Making lemonade from FMLA lemons

My recent Family and Medical Leave Act (”FMLA”) post focused mostly on employer criticisms of the Act.

Without detracting from those generally valid criticisms, here are a few thoughts and suggestions on how employers can minimize FMLA problems. I’m inspired loosely by Catherine’s comment to my post.

Catherine said: “Managers sometimes seem to be afraid of both the FMLA and the ADA. They don’t understand that the protection works both ways and that there are teeth in both laws that let managers keep from getting put into binds like the example. Neither law forces businesses to ‘float’ true problem employees.”

So let’s look at a few ways to make life’s FMLA lemons into lemonade

First, take advantage of the fact that, as Catherine correctly noted, the Act explicitly allows employers to require (or employees to request) substitution of any “accrued paid vacation leave, personal leave, or family leave” for any part of the twelve week period of FMLA leave.

What does that mean? This example illustrates it:

Employee says: “I need 6 weeks’ FMLA leave for surgery and recovery. I understand that will be without pay.”

Employer may respond: “There’s good news and bad news. The good news is that you’ll get paid for three of the six weeks. The bad news is that those three paid weeks are your entire paid vacation allotment for this year — so you won’t be able to go on that trip to Cancun you had scheduled for Spring Break.”

From the employee’s perspective, obviously this can help alleviate financial hardship from unpaid FMLA leave.

From the employer’s perspective, it can also prevent occurrences like the following worst-case scenario:

Employee takes the full twelve weeks of leave (say, for birth of child). Then immediately or shortly afterwards employee takes paid vacation. Then employee quits.

Second tip, perhaps somewhat counterintuitive: it’s to the employer’s advantage to force employees to characterize absences as FMLA leave whenever possible.

Why? Because each employee only gets a maximum of 12 weeks’ FMLA leave per year. It’s not that unusual for an employee’s need for a big chunk of such leave to be preceded by sporadic shorter absences for the same reason (for example, sick child or parent requiring care).

If the short absences are counted as FMLA leave, part of the 12 weeks are already used up by the time the employee requests the big chunk of leave. But if the employer doesn’t manage its attendance policy correctly, it will not learn of the true reason for the shorter absences, will not designate them as FMLA, and may later be forced to allow the full twelve weeks — over and above the accumulated shorter absences. So “run the clock” on the twelve weeks every chance you get.

Third tip: carefully integrate FMLA management into an overall attendance policy.

Another problem that can occur is unknowingly disciplining or discharging an employee for an absence that would have qualified as FMLA leave. The FMLA regulations state:

The employee need not expressly assert rights under the FMLA or even mention the FMLA, but may only state that leave is needed for an expected birth or adoption, for example. The employer should inquire further of the employee if it is necessary to have more information about whether FMLA leave is being sought by the employee, and obtain the necessary details of the leave to be taken.

On top of this, employees may not be discharged or disciplined for FMLA absences, possibly even those for which FMLA rights were not explicitly asserted.

For this reason, it is best to take the initiative to find out if an absence qualifies before taking disciplinary action — even if the “last straw” was not an FMLA-qualifying event, it may be trouble enough for the employer if an earlier straw was FMLA-protected.

Finally: How can an FMLA-compliant employer retain the ability to control absenteeism?

The FMLA regulations say FMLA absences may not be counted against employees under “no-fault” absence policies — policies which avoid the excused/unexcused absence distinction, and just focus on quantifying absenteeism, typically with some form of ocurrence points.

This does not mean employers may not use a modified “no-fault” policy, such as the following:

FMLA-qualifying absences are “excused.” Perhaps some other limited categories are also “excused.” All others are counted quite strictly against the employee –- no excuses. For this to work properly, employees should understand the system and have ready access to FMLA paperwork.

The bottom line is that if employees are liberally allowed FMLA absences for serious health conditions (which FMLA currently does not require to be that serious), care of sick children and parents, and childbirth and adoption, the most typical legitimate reasons for excused absences are covered. Employees shouldn’t be absent much for other reasons. Car broke down? Take a cab or bus or get a ride from a coworker or friend. Got a headache or tummyache? Take an FMLA form to the doctor or else go to work. Overslept? Sorry, get to bed earlier and make sure your alarm works.

In establishing such a policy, look at track records of actual employees. Identify employees who seem quite clearly to be absence-abusers who should be disciplined. Identify others whose non-FMLA absences are at an acceptable level. Now design your “point system” so you can fire the former, but not the latter. It’s critical to find that proper balance.

This way, FMLA compliance becomes an occasion for tightening up on attendance violations by using the FMLA doctor certification as a useful way to define what absences are acceptable.

I’m sure I could cough up much more about the FMLA, probably enough to make this one of those “top ten tips” articles. But that’s enough for now. I’ve miles to go before I sleep.

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