The takeaway is that failing to train managers could hurt your bottom line—so make
sure you bring supervisors up to speed.
GUARD AGAINST ABUSE
The vast majority of employees who request
FMLA leave likely have a legitimate need,
but some people seek to exploit the statute.
Take the case of the Dallas marketing
director who left work due to a panic attack
days after receiving a performance im-
provement plan, according to court re-
cords. A couple of weeks after that, she
was spotted at a Beyonce concert—in
her employer’s corporate skybox. Un-
der HR’s direction, she was fred for
performing poorly at work, attending
the concert and failing to respond to
her boss’s inquiries. The court found
that the employer was well within its
rights to terminate because of honest
suspicions about FMLA abuse.
To discourage such abuse, closely
review an employee’s FMLA medical
certifcation. “Employers all too often
accept vague and ambiguous informa-
tion supporting the need for leave,”
says attorney Jef Nowak, a lawyer
at Franczek Radelet in Chicago. “If
things are unclear, don’t be afraid
to ask for clarification on medical
facts”—particularly those supporting
the need for leave, and the frequency
and duration of absences. Managers
have the “right to know the basic med-
ical reasons why an employee cannot
work and for how long and should in-
sist upon information.”
When someone requests open-ended
leave, ask for additional information.
If the details still aren’t clear, consider
telling the worker to provide clarifca-
tion from his or her physician about the
need for time away from work. “When
an employer pushes back on vague cer-
tifcation or leave that is taken incon-
sistently with what has been certifed,
it sends a message that the employer
takes FMLA administration seriously
and will guard against leave abuse,”
If you are concerned that an employee is abusing intermittent leave—
for instance, to extend the holidays—
require the individual to recertify and
to ask his or her doctor to analyze the
pattern of absences. Is the time of consistent with what would be expected
for that medical condition?
“This can be a particularly efective
tool for employers to ensure their employees are using FMLA leave legitimately,” Nowak says. Sometimes doctors simply rubber-stamp their patients’
need for time of. “But what I fnd is that
this exercise encourages candid con-
KNOW YOUR ROLE: MANAGING FMLA AND ADA LEAVE
The complexity of the Family and Medical Leave Act (FMLA) has been tripping up HR
since it was enacted 25 years ago. “The FMLA is definitely among the top issues we
get asked about,” says Amber Clayton, SHRM-SCP, director of the Society for Human
Resource Management’s (SHRM’s) HR Knowledge Center, a resource for SHRM members with questions about employment-related issues. Adding to the confusion is the
Americans with Disabilities Act (ADA), under which employees may qualify for extended leave. Managing requests that involve two statutes is tricky but critical.
HERE ARE ANSWERS TO SOME COMMONLY ASKED QUESTIONS:
Do the two laws cover the same workplaces? Not necessarily. The ADA applies
to employers with 15 or more employees. The FMLA generally kicks in at workplaces with 50 or more workers within a 75-mile radius.
Do the statutes provide for the same amount of leave? No. The FMLA allows for
up to 12 weeks of protected leave. The courts have ruled that time away from work
can be an accommodation under the ADA, but the law doesn’t set a limit on how
much time a company is required to allow—it depends on the situation.
Can leave under the FMLA and the ADA run concurrently? Yes, but it doesn’t
have to. Workers who have used up FMLA leave can still request time away under
the ADA if they meet the law’s definition of a person with a disability.
The Equal Employment Opportunity Commission has said that leave for medical
treatment is a type of reasonable accommodation and that an employer may need
to extend time off until it becomes an undue hardship on the organization’s operations. But not all courts agree with the commission’s analysis. Given the differing
interpretations, it’s a good idea to discuss your specific issues with your employment attorney.
Besides granting additional leave, how else might I need to coordinate the
ADA with the FMLA?
Even if your company is not required to accommodate a multi-month leave of
absence under the ADA, you’ll need to explore other accommodations that would
allow an employee with a disability to return to work following the expiration of
his or her time away under the FMLA, advises Jonathan R. Mook, a lawyer with
DiMuro Ginsberg in Alexandria, Va. Such accommodations could include eliminating marginal job functions that the individual cannot do or transferring the person
to a vacant position with responsibilities that he or she can perform notwithstanding limitations caused by the disability.