leaves of absence. This recording explores both.

Our promise: By the end of this recording, you will feel much more comfortable applying the FMLA in your workplace.

Specifically, you'll learn:
  • How to manage the practical FMLA issues, not just the legal ones. You'll learn not just what the FMLA says, but what it means.
  • Michelle MaslowskiHow to leverage the employer protections in the law.
  • Important new FMLA court decisions. The FMLA is a moving target. Court decisions constantly reshape your compliance requirements.
  • Real-world scenarios. Attorney Michelle Maslowski will explain compliance issues using real-world situations that you face daily in administration of FMLA leaves of absence.
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