The role that managers play in Family and Medical Leave Act (FMLA) compliance doesn’t have to be complex, so why do managers often fail to alert HR to employees’ FMLA leave requests and intermittent leave misuse? Failure to understand their role in FMLA compliance efforts may be why. HR can get them up to speed.
(For a checklist you can print and distribute to your managers to help them track their FMLA responsibilities, scroll to the end of this article.)
Notice About Leave
Managers should be trained to notify HR whenever they become aware that an employee is requesting time off for a medical condition, said Stephanie Dodge Gournis, an attorney with Drinker Biddle in Chicago.
They should also know that employees with serious health conditions may qualify for FMLA leave. The FMLA defines a serious health condition as an illness requiring inpatient care or continuing treatment. This would include three consecutive calendar days of incapacity (the inability to work or perform other regular daily activities) with two or more visits to a medical provider within 30 days, or one visit with a regimen of continuing treatment. Three calendar days of continued incapacity is not required for FMLA coverage of:
- Pregnancy and prenatal care.
- Chronic conditions (e.g., asthma, diabetes or migraines).
- Permanent or long-term conditions (e.g., Alzheimer’s disease or cancer).
- Conditions requiring multiple treatments under the care or supervision of a health care provider.
- Any medical condition resulting in an overnight hospital stay.
Managers should notify HR if any employee is absent for three consecutive days so HR can provide the employee the required notices in a timely manner, said Camille Toney, an attorney with Greensfelder Hemker & Gale in St. Louis.
However, waiting until there have been three consecutive days of absence to notify HR “may result in employees taking more leave than they are entitled to,” Gournis said. Employees eligible for FMLA leave may take a total of 12 weeks of leave within a 12-month period, either in one block of leave, more than one block or intermittently.
Waiting too long to notify HR “also creates a risk that an employee may inadvertently be disciplined under the company’s attendance policy on account of FMLA-qualifying days of absence,” Gournis said.
Intermittent leave—such as a few hours off per week for a recurring medical appointment—can be more challenging for managers to track than continuous blocks of leave. And if the manager isn’t paying attention, the employee may abuse the leave and take too much.
Adding a notification requirement to managers’ responsibilities can frustrate supervisors, Toney said. But managers should understand the short time frame in which HR has to accomplish several tasks to stay in compliance with the act. The FMLA requires employers to provide an FMLA eligibility, rights and responsibilities notice to employees within five business days of the initial request for leave or when the employer (manager or HR) acquires knowledge that an employee’s leave may be for an FMLA-qualifying reason.
Joan Casciari, an attorney with Seyfarth Shaw in Chicago, recommended that employers adopt a written policy stating that any employee who wants FMLA leave should contact HR. That way, the employer may avoid liability if the manager doesn’t realize that an employee has asked for FMLA leave.
But managers shouldn’t be too quick, either, to assume workers are eligible for FMLA leave. The worker must not only have a serious health condition but also must have worked for 1,250 hours for the previous 12 months for an employer with 50 or more employees within a 75-mile radius of the worksite.
[SHRM members-only toolkit: Managing Family and Medical Leave]
Employees must return completed medical certifications to HR within 15 calendar days of receiving the form or as soon as reasonable under the circumstances, noted Stéphanie Smith and Renee Inomata, attorneys with Casner & Edwards in Boston.
If HR requests more information, the employee has seven calendar days to comply.
While HR should handle the medical certifications, managers need to be aware of the process―including the possibility the employer will ask for second and third opinions―so they don’t get frustrated when HR seems to be acting slowly, said Laurence Donoghue, an attorney with Morgan, Brown & Joy in Boston.
HR sometimes may ask managers to encourage employees to return certification forms to HR or give incomplete medical forms back to physicians for additional information, Gournis said.
“Managers should be made to understand that FMLA medical certification forms provide employers the best weapon for preventing potential employee abuse of intermittent FMLA leave, as the medical certification forms provide the employer with important information regarding the expected frequency and duration of intermittent leave,” she noted.
While managers shouldn’t know most of the specifics of certifications, they should know what certifications say about the amount of leave time needed or expected so they can track if the employee’s actual leave reflects this. If an employee’s leave time differs from what the certification provides, managers can alert HR, and HR should request a recertification, Toney said.
Work While on Leave?
As a general rule, employees should not be allowed or required to work while on FMLA, including intermittent FMLA leave, according to Timm Schowalter, an attorney with Sandberg Phoenix in St. Louis.
In some instances, however, Gournis said that if no company policy prohibits it, managers may permit, but not require, employees to perform limited work while on FMLA, so long as their work time is tracked and they are paid for it.
For example, when someone is caring for a family member, work might be allowed on a limited basis, Toney observed.
But Gournis said managers should not ask employees to work during FMLA leave.
Other Compliance Obligations
Managers should also know that, if employees are out on leave that could have been designated as FMLA time off but was not, the employee may be entitled to take additional leave later in the year, said Nancy Gunzenhauser Popper, an attorney with Epstein Becker Green in New York City.
Supervisors should be reminded that, after an employee exhausts all FMLA leave, the employer may be obligated to provide an extension of leave as a reasonable accommodation under the Americans with Disabilities Act, noted Lawrence Casey and Robert Kaitz, attorneys with Davis, Malm & D’Agostine in Boston.
Jill Cohen, an attorney with Eckert Seamans in Princeton, N.J., also cautioned that the reasons underlying an FMLA leave are often sensitive, so managers should be mindful of confidentiality.
Please review the content below for a quick checklist of items HR should go over with managers regarding FMLA. You can also download a sample FMLA handout for managers.
To comply with the Family and Medical Leave Act (FMLA), managers should:
|Not approve or deny FMLA leave but instead let HR make this decision.|
|Notify HR whenever they become aware that an employee is requesting time off for a medical condition.|
|Not assume that someone is eligible for FMLA leave just because he or she has a serious health condition. HR will make the eligibility determination.|
|Realize that the medical certification process can be time-consuming but is a key way to curb leave abuse, particularly with intermittent leave.|
|Ask HR what medical certifications say about the amount of leave time needed or expected, track employees’ actual leave, and let HR know if the amounts do not match so HR might request a recertification. HR otherwise will handle medical certifications, unless managers’ assistance is requested.|
|Remember that the reasons underlying an FMLA leave are often sensitive and so be mindful of confidentiality.|
|Not require employees on FMLA leave to work.|
|Be ready to explain to employees the company policy about whether paid time off, such as vacation and sick leave, runs concurrently with FMLA leave. If managers are not confident in their understanding, they should refer employees to HR.|
|Know that the FMLA guarantees that employees will be restored to the same or equivalent position at the end of FMLA leave.|
|Ensure that no one is retaliated against for exercising FMLA rights.|
|Know that additional leave may be required by the Americans with Disabilities Act or state law.|