A Triple Dog Dare: Take These Five Steps In 2014 To Drastically Improve Your FMLA Compliance

by Franczek Radelet P.C.

To do list2.jpgIt's 2014.  And I'm so cold, I can barely peck at the keyboard to type this post. Nevertheless, it's time to get back to work in the New Year, which always is an ideal time to review and button up your FMLA practices.  Let's face it: before we know it, six months will have passed and summer vacation will be luring us away from work. Will you really want to audit your FMLA practices then? Only if you're me.

So here's my Top Five "Fix it or Else" List when it comes to leave management in 2014. How many can you cross off your list by March? Come on, I triple dog dare you...

  1. Change your FMLA leave year to a rolling year measured "backwards."  This is low hanging fruit. Employers can define their FMLA 12-month period in one of four ways: a calendar year, a fixed year, a look-forward period (from the time the employee first takes leave), or a “rolling” 12-month period measured backward from the date an employee uses any FMLA leave.   You may have perfectly good business reasons for using something other than a rolling backwards year and, if you do, you can ignore this suggestion.  For the rest of you, use this opportunity to change your FMLA 12-month period to a rolling year measured backward! This method typically is the best choice for employers, as it avoids stacking 12-week FMLA periods back-to-back (which could occur under any of the three other methods). Keep in mind, though, that employers must provide employees with 60 days' notice of any change to the FMLA 12-month period, and you arguably have to bargain the change with any union representing your employees.  
  2. Conduct an FMLA audit before you run into trouble. How many times have you committed yourself to actually updating your FMLA policy, forms and practices to ensure they are legally compliant? Now, do it! As you prepare your 2014 budget, include funds for a review (with your favorite employment counsel -- here's one) of all your leave policies, forms and practices.  As we were the first to report, DOL on-site audits are becoming the norm in the FMLA world, and I speak from personal experience that our DOL friends are looking for (and expecting) compliant policies, forms and practices.  A small investment now will save you even more money down the road. Promise.
  3. Target intermittent leave abuse. Day in and day out, I help employers figure out how they can address suspicious intermittent leave situations. Employers often vow to do something about it, but fighting intermittent leave abuse can be tiresome and the results often are not immediate. But you can win at this! Use 2014 to employ targeted use of second/third opinions and re-certification, and use lawful means to engage the employee's health care provider about the employee's serious health condition and need for leave.  We provided tips for doing so in last month's webinar, which still can be accessed.  You also can address all of these tactics in your FMLA audit (see No. 2 above!).
  4. Reign in employees on "indefinite" leaves of absence. Remember Bob?  You recall him -- he's the guy who took FMLA leave nine months ago and has remained off work ever since. In 2014, address the "Bobs" in your workplace -- those employees that have remained on leave so long that you may have even forgotten about them. And they continue on leave with no return in sight. At your earliest opportunity, find out: 1) what's going on with the employee's leave, 2) what medical condition keeps them off work, 3) whether you can identify a reasonable accommodation to help them return to work and, if they still need more leave, 4) make their physician identify an estimated date upon which they can return to work.  When they cannot identify an estimated date, consider what rights you have to terminate their employment.  As we have discussed before, courts regularly uphold an employer's decision to terminate employment where the employee's leave remains indefinite.  Work with your legal counsel to be more aggressive in this area in 2014.
  5. Train your peeps. You ask "Why?"  I say, "Why not?" Respectfully, you'd be foolish not to. Your front-line managers typically are the ones taking the phone calls and conversing with your employees, often at critical times when the employee reveals the need for leave. Whether it's an off handed remark, or an ill-advised email, your manager's response to the employee often creates your FMLA liability.  From the front-line supervisor to the top executive, managers must understand their responsibilities to effectively manage an employee with a medical condition. Properly training your managers on their responsibilities under the FMLA should become a regular part of your compliance efforts, as it will significantly reduce the risk of legal liability.

What's left?  What are you working on in 2014 when it comes to leave management?


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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