FMLA: Family & Medical Leave Act
"The cover article in the June issue of Harvard Business Review is titled “The Big Idea: 21st-Century Talent Spotting.” Since all of us as managers are constantly on the lookout for talent, the title, of course, grabbed my attention. The author, Claudio Fernández-Aráoz, a senior adviser at a global executive firm, boldly claims that potential is “the most important predictor of success at all levels.”"
"Employers’ FMLA obligations are many, and pitfalls abound. One of the earliest places to make a mistake is in the supposedly simple act of designating the leave as FMLA-qualifying. For help, we turned to the “FMLA Bible.”"
When the employer has enough information to determine whether the leave is being taken for a FMLA-qualifying reason (e.g., after receiving a certification), the employer must notify the employee whether the leave will be designated and will be counted as FMLA leave within 5 business days, absent extenuating circumstances.
"If you don’t take advantage of your Family and Medical Leave Act (FMLA) tools, and you don’t do all you could or should do, you have only yourself to blame when there’s abuse, says attorney Stacie Caraway."
Caraway, who is a member of Miller & Martin PLLC, in the Chattanooga office, offered six tips for reducing FMLA abuse during a recent webinar sponsored by BLR®. Here are her six tips for dealing with FMLA abuse.
Tip # 1—Don’t Accept ‘Unknown’ Certs
FMLA certifications (certs) are like an “FMLA prenuptial agreement,” says Caraway. Once you certify leave based on a cert that says “unknown” or “as needed,” your hands are tied; you can’t change the agreement until that cert expires. That means you’ve given your employee carte blanche to come and go as he or she pleases.
While the FLSA allows some very specific pay deductions for exempt employees, such as taxes and wage garnishments, it's typically quite strict about the fact that exempt employee pay shouldn't be reduced for exempt employee absences in most cases. It's important for employers to understand when certain payroll deductions may be perfectly legal, and when others may not be under federal law so they can keep their organization in compliance.
Let's take a look at some of the exceptions—some of the rare instances where exempt employee pay can be reduced for absences.
FMLA certifications are perhaps one of the most important aspects of effectively managing your FMLA compliance obligations while simultaneously reducing the chance for FMLA fraud or abuse. One of the first tools at the employer's disposal is to ensure that the FMLA certification is complete and sufficient.
"In yesterday’s Advisor, we explored the tricky issue of exempt employees who have exhausted their paid time off (PTO). Today, we’ll look at what to do when deducting pay is not an option."
Here’s how to approach the situation:
- First, if it is important for the employees to be in the office during consistent work hours, make sure that is explained in a written policy. If the policy does not yet exist, create it if this is critical to your business. Make it part of the employee handbook that must be acknowledged. Once a policy exists, enforce it consistently for all employees, using the disciplinary measures already in place with your disciplinary policy.
- Next, consistently enforce the PTO rules for all employees. If PTO must be taken for miscellaneous work time missed, such as when an employee must show up late for any reason, then it should always be enforced. Don’t fall into the trap of only enforcing it for the employees who request the time in advance; put a mechanism in place to ensure that PTO is deducted when it needs to be, even if it wasn’t previously requested. Alternatively, if PTO is not required to be taken in this case, don’t make the mistake of “punishing” one employee by deducting PTO for times it should not be required.
- Be sure that employees understand what other leave types are available to them. Don’t find yourself in a situation, for example, where an employee qualified for FMLA leave but never requested it because he or she was unaware of options. It’s equally important to be sure to train supervisors to know what to look for—employees don’t always say “I need to take an FMLA leave of absence” or “I need a reasonable accommodation for my disability.”