In my conversations with HR professionals over the years, I can’t recall a single person who has said “I love administering FMLA! I’m 100% confident that we do everything perfectly with all of our leaves!” It’s no surprise that the Family and Medical Leave Act (FMLA) tends to be more of a “have-to” than a “want-to” for most employers. If handled incorrectly, FMLA has the potential to be a wet blanket on an employee’s otherwise good employment experience, not to mention the legal implications for the employer.
While there’s a lot more to administering FMLA, here are four key areas to remember when administering FMLA leaves.
Eligibility for FMLA
The first criteria for eligibility is that the employee must work for a covered employer. A covered employer has 50 employees each working day for at least 20 weeks in the previous or current year. If you are in fact a covered employer, then your employees are eligible for FMLA if they have worked for you company:
- At least 12 months
- At least 1,250 hours
- At a worksite with at least 50 employees in a 75-mile radius
Employers cannot provide FMLA for an employee who is not FMLA eligible. In other words, employers cannot simply deem a leave FMLA if it isn’t, even if they want to. In situations where an employee needs to take a leave and you want to accommodate their request, but it’s not FMLA, provide them with a corporate or other type of leave, if that’s an option for your organization.
New certifications and recertification of existing leaves
If an employee has been deemed eligible for FMLA, he or she is eligible for FMLA for one year for that reason. If an employee’s need for FMLA extends beyond that initial year, you can collect new medical certification from the employee in each additional leave year. Authentication and clarification, as well as second and third opinions, can be required of these new certifications.
A best practice is to recertify current leaves every six months, at a minimum. The regulations provide that recertification can be requested every six months regardless of the minimum duration of the condition, but not more often than every 30 days unless:
- The employee has requested an extension
- The validity of the leave request is in question
- Circumstances of the leave have changed
- Expiration of the minimum duration has occurred
Leaves that require an employee to be out an entire week or month aren’t necessarily the ones that cause administrative burden—it’s the intermittent leaves that tend to cause the problem. Intermittent leaves also tend to be the area of FMLA that are most abused by employees, and has the most impact on your business. Watch intermittent leaves for patterns of absence and request recertification as often as permissible.
Proper administration of FMLA isn’t just good business practice, it’s the law. Not only can the company be held liable, but managers and HR professionals have also been held personally liable in cases where an employee’s FMLA has been mishandled. To protect themselves and their employees, as well as minimizing the impact of improper use of FMLA, many companies have turned to outsourcing their FMLA administration.
For a few dollars per employee per month, companies can remove the burden of FMLA administration to a third party. This provides a business process around FMLA leave administration and helps minimize liability. Most disability carriers will offer FMLA outsourcing as an additional service, and in most cases can administer ADA and other company leaves as well. The benefits of outsourcing FMLA administration include:
- Simplified administration of all leaves and reporting capabilities
- Streamlined intake process for leaves, especially when more than one type is involved (i.e. a maternity where FMLA and Short-Term Disability will both come in to play)
If your disability carrier doesn’t offer FMLA outsourcing, there are other third parties that can, but you lose some of the synergies between disability and FMLA from both the employee and employer perspective.
Regardless of whether you already outsource FMLA, plan to outsource, or manage it in house, it’s a good idea to evaluate your current system and ensure that you feel comfortable that you’re meeting your obligations and the requirements under the law.