The Family & Medical Leave Act: The Importance of Record Keeping as Proof Of Compliance
When does an employee qualify for the Family and Medical Leave Act (FMLA)? What rights does the employer have? In this post we cover these issues and the importance of good record keeping as proof of compliance.
Who Qualifies For FMLA?
An employee must have been employed for 12 months to qualify for FMLA, but those 12 months no longer need to be consecutive. Any prior employment up to seven years in the past needs to be considered in determining eligibility.
Illnesses qualify for FMLA if there is an incapacity of more than three full consecutive days with two visits to a healthcare provider within 30 days of the beginning of the incapacity, with the first visit within seven days of the first day of the event.
Employers have five days to request medical certification and may request recertification every 30 days. However, contact with the employee’s healthcare professional should not be performed by the employee’s immediate supervisor. Preferably, contact is made by an HR professional. Do not ask for diagnostic information; instead, describe the employee’s work responsibilities, and ask how this illness is going to affect the employee’s job performance; how often the employee will be absent; and what kinds of accommodations may need to be made. If there are safety concerns, fitness for duty (FFD) certification can be job specific, and may be required before an employee returns to work.
If there is any question about the validity of the illness, you may get a second opinion. Payment for the second opinion is the responsibility of the employer.
The national defense spending bill of 2006 provides for an additional 12 weeks of FMLA for the next of kin to use to provide care for injured military service personnel.
How To Protect Your Organization
Clear, well written policies are essential to minimizing the impact of FMLA on your organization. A good place to start is with thorough job descriptions that clearly define the physical and mental requirements of a position. Create a comprehensive certification form, and put a policy in place and have a healthcare professional available (but not on your payroll) for second or third opinions. Ask for recertification every 30 days, and attach a letter, along with the worker’s attendance record, asking the healthcare professional whether or not the workerís condition is incapacitating enough to warrant the days of absence. Do not be afraid to contact an employee who is out on FMLA. Statistics show that the longer employees stay out, the less likely they are to return. It is okay to let them know you miss them.
To minimize the cost of FMLA, have a written policy that requires employees to use other types of leave such as vacation and sick time before FMLA leave kicks in.
The Importance Of Training
Make sure all your supervisors understand your FMLA policy and the actions they need to take. Make sure managers know they can discipline behavior, but never the cause. For example, you can discipline an employee for being absent every Friday and Monday, not for being sick.