FMLA Leave Requests: Survival Tips for Employers

Kathleen M. Cruz

The Department of Labor (DOL) takes Family and Medical Leave Act (FMLA) complaints very seriously. A review of recent press releases published on the DOL’s website shows that the Wage and Hour Division has published investigations of FMLA violations on the DOL website. There are no deterrents more effective than public shaming and bad press.

A request for leave by an employee may look innocent enough, but your clients should be aware when a request for leave implicates the FMLA. Supervisors and managers who deal directly with employees have some skin in the game as well because the FMLA provides for individual liability. Below are some key tips to keep in mind when protecting your clients when employees request FMLA leave.

Consult the DOL’s Materials: Your Guiding Light

The DOL wants to help. In fact, the DOL provides many free materials on its website to help employees and employers understand their rights and responsibilities. For instance, the DOL’s ELAWS web application advises employers and small businesses alike on topics that fall within its jurisdiction. Additionally, the DOL’s other guidance documents, such as the Employer’s Guide to the FMLA and the Employee’s Guide to the FMLA, are helpful, free resources.

The Wage and Hour Division also circulates fact sheets that your clients may use as policies if they do not have them. (See Fact Sheet #28: The Family and Medical Leave Act). Because employers must post FMLA notices in their workplaces, even if they’re not an eligible employer under the FMLA, using the policies provided by the DOL is a good place to start. Posting FMLA notices in the workplace and updating FMLA policies in employee handbooks are both ways to comply with the FMLA’s employee notice requirements.

Review and Update Your Job Descriptions

So the employees have notice of their rights as mandated by the FMLA, what’s next for your clients when an employee requests leave for a FMLA-qualifying reason? If an employee is eligible for FMLA leave, the employer must tell him within five business days. An employer can require an employee to provide certification from a medical provider in support of the employee’s request for leave.

How do job descriptions play into this? An updated job description, which describes the employee’s essential job functions, can help in the medical certification process by providing a roadmap for doctors who are certifying an employee’s leave. If your client requires a fitness for duty examination upon an employee’s return, the employee’s job description can be used again. A job description establishes the employee’s essential job functions and performance requirements. It is hard for an employee to dispute that he can return to work if his doctor is informed by the employee’s job description. A bonus tip for your clients: explicitly state on the employee’s job description that attendance is an essential function.

Inform Managers and Supervisors

In this precarious field, your best offense is a strong defense. Training your client’s managers and supervisors and employing HR managers who are well-versed or who specialize in FMLA issues can help reduce potential problems. It may never be as simple as an employee requesting FMLA leave. Red flags arise when employees call in sick for more than three days at a time and during that time visit a doctor. Moreover, employers can even deny FMLA leave if an employee does not abide by company call-in procedures. Trained and experienced supervisors and managers are on the frontlines, catching small clues to an FMLA-qualifying leave based on the employee’s requests.

Navigating through FMLA pitfalls may seem onerous, but so long as your clients are vigilant and aware of situations where issues may occur, avoiding problems is likely. By using the foregoing tips and staying informed, employers can protect themselves against the FMLA's many nuances.

For a more in-depth analysis and more helpful tips, please see 91 Tips: Leaves of Absence and FMLA by Katrina Grider.

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Kathleen M. Cruz

Kathleen M. Cruz is a management-side labor and employment attorney representing employers in courts across Texas.