The Family Medical Leave Act (FMLA) covers public employers and private employers with more than 50 employees within a 75 mile radius.  29 U.S.C.A. § 2601-2654.  Employees can take 12-24 weeks of unpaid, job-protected leave for specified family and medical reasons.  Most employers are aware and comply with the Act, including the provision to inform its employees of the Act; however, most employers do not take advantage of stringent requirements of the FMLA as a way to protect themselves.

Employees often request FMLA leave for stress or intermittent or reduced leave, and such requests lack merit.  Employers have five days to evaluate whether an employee is eligible for FMLA leave.

Don’t be afraid to engage in discussions with employees regarding FMLA through the use of employee policies.

Company policies should be written and consistently applied.  Communication of requirements and expectations from employees is key to both protecting your company and ensuring you remain in compliance with the Act.

The requirements for taking FMLA leave should be clearly outlined in any employee handbook.   Well-drafted written policies protect the employer and can prevent abuse of leave policies.

1. Leave requests must be in writing. 

   Having employees document their leave requests will prevent misunderstanding as to the type of leave that is being requested by both the employee and the employer.  When the request is foreseeable, an employer can request up to 30-day advance notice.   There are obviously situations where the request cannot be documented immediately.  The employee should then notify the employer verbally as soon as practicable, typically within 1-2 business days of learning of the need to take leave.

2. Require FMLA leave to run concurrently with other types of paid and unpaid leave.

   Concurrent leave and substitution of paid leave (such as vacation, sick time, personal leave, etc.) is allowed under the 2010 amendment to the FMLA, though  both Louisiana and Mississippi allow accrued leave to be utilized first, other jurisdictions may not, so check your state or local laws. A handbook policy requiring an employee to utilize paid leave concurrently or prior to utilizing FMLA discourages abuse, and also prevents employees from taking 12-weeks of FMLA followed by additional paid time off.

3. Maintain call-in procedures.

   FMLA regulations require that employees must comply with an employer’s customary notice and call-in procedures, absent unusual circumstances.  The employee handbook should be clear as to how absences are to be reported, and what information is required by an employer.  An employee that fails to follow a company’s strictly enforced procedure may have their requests delayed or denied.

4. Documentation of medical conditions.

   FMLA allows the employer to require certifications and re-certifications to take the requested leave and/or to return to work.  The employee has 15 business days to provide the employer with the requested certification.  The employer cannot request a certification for every separate day that the employee takes FMLA leave (such as in cases of intermittent leave).  However, the employer can request that employee sign a personal acknowledgment that confirms that the time taken was in compliance with their intended FMLA leave.  This can also have an acknowledgment that states that the employee can be disciplined for false statements.  In order to avoid claims that FMLA is treated differently, this form should be signed for all medical leave requested by employees.  (i.e. Worker’s compensation, Americans with Disabilities Act, personal illness, etc.)

5. Multiple Opinions. 

   The Act also allows employers to require a second or third opinion (at the expense of the employer) when the request is unclear or suspect.  However, having this in writing puts employees on notice that suspicious leave will not automatically be approved.

6. No Secondary Employment Allowed.

   FMLA allows employers to have policies prohibiting outside or supplemental employment while on leave, as long as this is uniformly applied to all leave.

Communication is critical for employers and employees in navigating FMLA leave.  The easiest way for employers to take advantage of the Act’s requirements for notice is to have clear, consistent policies in the employee handbook and to have specific forms in place for employees requesting leave.

Allen & Gooch is providing this legal update for informational purposes only. This article should not be construed as legal advice or a legal opinion as to any specific facts or circumstances. You should consult your own attorney concerning your particular situation and any specific legal questions you may have.