FMLA: The Basics and Common Issues

SVAM recently hosted a Lunch & Learn led by Catherine Karczmarczyk and Ramesh Murthy of PennStuart, entitled “The FMLA: What Every HR Manager Needs to Know.” This training covered the basics of the FMLA, common questions, and missteps to avoid.

Public agencies, schools, and private companies with 50 or more employees are required to provide FMLA to their employees. Employees covered by FMLA are eligible if they have worked at least 12 months for the employer, and have at least 1,250 hours of service, including temp time, during the year before their leave is set to begin. Covered employees must give at least 30 days notice to a management level employee if their need is foreseeable, for example, pregnancy.

The three most common qualifying leave reasons are for:

  1. Birth or placement of a child for adoption/foster care. The leave must be completed by the end of a 12 month period and can be taken all at once or in blocks of time.
  2. To care for spouse, son, daughter, or parent who has a serious health condition. This includes parents who stood in loco parentis, but not in-laws. It also includes children for whom the employee stood in loco parentis.
  3. For the employee’s own serious health condition. This includes inpatient care or continuing treatment.

Qualifying Military Family Leave is also covered for the active duty of a spouse, son, or daughter. FMLA leave can be taken as blocks of time, as intermittent leave, or as reduced hours leave.

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One of the most important things a company can do is train supervisors on the appropriate actions to take regarding leave time. It is also important for both supervisors and HR to document everything and maintain records. There are several common supervisor issues that need to be avoided. First, avoid oral and written communications that can be construed as unsupportive of the leave given. For example telling an employee it is not a good time to take leave, or writing in an employee’s evaluation that they miss a lot of work.

A second issue is treating employees on FMLA as disabled. If an employee is prevented from doing essential job functions that is considered FMLA. ADA is when an employee needs accommodations to complete job functions. The two laws have divergent aims. If, however, an employee uses their 12 weeks of FMLA leave, employers can consider additional leave as a request for reasonable accommodation under ADA.

A third issue is the handling of leave requests. Since many employees are unfamiliar with the term FMLA, the burden is on the employer to recognize leave requests. It is also important for the employer to:

  • Require medical certifications
  • Notify employee of approval of leave
  • Notify employee of their rights and responsibilities
  • Notify employee when their leave has been exhausted

Another issue is a company’s failure to update policies. It is important for a company to have a policy in writing regarding FMLA and to update this policy annually. The policy should include an explanation of whether or not PTO and STD will run concurrently with FMLA, or how that will be handled. It should also cover moonlighting, and collection of insurance premiums. The policy also needs to address if leave is on a rolling or calendar basis.

The final issue is FMLA abuse, which is seen most often with intermittent leave. If employees show patterns of missed work, employers can get 2nd and 3rd opinions from doctors. Surveillance can also be sparingly used, but needs to be followed up with an opinion from a medical doctor regarding whether or not the activity in question is considered beyond bounds. A doctor’s note for missed time can always be required and employees can be asked to recertify every 30 days if the employer is doubtful that leave is still necessary.

Important Notes:

The information above serves as a recap of the presentation provided by Catherine Karczmarczyk and Ramesh Murthy with PennStuart, but was not written by Ms. Karczmarczyk or Mr. Murthy. All information and quotes were sourced from the presentation provided and were written by SVAM.

SVAM Members can view the full video presentation here.

None of the advice or comments attributed to Catherine Karczmarczyk, Ramesh Murthy, or PennStuart should be relied upon as legal advice, nor was any advice or comments intended to be legal advice.

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