Not to be upstaged by the Families First Coronavirus Response Act, the Family and Medical Leave Act (FMLA) continues to present daily management challenges. For covered employers, the FMLA entitles eligible employees to 12 workweeks of unpaid job-protected leave for family and medical leave, and up to 26 workweeks for military caregiver leave. In practice, however, the FMLA has been misunderstood to significantly expand employees’ leave rights, far beyond the statutory entitlements.
As your legal risk management partner, HBL offers the following three strategies to prevent the misuse of FMLA leave…
Tip #1: Develop a communications strategy to avoid overextensions of leave.
As the employer, you may require employees on FMLA leave to update you on their intention to return to work. When an employee notifies you that he or she cannot return to work, you generally have no further obligation to maintain health benefits (except under COBRA) or restore employment. However, if the employee has leave time remaining and his or her circumstances change, the employee may be entitled to an extension, provided that the employee complies with the employer’s communication requirements. By developing a strategy for communications, employers may avoid inadvertently allowing employees who are not communicating to remain on FMLA leave after their leave time expires.
Tip #2: Implement a policy of stacking paid leaves with FMLA leave.
Under the FMLA’s regulations, employers may require employees to take their paid leave concurrently with FMLA leave, meaning that employees would be taking both leaves simultaneously. If employers do not exercise their right to stack leaves, employees’ leave rights are significantly expanded to include their leave under employer policies plus another 12 (or 26) workweeks. By stacking leaves, you may save significant costs and prevent the burnout of your other employees.
Tip #3: Revise your sick leave policy to require employees to complete FMLA paperwork after three consecutive days of absence.
When an employee calls off sick for three consecutive days or advises you of an upcoming medical procedure, your best course of action is to require the employee to complete FMLA paperwork and, where appropriate, designate the leave as FMLA qualifying. Under most circumstances, leave that was already taken can be retroactively designated as FMLA qualifying (provided the employee was eligible for FMLA leave and the reason for the leave is FMLA-qualifying).
BONUS TIP: Investigate employees’ inconsistent conduct while on FMLA leave.
Now more than ever, employees cannot escape the watchful eye to social media. Even if employees do not post pictures or videos, their “friends” may post and tag employees acting inconsistently with the reason for their FMLA leave. As more courts are considering the usefulness and validity of social media, there is some support for employers to use social media posts as evidence that employees were misusing their FMLA leave. Before taking any action, however, employers are advised to carefully consider and assess all relevant evidence, including the employee’s side of the story.
If you have any questions about the above, please contact Hall Benefits Law. We would love to hear from you, and the HBL team looks forward to serving as your legal risk management partner!