The federal Family and Medical Leave Act (FMLA) has been a part of the employment law world for almost 20 years. Nevertheless, it remains often an intrinsically difficult law to administer. Its provisions against interference with an employee’s leave and reinstatement rights and right not to be retaliated against for seeking and taking an FMLA leave are very serious. And the costs of a leave “gone wrong” can be very high.
The employer with a careful FMLA intake process can reduce the costs and burdens of FMLA administration and assure that only employees who are statutorily eligible get FMLA leave/restatement rights and those who are not, do not. Key provisions of any FMLA intake checklist are:
- Employer Eligibility: Did you have 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year? Smaller employers can fluctuate in and out of FMLA eligibility status from year to year.
- Employee Eligibility: Has the employee completed at least 12 months of service and worked at least 1250 hours during the preceding year? Is the employee employed at a worksite where 50 or more employees are employed within 75 miles of that worksite? Does your state have its own FMLA statute with different definitions of “employee”?
- Is There Sufficient Reason for an FMLA Leave? Does the employee have a statutorily defined “serious health condition” or have a family member with such a condition as defined in the FMLA? Has he or she provided sufficient medical certification? It is very easy for a sympathetic employer to “bend” on certain requests that are not FMLA eligible only to live with difficult precedent in the future when calculating the employee’s remaining leave or handling other employees’ FMLA leave requests. Any “sympathy” leaves granted that are not FMLA eligible should not be titled an FMLA leave.
- Don’t Overpromise Regarding Reinstatement: Be familiar with the specific requirements of reinstatement rights and the latitude provided employers under the FMLA’s “equivalent job” and “key employee” provisions. Employees often want to “nail down” reinstatement of a specific job at the intake – that is not their right.
- Is it an Intermittent Leave Request? Is the employee seeking an “intermittent” or reduced schedule leave? Sometimes employees are not clear as to whether they need full time off or if a reduced or intermittent schedule would address their FMLA leave needs. Determining this at the FMLA intake is critical. If it is an intermittent leave request, then careful consideration of the FMLA’s protections against operational disruption and the possibility of alternative job options will be important.
Takeaway: Small mistakes at the intake can have large consequences. Have an FMLA “intake” checklist that includes the factors above as well as other factors as determined by human resources and company counsel. The right FMLA intake checklist will help assure correct application of the FMLA for leave requests and protect against interference and retaliation claims.