Everything you should know about DOL FMLA
If an employee suffers a debilitating illness or injury, they are allowed to take unpaid time away from their job without fear of termination under the federal Family and Medical Leave Act (FMLA). Employees can also take time off under the FMLA for a family member’s serious illness or a military service-related issue.
Similar to most regulatory compliance, adhering to the FMLA can be complex and involved. To simplify FMLA issues, covered organizations should consider sufficiently training staff members, using standard US Department of Labor forms, and administering proper delivery methods to ensure that employees get all the necessary information and documentation.
Department of Labor (DOL) FMLA Forms
The DOL has created helpful documents found online that organizations can use to comply with FMLA. All covered organizations need to put up a general notice detailing the provisions of the federal law in an obvious place. A DOL FMLA poster notice is readily available on the department website. Additionally, covered organizations need to supply all employees with this general information by either putting a copy in the employer’s handbook or documents regarding benefits and leaves of absence.
Once an employee asks for FMLA leave or company’s HR managers get notified that an employee might qualify for an FMLA-covered leave, the company’s leave administrator should promptly send the necessary FMLA paperwork to validate that a leave period is indeed covered by the law. The paperwork should include a FMLA rights and responsibilities notice, an FMLA eligibility notice, and a medical certification or qualifying military situation form for the employee to complete and submit. These DOL FMLA forms should be sent out in a way that an employer can confirm their employee does, in fact, receive them. Two recent court decisions served as evidence that companies need to be vigilant in this regard.
In Lupyan v. Corinthian Colleges, the Third Circuit Court of Appeals reversed a district court judgment to a company based on a premise that the employee had, in fact, gotten individual notice of FMLA rights. The employee denied ever obtaining notice that her time off counted against her 12 weeks of FMLA-protected leave and therefore did not know that termination would result if she did not come back after 12 weeks.
Some courts do recognize that a document delivered by US mail was positively acquired by the recipient, but the appellate court stated that this supposition is not an absolute. In the case, the court said that the employee's claim was enough to say that the matter should be settled by a jury, vacating the district court's judgment to the company.
The Third Circuit emphasized that organizations wanting to steer clear of material disputes regarding receipt of DOL FMLA forms and notices should send them via a method that enables confirmation of receipt. The appellate said, "the negligible cost and inconvenience of doing so is dwarfed by the practical consequences."
In another case, the District Court for the Eastern District of Michigan found that sending FMLA notices by e-mail, without any evidence that the e-mail had been seen by the employee, could not amount to an "actual" notice of an FMLA information.
In Gardner v. Detroit Entertainment, LLC, the court found a material issue of fact existed as to if Gardner had been properly notified of the need to recertify her qualification for intermittent leave. The question of notice being received was relevant as the company terminated Gardner through to its attendance policy due to her inability to recertify leave as established in the e-mailed notice. While the company asserted that Gardner had asked for e-mail delivery, she stated otherwise and went so far as to say she rarely read her e-mails. In fact, Gardner said she preferred to receive communications by mail after the company retained a third-party to deal with
These court cases emphasize the need for organizations to make certain that a clerical matter does not prevent them from showing it supplied a employee with the essential FMLA notice. Organizations must look into sending FMLA/DOL forms by registered or certified mail, demanding a return receipt or by using some other method by which receipt can be confirmed and validated. Concurrently, organizations should also make certain that the FMLA notice and evidence of its receipt are held in the employee's files.
Training and Company Policies
Companies need to ensure that their employees are capable of handling FMLA related situations.
Instead of training all employees in every facet of DOL/FMLA regulations, most experts recommend centralizing responsibility of handling requests and other clerical duties related to the law. All inquiries and other requests should be dealt with by a few select employees with responsibilities and qualification that are relevant to doing so. This centralization will help to maintain a consistent handling of all DOL/FMLA-related issues.
While managers may not directly handle FMLA paperwork, they should still be trained to deal with situations involving job-protected leave. This training becomes particularly relevant when it comes to recognizing that a situation or medical condition could fall under the auspices of the federal law.
For example, a employee might let their supervisor know their mother has been hospitalized and that they need to miss work for a few days. If the manager is not knowledgeable about what constitutes an FMLA qualifying situation, they might report the employee as absent and not inform the leave administrator. If the employee has other attendance issues or the leave period lasts for an extended period, absences, which should be protected under the law, could lead to disciplinary warnings, and in some cases termination. These types of actions could ultimately result in an FMLA interference claim, alleging that the company may have denied FMLA benefits that a employee was eligible to take.
To prevent this type of situation, all company managers should be trained in the right way to handle absences that could qualify under the FMLA. In particular, managers should be instructed to notify the leave administrator that handles such matters.