The Family and Medical Leave Act is one of the best things to happen to working families in the last few decades. It’s also a significant area of risk for employers, especially since it’s constantly being refined through legal challenges. If not administered properly, FMLA can cause big headaches.
The questions can be endless and confusing: Is the language on medical certifications specific enough? Do you need to grant FMLA to an employee caring for a same-sex spouse if your state doesn’t allow same-sex marriage? If someone is on FMLA over New Year’s, does the holiday count against the 12-week allotment?
This week’s HR Outsourcing News Roundup brings you articles and blog posts with the latest information and advice on FMLA administration.
Consider FMLA before firing for attendance. Business Management Daily: “Since employees don’t have to ask for FMLA by name, but need only provide enough information to suggest the FMLA may be triggered, it’s best to move slowly and find out more about the absence before signing those termination papers.”
FMLA Certifications: When “Unknown” and “Probably” Aren’t Enough. The National Law Review: “So, here is your reminder to carefully read those certifications when they first arrive. If the certification includes a statement that the employee is ‘unable to perform job functions,’ but fails to specify those job functions, then it is unclear or non-responsive. Ask for more. Or, if the certification includes the terms, “unknown” and “probably,” look at it closely. ‘Unknown’ and ‘probably’ do not provide clear answers to the questions about the period of incapacity and the estimated treatment schedule or part-time or reduced work schedule. Ask for clarification.”
DOL to Change FMLA Spousal Leave: Notice of Proposed Rule Issued for New Definition of Spouse. HR.BLR.com: “The DOL says it will propose a definitional change to recognize same-sex marriages that are legally recognized in the place of celebration, rather than the state where the employee resides. Under the proposed ‘place of celebration’ rule, the employer must provide FMLA leave for all eligible employees in marriages that were valid in the place in which they were entered into, whether those marriages are same-sex, opposite-sex or common law.”
Does Holiday Time Conflict With FMLA Leave? Corporate Counsel: “Porter Wright Morris & Arthur’s Sara Hutchins Jodka has some thoughts on figuring out how the FMLA jibes with holidays: Do holidays count against FMLA leave entitlement? The answer: yes and no. Jodka explains, ‘The key here is whether or not the employee is absent for the entire week in which the holiday is observed.’ So, for example, if the person was gone the entire week in which Thanksgiving falls, that would count as leave. However, if he or she was just gone for a day or two during that week, only those days are calculated against the total leave time.”
Requiring Employees to Work on Maternity Leave Could Interfere with FMLA Rights. JD Supra: “Asking an employee to work during his or her FMLA leave is risky. According to the Eleventh Circuit, requiring someone to work from home while on FMLA leave is, by definition, interference with the employee’s FMLA rights, even if the leave is paid.”
If you have questions about FMLA administration for your organization, contact us. We’re here to help.
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