Thursday, February 9, 2017

Focus on the FMLA – Part I

This post is the first of two about the Family and Medical Leave Act (FMLA)—and more specifically, about aspects of the FMLA that may be less familiar and seem to be sticking points for employers’ compliance efforts.
In general, the FMLA provides that private employers with more than 50 employees must provide 12 weeks of unpaid, job-protected leave and continued health benefits to certain employees who are affected by a serious health condition, the birth or adoption of a child, or the serious health condition of a spouse, child, or parent. In addition to the granting of leave and reinstatement after a leave, the FMLA requires that covered employers provide employees with information about their FMLA rights, and dictates the nature and handling of medical information obtained from employees. The Department of Labor has issued a fact sheet that provides a good basic outline of FMLA coverage and mandates.
FMLA compliance can be complicated and challenging. Here are some of the issues and requirements that seem to cause employers particular headaches:
  • What constitutes a “serious health condition”? Remember that a serious health condition can be physical or mental. Whether or not a condition qualifies for FMLA leave is not left to the subjective judgment of the employer or the employee. Generally, the law defines a serious health condition as a period of incapacity or treatment that is (1) connected with inpatient care, (2) requires an absence of more than three days from work and involves care from a health care provider, (3) is due to pregnancy or the need for prenatal care, or (4) involves a chronic, serious health condition. This is a broad definition, and employers should be thoughtful in assessing whether or not an employee’s circumstances present a covered condition.
  • What triggers FMLA rights? A request for leave or formal notification of an employee’s serious illness, injury, or pregnancy always requires that a covered employer review the employee’s eligibility for FMLA leave. In addition, however, employers have a responsibility to recognize facts and circumstances that could reasonably trigger FMLA eligibility, even if an employee does not specifically refer to FMLA leave or formally request time off. 
  • What proof of the need for leave does the employee have to provide? Employers may require that a request for FMLA leave be supported by certification from a health care provider. Health care providers who can certify the need for leave include doctors of medicine or osteopathy, dentists, psychologists, chiropractors, nurse practitioners, and others who are authorized to provide health services by state law. Employees have to be given at least 15 calendar days to obtain medical certification. Employers should be careful to limit requests for medical information and avoid requesting or obtaining unnecessary details of an employee’s (or family member’s) health history or health status. If an employer is not satisfied with the certification provided by the employee’s health care provider, the FMLA specifies a process through which the employer can obtain a second opinion.
  • What recordkeeping does the FMLA require? The Department of Labor requires that employers make and preserve detailed records relating to FMLA leaves “for no less than three years.” The dates and hours of leave, copies of employee leave notices, copies of notices of FMLA rights given to employees, and records of disputes related to FMLA leave, among other things, must be retained and made available to the DoL on request. The statute also specifically requires that records relating to medical certification and medical history of employees or employees’ family members be maintained as confidential medical records and kept separately from other personnel records.
Next week, we’ll focus on two more thorny issues: intermittent leave and the coordination of FMLA leave with other forms of time off. 
Posted by Judy Langevin