Navigating FMLA Challenges

Employers subject to FMLA must navigate complex rules that can be stressful and costly if mishandled. This article will provide an overview of FMLA basics and advice for handling common compliance challenges.

What is FMLA?

The Family and Medical Leave Act of 1993 established what is commonly referred to as FMLA. FMLA is a law that provides eligible employees with up to 12 weeks of time off work without the risk of losing their jobs or benefits for leave reasons covered under the law including for the employee’s serious health condition, to care for a family member, bond with a new child, or care for an injured service member or bond with a member who is being deployed. Private employers with at least 50 employees are subject to FMLA requirements.

Who is eligible for FMLA?

An employee is eligible for FMLA if they have had 12 months of employment in the last 7 years and has worked 1,250 hours in the 12 months leading up to the leave of absence. Work must have been performed at a worksite with more than 50 employees in a 75-mile radius. Dependents for whom an eligible employee may take an FMLA protected leave of absence to care for include a parent, spouse, child, or a relationship “in loco parentis.”

FMLA Timeline

Once an employee initiates their leave request or “triggers” their right to a leave, initial paperwork must be provided within five (5) business days. A Certification of Health Care Provider Form should be provided to the employee and a minimum of 15 days must be allowed for the employee to return the form. A seven-day extension may also be available if the employee does not return the paperwork within 15 days. Employers then have five (5) business days to respond to the employee’s request.

FMLA Compliance Challenge #1: Failure to recognize an FMLA trigger.

A common challenge employers face is the failure of a supervisor to report a leave that may fall under FMLA to HR so the FMLA certification process can begin. To prevent this issue, employers should train supervisors on how to recognize leaves that may be subject to FMLA. Employers can also provide an FMLA guide to supervisors with clear instructions on the process they should follow if they suspect an absence may qualify as FMLA. Regular review of a timecard report that shows anyone with more than a normal amount of PTO or unpaid time is also a good audit to recognize potential FMLA situations.

FMLA Compliance Challenge #2: Employees don’t return paperwork on time, but you know the medical condition is real.

If an employee does not return paperwork within the specified period but you know their leave reason qualifies under FMLA, it can create a challenge for an employer. Employers can consider faxing a copy of the paperwork to the employee’s doctor on their behalf, or it is also recommended by the DOL to provide a seven-day extension if necessary. For conditions that are obvious, like pregnancy, FMLA may be approved without medical certification, but this should be done so sparingly.

FMLA Compliance Challenge #3: The employee becomes non-responsive after they go on leave.

Many employers subject to FMLA have had situations of expected FMLA abuse. In this case, employers should document all attempted touchpoints, send communication via multiple methods (phone, email, text, US Mail) and consider sending a certified letter that must be signed for by the employee. If the employee does not respond and their FMLA approval time has exhausted, employers can send a letter via US Mail and certified mail to give the employee a required response date and consequences of not responded (i.e. voluntary resignation).

FMLA Compliance Challenge #4: The employee notifies you that their return-to-work date is changing, but not until the day before they are scheduled to return

Oftentimes employees will have their final appointments on the day prior to their estimated return date. The employee may not find out until this appointment that their leave is being extended. To be better prepared, employers can add a question to the certification form to confirm the next/final appointment or ask the employee to confirm verbally if it’s not on the form.

FMLA can present challenges in administration to employers. To help ensure your organization is protected, trust your FMLA administration to a qualified partner that can act as an extension of your HR team. At Flores, our leave consultants are HR professionals and understand the nuances of employment law and, more importantly, the overall employee experience. We act as an extension of your HR team and will mirror your company culture and practices to customize our processes to meet your needs. We operate with a high-touch philosophy with real, personalized interactions to help get employees through the leave of absence process smoothly. Our proprietary portal offers on demand, customizable reporting that gives you a real-time lens into FMLA activity.

If you are interested in learning more about Flores’ leave solutions, please contact a member of our Sales team at (800) 532-3327.