|V. Tips and Pointers for Administering FMLA Leaves|
A. Written Policies and General Administrative Issues
It is important to provide employees with a complete and comprehensible summary of their rights and responsibilities under the FMLA. Well-informed employees will be less likely to attempt to abuse your policy, but in my experience, no more or less likely to attempt to take legitimate leave. When employees request leave, inform them in writing again and more specifically of their rights and responsibilities. Provide Department of Labor publications if available. Give the employee another copy of the employer's FMLA policy at the time he or she gives notice of the need for leave. An added bonus will be the prevention of litigation. Employees bring claims when they feel they have been treated unfairly in some way. If the policy on which discipline or termination is based is clearly communicated to the employee, and the employer follows the policy, the employer has done a significant amount to prevent litigation.
B. Importance of Designation & Notice
The employer's obligations under the FMLA's designation and notice provisions of the DOL's regulations once an employee has given notice of the need for leave are probably the least understood and most frequently violated provisions. Below is an outline of the specific actions the employer must take to provide employees with notice that their rights or responsibilities under the FMLA are being affected in some way. Note that all these requirements must be carried out within a "reasonable time after notice for leave is given by the employee -within one or two business days if feasible." Failure to designate and provide notice in compliance with the FMLA is technically a violation of the FMLA, and may in some instances lead directly to liability, even when the employee receives 12 weeks of leave with health benefits intact!
C. Certification & Communicating with Health Care Providers
Requiring certifications from health care providers is critical to the effective enforcement of FMLA leave. Indeed, this is probably the single most important thing employers can do to reduce the number of unnecessary leaves of absence under the FMLA. The Department of Labor has devised a sample form that illustrates how much information may be requested, including the nature of the condition of the employee or employee's family member, whether or not it constitutes a "serious health condition," whether a leave of absence is necessary and if so, its probable duration, and whether intermittent or reduced schedule leave is necessary.
D. Using Second and Third Opinions
As noted above, if the certification seems suspect, the employer does not have to accept an employee's assertion- or even the health care provider's assertion --that the employee is entitled to leave. In some cases, entitlement is obvious, but in many cases, it is not. Employers who require second and third certifications in suspicious circumstances will find that the other employees become aware that the employer takes the certification process very seriously. In the future, employees will be less likely to attempt to take leaves of absence that are not legitimate.
E. Developing Forms that Work
We recommend using specific forms for administering any FMLA/FMLR policy.
F. Paid versus Unpaid Leave
As noted above, FMLA and FMLR leaves of absence are generally unpaid. Nevertheless, in many situations, the leave of absence will be entirely or partially paid.
G. Choose a "leave year" and use it consistently.