After Eighteen Years, FMLA Still Frustrating Employers

The Family and Medical Leave Act (FMLA) which provides 12 weeks of job-related protection leave for family and medical issues was signed into law by President Clinton in 1993. Human resource professionals continue to struggle to comply with the lengthy and complicated regulations. Interpretations by the Department of Labor have varied from region to region and within the court system. If this were not enough, there are nationwide efforts to expand the benefits of the Family and Medical Leave Act to include Family and Medical Leave insurance. FMLA insurance is unemployment compensation and disability insurance paid to workers who suffer a wage loss when they take time off work to care for seriously ill family members, recover from their own serious medical condition, or bond with a new child.

Many legislatures are looking to California's historic FMLA insurance legislation for guidance. In 2002, the California legislature passed the paid Family and Medical Leave insurance program and in 2004, it was implemented to provide disability compensation to individuals who take FMLA time away from work. The program is funded entirely by employees who contribute to the state disability insurance program, and therefore, only those contributing employees are eligible for coverage.

Even though FMLA has been a difficult regulation with which to comply, surveys reveal that most employers provide more flexibility, more leave, and put more pressure on co-workers in an effort to keep pace with the realities and workplace demands. However, closer scrutiny in applying Family and Medical Leave will be necessary given the potential of new additional costs associated with Family and Medical Leave. Therefore, human resource professionals need to learn the finer points of complying with the regulations. Human resource professionals will need to:

Monitor employee absences more closely to determine whether or not the leave qualifies as FMLA, even if the absences are of short duration.

Require employee certifications of Family and Medical Leave and for more extended leaves, require recertifications.

Monitor closely and properly credit intermittent leaves and reduced-schedule leaves.

Request a second opinion as, unfortunately, many physicians are not fully aware of or educated when it comes to Family and Medical Leave. HR professionals should provide the appropriate tools to guide physicians such as certification forms and instructions.

Employers need to be cautious of inadvertently granting extra leave time. If the organization's leave policy is more generous than Family and Medical Leave, the employee will still receive Family and Medical protected leave plus additional time.

Employers may initiate Family and Medical Leave coverage. There has been significant confusion within the HR community and those responsible for administering Family and Medical Leave. Employees do not have to request FMLA to be protected. It is the employer's responsibility to designate Family and Medical Leave to qualifying events and subsequently monitor and credit time against the 12 weeks.

Workers' comp does run concurrently with Family and Medical Leave. Additionally, an employer can require an employee to use all earned paid time concurrently with Family and Medical Leave.

SESCO Management Consultants is available to assist with your human resource issues, including the administration of FMLA. You may contact us by phone at 423-764-4127 or by email at sesco@sescomgt.com .