Statute Of Liberty

Following the rules

The Labor Department's regulations are just one reason why the FMLA, for all its societal benefits, has been an administrative headache for employers. Signed into law in 1993, the FMLA not only ensures employees time off for childbirth and adoption, but also for a broad range of medical conditions, including heart attacks and heart surgery, back ailments that require extensive therapy or surgery, most cancers, strokes, severe respiratory conditions, appendicitis, spinal injuries, severe arthritis, pneumonia, emphysema, nervous disorders, serious injuries due to accidents on or off the job, migraine headaches and emotional distress due to miscarriages. In addition, the 7th U.S. Circuit Court of Appeals has ruled that numerous minor ailments can add up to a "serious medical condition." For instance, in the case of an employee who suffered from high blood pressure, hyperthyroidism, back pain, severe headaches, sinusitis, stress and depression, the combination was so debilitating that the employer got in legal trouble for denying a request for FMLA leave.

However, you don't have to take the employee's word for it and overlook extensive absences whenever an employee doesn't feel up to working. The law allows employers to require medical certification of claimed conditions, which must be supplied within 15 days. In one 11th U.S. Circuit Court of Appeals case, an employee who had been disciplined five times for absenteeism was admitted to a mental hospital after she had a nervous breakdown. The woman's husband refused to tell her employer why she was missing work, but the couple sued the employer under the FMLA for firing her. The court ruled that the employee did not provide enough information to put the company on notice that it should grant FMLA leave.

Note that an employee does not have to refer specifically to the FMLA when requesting leave. Notifying you of a serious medical condition and requesting some time off is enough to trigger your responsibilities under the law. A good strategy is to grant conditional FMLA leave as soon as it's requested to "start the clock," then request proper medical certification using standardized Labor Department forms. If the employee doesn't provide sufficient proof of need within 15 days, you can then rescind the conditional leave. But be sure you make it perfectly clear what documentation you need.

You're also allowed to require periodic recertification of the need for the leave, and then of the employee's fitness to return to work. But there are strict time limits on sending notices and providing certification, so make sure you're familiar with the details of the law.

While your employees are on FMLA leave, you may not demote, terminate or otherwise penalize them because of the missed work. Accordingly, it's important to keep track of which absences are covered by the FMLA and which are not. Suppose a worker with a history of absenteeism goes on FMLA leave. If the employee later returns to work and again has a spotty attendance record, you can discipline the employee over the non-FMLA absences but not those covered by the FMLA.

When an employee returns from FMLA leave, the law requires that he or she be placed either in the same job or in an equivalent job, with an equivalent level of responsibility, pay and benefits. To avoid charges that you demoted the employee because of the leave, have a third party confirm that the new assignment is indeed equivalent. If you can manage it, it's best to keep the old job open until the employee returns, temporarily reassigning duties.

Keeping a job open for months, tracking the employee's illness, determining if medical certification is adequate, keeping records on which absences are covered and which are not-clearly, it's not easy to administer an FMLA leave and avoid legal trouble. And there remains the possibility of abuse of the system. Still, try to keep in mind what your employees gain from knowing there's a good job waiting on the other side of their problems, and what your company gains by retaining a valued employee.

For more detailed information, see the FMLA compliance guide at www.dol.gov.
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This article was originally published in the January 2001 print edition of Entrepreneur with the headline: Statute Of Liberty.

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