The Challenges of Administering Family and Medical Leave

Posted on Monday, May 27, 2019

The Family and Medical Leave Act (FMLA) provides employees with the security of job protection for up to 12 weeks for a qualified leave. But when does the clock on the 12-week period begin to run?

FMLA Basics

Covered employers must grant an eligible  employee up to a total of 12 work weeks of unpaid leave during a 12-month period for one or more of the following reasons:

For the birth and care of the newborn child of the employee.
For placement with the employee of a son or daughter for adoption or foster care.
To care for an immediate family member (spouse, child, or parent) with a serious health condition.
To take medical leave when the employee is unable to work because of a serious health condition. 
     The federal law does not apply to businesses with fewer than 50 employees. However, many states have additional laws with different rights which apply to employers who have a smaller workforce. And many states also grant employees leave for reasons and periods beyond those granted under the FMLA.

What Employers Face

 More than two-thirds of human resources professionals have experienced challenges administering the FMLA, according to one survey. 
    The Society for Human Resources Management survey found employers had difficulty with:

Tracking intermittent leave -- the practice of taking time off for a few hours or a few days when necessary (51 percent).
Vague documentation of medical leave certification by health care professional (46 percent). 
Costs associated with a loss of productivity due to absence of employees (40 percent).
Uncertainty about the legitimacy of leave requests (36 percent).
Morale problems with employees asked to cover for absent employees (33 percent). 
Chronic abuse of intermittent leave (32 percent).
Department of Labor regulations and guidance they find contradictory and confusing (27 percent).
Leave taken for an illness which does not qualify as a serious health condition (26 percent).

And what requirements must the employee fulfill to officially notify the employer? These are the issues presented in two cases which illustrate some of the challenges faced by employers.

The facts: An office manager who went through a complicated pregnancy started her leave in April. But the company didn't officially approve the leave until three months later. In an effort to extend her time away from the office, the manager argued the leave didn't really begin until July. 

The company disagreed and insisted the leave became effective on the April date. Eventually, the office manager sued the company, claiming it violated the FMLA, as well as race, sex, and pregnancy discrimination laws.

The District Court in northern Illinois sided with the company. It said the office manager wasn't entitled to a windfall -- in effect, a leave of around 25 weeks -- simply because the company initially failed to designate the time off as FMLA leave. She received all the leave she was legally entitled to, a full 12 weeks, when she began the leave in April. 

When the employee appealed, the U.S. Court of Appeals for the Seventh Circuit upheld the decision. (Myrick v. Aramark Servs inc., 7th Cir., No. 04-2400, 2005)

This case helps establish that the clock begins ticking on family or medical leaves on the day of an employee's first absence, not the day when the absence is officially designated as a qualified leave. 

However, there's no reason for employers to take chances.

 Practical advice: Send prompt written notice to employees who have requested and started a period of leave. State that the time off qualifies as FMLA leave. Specify the exact date the employee's leave will begin. This removes any doubt the clock has started ticking.

The facts: An employee called his manufacturer-employer and left a voice mail message informing the company he needed FMLA leave to care for his pregnant wife until the birth of their child.

The company sent the employee FMLA application forms, which he filled out and returned. On one form, he checked a box indicating his wife had "a serious medical condition," but provided no other details.

The company denied the FMLA leave request and terminated the employee for violating its strict attendance policy. Afterward, the employee gave the company a physician's note stating his wife had pregnancy complications. He was reinstated without back pay and filed suit under the FMLA. 

The U.S. Court of Appeals for the Seventh Circuit ruled  the employee did not meet the FMLA's advance notice requirement. His initial message did not give indication of complication or a serious health problem. He only produced the doctor's note after he was fired.

An employee "cannot just demand leave" under the FMLA, the court noted. Department of Labor regulations state that notice must be given either 30 days in advance in cases where the leave is foreseeable or "as soon as practicable under the facts and circumstances of the particular case." 

The court also stated: "Employees should not be encouraged to mousetrap their employers by requesting FMLA leave on patently insufficient grounds and then after the leave is denied obtaining a doctor's note that indicates that sufficient grounds existed, though they were never communicated to the employer."

 (Aubuchon v. Knauf Fiberglass; 7th Cir., No. 03-1382, 3/8/04).

Practical advice: Have understandable, written procedures and notice forms in place to handle FMLA requests. Display a Department of Labor poster detailing both your company's and employees' rights and responsibilities under the law. Include a policy on FMLA leave in your employee handbook and get employee's signatures acknowledging they have read and understand it. Once employees request leave, give them written guidance and get legal advice to ensure compliance with the law.

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