Tackling 2 of the FMLA’s biggest challenges
Posted September 7, 2017
The Family and Medical Leave Act (FMLA) has vexed HR professionals for years. Over those years, a number of challenges have risen to the top of the list. Here are some of the top challenges and how to deal with them.
Managing and tracking unforeseeable intermittent leave
Having employees show up when expected is a cornerstone of getting work done. While employees may be entitled to take FMLA leave on an intermittent basis, they generally should give you notice of the need for the leave, and you may hold them to that. You may require employees to meet your usual and customary call-in procedures unless extenuating circumstances are involved.
You should point out your call-in policy when employees first put you on notice of the need for leave, or even include it in the information you provide to employees when they provide such notice. If employees fail to provide appropriate notice, you may delay the FMLA protections. For example, if an employee could have given notice two days before the leave and failed to do so, you may delay FMLA protections for two days.
When it comes to tracking intermittent leave, it can help to have an automated tool that does the heavy lifting for you. This is particularly true if you have many FMLA cases. If, however, you have only a few cases, using a spreadsheet might be sufficient. You would still need to be accurate in your leave use calculations.
Managing the paperwork, including determining if the condition is a serious one
The FMLA does require a certain amount of paperwork between employee and employer, and some of the paperwork has required deadlines. To help manage the paper trail, you might consider a simple checklist:
- Within five business days of learning of the need for leave, provide an eligibility/rights & responsibilities notice. You may include a certification form, if applicable.
- Employee returns the certification within 15 calendar days.
- Review the certification to determine whether the reason qualifies for FMLA protections.
- Within five business days of receiving enough information to determine that the reason qualifies, provide a designation notice.
Some leave tracking tools include reminders regarding paperwork deadlines. Otherwise, you can put reminders on your calendar.
One of the steps involved is determining whether a condition is a serious one. For this, it helps to have a copy of the definition of a serious health condition and reference it when reviewing the certification. Consider all of the information in the certification in its totality. While the entries on the certification do not line up exactly with the definition, the two do work together. Here is a quick version of the definition:
A serious health condition is an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a health care provider.
Inpatient care is generally an overnight stay in a health care facility.
Continuing treatment is a bit more involved, however. Please note that “treatment” can include exams to determine if a serious health condition exists and evaluations of the condition.
A serious health condition involving continuing treatment includes the following:
- A period of incapacity of more than three consecutive, full calendar days, and any subsequent treatment that also involves -
- Treatment two or more times within 30 days of the first day of incapacity by a health care provider, or
- Treatment at least once, resulting in a regimen of continuing treatment.
- Any period of incapacity due to pregnancy or for prenatal care.
- Any period of incapacity (or treatment for) a chronic serious health condition requiring treatments at least twice per year and continuing over an extended period. These may cause episodic rather than continuing periods of incapacity.
- A period of incapacity for a permanent or long term condition in which treatment may not be effective.
- Any period of absence to receive multiple treatments (i.e., chemotherapy, radiation, physical therapy, dialysis) for restorative surgery or a condition that would likely result in a period of incapacity of more than three consecutive, full calendar days in the absence of treatment.
The full definition can be found at 20 CFR 825.113 – 115.
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