By CATHERINE MORETON, J.D.
BLR Legal Editor
WASHINGTON, D.C.--The title of lawyer Robert L. Duston's presentation said it all: "A Decade Later, and It's Still a Headache: Administering the FMLA."
Duston, a partner in the Washington law firm of Schmeltzer, Aptaker & Shepard, P.C., gave tips on complying with the Family and Medical Leave Act on March 15 at the Society for Human Resource Management's 2005 Employment Law and Legislative Conference.
He emphasized that when it comes to complying with the FMLA, the focus must be on the documents and the details. He offered the following guidelines for HR managers:
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- There is no substitute for knowing the FMLA regulations and guidance inside
and out.
- Whenever practical, human resources managers should assume any request for
a leave may be covered by the FMLA and follow appropriate procedures for medical
certification and notices.
- Employers should require every employee who requests an FMLA leave to submit
a medical certification on the company's form, completed by the employee's
health care provider.
- If an employee does not provide the completed medical certification form
or provides a form that does not have sufficient information, the employer
should explain the deficiency to the employee and give him or her an opportunity
to comply (this will help the employer if a complaint is filed).
- Human resources and legal personnel should review every termination for
excessive absenteeism in cases where the employee has taken a leave of absence
in the 12 months before the termination, to make sure there are no issues
related to the FMLA, ADA, workers' compensation, or retaliation.
- Companies should ensure that their FMLA policy is coordinated with other
leave policies, on paper and in practice, so that employees and human resources
staff can understand how the various leave provisions interact.
Duston also emphasized the need to train supervisors and managers to recognize
issues related to the FMLA and the ADA. Often, an employee will contact a supervisor
or manager about the need for time off from work. If the supervisor or manager
receives information that is sufficient to give him or her "probable cause"
that an employee may be protected by the FMLA, the employer is on notice of
the need for leave. Supervisors and managers also need to be aware of an employee's
right to return to his or her job after FMLA leave-this may help avoid claims
of retaliation.
Finally, Duston noted that the rules related to intermittent FMLA leaves may
be addressed by the U.S. Department of Labor when it issues a notice of rulemaking
later this spring. In the meantime, when a request for intermittent leave is
received, according to Duston, employers may:
- Challenge the particular intermittent schedule to determine if a schedule
that is less disruptive to the workplace would meet the employee's needs.
- When an employee requests intermittent leave to care for a family member,
the employer should request a medical certification explaining the need for
the particular employee to provide care.
- Employers should utilize their right to request a second and even third
opinion confirming the medical need for the leave and leave schedule.
- Employers may transfer an employee who requests intermittent leave to another
position during the duration of the leave.