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:
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.
