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June 27, 2006
FMLA in the 'Real World'

By Susan Schoenfeld
Senior Legal Editor for BLR

How does the FMLA apply in the "real world" of HR? Attorney Matthew Effland, a speaker at the SHRM 2006 Annual Conference and Exposition, has a few ideas. The realities of the FMLA are simple, he says:

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  • FMLA abuse will continue to occur
  • Intermittent leave will always be a problem for HR practitioners
  • A majority of employees use family leave for legitimate reasons
  • Front-line supervisors are the key to employer compliance
  • If an employer unintentionally violates the FMLA, it is still a violation, intent is not necessary.

Case Studies Make the Point

Using a series of case studies, Effland made several key points for employers trying to live with the FMLA in the "real world." Among those points:

  • FMLA makes no allowance for intermittent leave for post-natal care, unless the employee requests and the employer agrees to an intermittent leave arrangement.
  • Employees who pursue health-type treatments based on self motivation (i.e., attending Weight Watchers meetings) are not engaged in protected treatment and will usually not be protected by the FMLA.
  • A determination of coverage (or no coverage) by an employer's insurance carrier has no bearing on a determination of whether an employee's health condition qualifies as a "serious health condition" under the FMLA.
  • Second and third medical opinions are not permitted when an employers is pursuing recertification of an already certified serious health condition.
  • Notice to an employee regarding FMLA qualification or need for certification/recertification should not be done by email, but rather by U.S. mail (certified when the employee's situation is questionable).
  • Attendance forms may be stapled to an employer's request for recertification of intermittent leave to demonstrate when and how much leave an employee the employee has required.
  • Job descriptions should be attached to a certification form to guide the medical professional in their determination of the ability of the employee to do their job.

For more coverage of SHRM's Annual Conference & Exhibition, visit HR.BLR.com.

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