Managing an Employee’s Leave of Absence
In order to properly manage an employee's absence, an employer must consider the FMLA, the Americans with Disabilities Act (ADA), and any state law regulations. The FMLA does not supersede state laws if those laws provide greater leave rights to employees. This means that employers covered by the FMLA and a state law must take steps to ensure that employees receive the full benefit of both.
Which employers are covered by FMLA?Private employers with 50 or more employees (for each work day during each of 20 or more weeks in the current or previous year).All public employers are covered, regardless of size. (You have less than 50 employees?Look for a future blog about how you should handle a leave of absence.)
Employees are eligible for FMLA only after they have worked at least 12 months for that employer AND at least 1,250 hours during the 12 months immediately preceding the leave.
If you are covered by FMLA, here are just a few steps that you’ll want to take:
Every employer that is covered by FMLA must display or post an informative general notice about the FMLA. The poster needs to be displayed where all employees can see it. The text needs to be large enough to be easily read. There needs to be a poster even if there are currently no employees who are eligible for FMLA. To satisfy this requirement, go to http://www.dol.gov/whd/regs/compliance/posters/fmla.htm for access to a free poster. You also need to provide this same information in the Employee Handbook.
MAKE AN INQUIRY
When an employee informs you that they need to take time off, you should always ask whether the reason for the time off from work qualifies as FMLA leave. Doing so can save your business lots of money and headaches later on. Ask the employee if the absence is for an FMLA-qualifying reason so you can deduct the absence from the 12-week entitlement. Employees may not know what an FMLA-qualifying reason is so you’ll need to have a dialog with the employee to understand the reason for their request.Ask the employee if they need leave for their own serious health condition or the health condition of an immediate family.Be cautious that you don’t ask specifics about the health condition – it is up to HR or the individual who manages your leaves to make the determination.If you’re a manager, the less you know, the better for HIPPA privacy purposes.
FMLA notice may be verbal, and it may be given by the employee, a spouse, family member, or another spokesperson for the employee if the need for leave is not foreseeable. While employees are entitled to twelve weeks of FMLA leave, you must certify the leave as FMLA at the time they take it in order for it to qualify. To avoid an employee receiving more than the 12-weeks, you need to review each time off to determine whether it can be counted as FMLA leave.
Under the FMLA, you can require the employee to produce a medical certification from a health care provider concerning specifics of the leave, including the anticipated schedule of treatment. Once an employee requests FMLA leave, a Notice of Eligibility of Rights & Responsibilities form should be completed within five business days. This form helps determine if the employee is entitled to FMLA leave. Explain to employees the importance of providing timely and accurate information.
Once an employee has completed their certification forms, Human Resources should evaluate the certification and determine whether to: (1) approve the FMLA leave request; (2) obtain additional information; or (3) deny the FMLA leave request. If leave is approved, remember that you can require the employee to submit periodic status reports, once every thirty days or longer, indicating the status of their leave and their intent to return.
Job reinstatement may be tricky when you have an employee who is on short-term or long-term disability leave. In accordance with the employer’s FMLA Policy, employees returning to work from leave for their own serious health condition must provide certification from their health care provider that they are able to resume work and perform the essential duties of their regular job. Failure to do so may delay, or result in the denial of, reinstatement. Upon return from an FMLA-approved leave, an employee must be restored to his original job, or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment.
There are many rules and regulations regarding the FMLA. It can feel overwhelming when trying to determine whether or not an employee qualifies for FMLA leave and how to navigate through the entire process. We would be happy to have an informal chat about your circumstances. Give us a call today. If we are unable to meet all of your HR needs, we will direct you to an HR professional who can.