The Family Medical Leave Act (FMLA), signed into law in 1993, has had a tremendous impact on the way employers view and administer absence management. The guidelines in which most employers have to operate under the FMLA can be challenging, along with compliance documentation, as both federal and state laws dictate requirements that are frequently evolving and updating.
“The FMLA is a federal employment law that provides eligible employees up to 12 weeks of leave in a 12 month period of time in certain situations where they can’t work because of their own serious health conditions or because they have to care for a family member with a serious health condition,” Jeff Nowak, a partner at Franczek Radelet, said in an interview. “It also covers things like pregnancy and bonding time after a childbirth or placement of a child. That’s FMLA in a nutshell.”
WHAT IS FMLA
Since its enactment, the law has been implemented over 100 million times, and on average, 10.7% of the US workforce is on FMLA leave at any given point in time. The Department of Labor’s Wage and Hour Division (WHD), which enforces the FMLA, has outlined four scenarios that qualify a worker for FMLA leave:
- The birth or placement of a child.
- The need to care for a spouse, child or parent who has a serious health condition (which includes “incapacity due to pregnancy and for prenatal medical care,” according to DOL).
- The employee’s own serious health condition (which includes “incapacity due to pregnancy and for prenatal medical care,” says DOL), which renders him or her unable to perform the essential functions of the job.
- Any qualifying need related to the fact that a spouse, child or parent is a military member on covered active duty or called to covered active duty status.
COMPLIANCE GAPS IN FMLA TRACKING
The biggest challenges that arise out of FMLA scenarios are in how the communication occurs between employee and employer, and these processes often have “gaps” that leave the employee open to being fired, while the company is left vulnerable to non-compliance fines and lawsuits.
“The employee has to provide sufficient facts to put the employer on notice that the absence may be covered by FMLA,” Nowak said. “They don’t have to use the letters FMLA, they don’t even have to cite federal law. They simply have to provide enough facts to the employer to indicate that the absence might be covered by FMLA.”
However, WHD also stipulates that an employer may require its employees to comply with its formal policies for requesting leave, unless something prevents the employee from doing so.
While the impetus is on the employee to notify the employer of possible leave, once the employee gives notice, the responsibility then shifts to the employer to determine if the leave qualifies for FMLA.
It is this shift in the responsibility to the employer that leaves companies open to risk. Often times, managers fail to recognize an employee’s request for time off that would qualify for FMLA. An employee does not have to use the term “FMLA” when giving notification. For instance, chronic health problems are often covered by FMLA. If an employee calls in sick because of a health issue that prevents them from working, they may qualify for FMLA, even though they’re not asking specifically for it. If the manager doesn’t recognize its qualification, that employee may be docked on attendance, or disciplined otherwise.
FMLA TRAINING MAY NOT BE ENOUGH
The main way of dealing with these scenarios is to offer training to managers and supervisors, helping them understand when certain types of leave qualify for FMLA.
But with all of the training in place, there are still many who don’t spend the time to study, and make sure that they have comprehension of FMLA laws and qualifications. Employers have to be on the lookout for continuous, unplanned absences, where an employee is trying to take advantage of laws that protect them, while not having to work. As HR professionals and other managers know, determining if someone is suffering from a condition on a day-to-day basis can be a daunting task.
FMLA TRACKING AND COMPLIANCE SOLUTIONS
This is why it’s important for employers to have their own formal policies that provide the employee proper protocol for requesting leave. The company policies have to remain compliant within federal and state laws, but they can also assist in preventing an employee from taking advantage of the situation.
Compliance requires employers to track, document, and verify FMLA events with every employee, and this tracking can be a huge challenge for HR, especially in large organizations. However, HR tech has shifted the game for HR professionals, providing solutions that assure compliance in FMLA tracking.
Because FMLA presents several compliance issues that are complicated by additional state laws, policies and procedures need to be built and acknowledged, forms for requesting qualified time off, and documenting proof of the event are all necessary to abide by these rules. HR technology is a game-changer, as it not only helps stay up-to-date with new laws, it also helps efficiently and properly track FMLA compliance. This type of tracking helps employers identify patterns of abuse and avoid complaints should disciplinary action be required.
FMLA tracking and compliance is a requirement in business. In addition to training to understand what is and isn’t eligible, make sure you have a management system in place that helps you accurately track and document compliance when it comes to FMLA events.
Ben Olson is the Chief Technology Officer of Essium, a premiere software company that has developed a revolutionary, customizable, workforce management solution named Xenqu. Essium’s Xenqu Software leverages our Smart Content Technology to organize everything related to your workforce in one secure, digital file using the latest cloud-computing technologies and architectures.