In this opening weekend of major league baseball, hope springs eternal for every baseball fan. In honor of my beloved Chicago White Sox, I offer an FMLA lineup card below that from top to bottom will help employers stay atop the pennant race throughout the year.
[First, feel free to play the National Anthem if you so desire...]
From the Leadoff Hitter to the end of the lineup, here are my FMLA All Stars:
- Leadoff Hitter: Draft and maintain a comprehensive FMLA Policy. Many employers do not maintain an FMLA policy, choosing instead to provide their employees the rather simplistic one-page DOL Poster, which often raises more questions than answers. A robust FMLA policy advises employees of their rights, contains provisions you can point to when answering your employees' questions about the Family and Medical Leave Act, and helps you minimize legal risk.
- Two hole -- Bunting the Runner Over: Use the appropriate FMLA notices and forms. Get yourself in scoring position by providing timely notice to an employee who requests leave that may be covered by the Family and Medical Leave Act. Keep in mind your obligations to provide the FMLA Notice of Eligibility (pdf), medical certification (pdf) form and Designation Notice (pdf). Many employers still do not use these forms correctly or within the time frames established by the FMLA regulations. Don't be that employer!
- Three hole -- Getting the Runner In: Prepare a call-in script of questions you ask an employee whenever he/she seeks leave so that you can determine whether the leave request might trigger the FMLA. Probative, but appropriate, questions are not only allowed under the regulations, they should be expected. 29 C.F.R. 825.303(b). See a previous post of ours on this topic.
- Clean Up: Use the medical certification process to your advantage. Looking to hit a grand slam?Medical certification is perhaps the single best tool available to employers to determine the reason(s) for the employee's need for leave and to weed out FMLA abuse.
- Your RBI Hitter: Seek recertification whenever appropriate, particularly where intermittent leave is involved. Generally speaking, employers can obtain recertification every 30 days, except where the healthcare provider indicates that the duration of the condition will last longer. However, an employee's pattern of absences often is inconsistent with the information provided on the medical certification, which gives the employer the right to seek recertification immediately. Seeking recertification: a) ensures that the employee's absence actually is covered by the FMLA and that you are properly tracking and designating these absences; and b) puts the employee on notice that they will be expected to provide continued and accurate certification about their medical condition. Employers who regularly recertify tend to beat FMLA abuse far more often than those who choose not to recertify.
- Backing up the Five Hole to Get the Run In: Follow up with the employee when medical certification is incomplete or inadequate. Come clean: how many of you simply give up and designate leave as FMLA protected no matter what kind of information you receive from the employee? Don't fall into this trap! When you receive medical certification that contains blanks or does not provide you adequate information to determine (for instance) why the employee needs leave, the duration of leave, the medical facts supporting leave, and the need for leave in the future, immediately follow up with the employee to obtain this information.
- Underperforming 7th Hitter: Authenticate and clarify FMLA medical certification. When an employee's FMLA medical certification is incomplete or inadequate, the regulations give the employee two options: a) cure the deficiencies in the certification; or b) allow the employer to contact the employee's health care provider. As an employer, why not use these options to your advantage? If the employee is not cooperating, obtain permission to clarify their certification. If the employee does not give permission and does not otherwise cure the deficiencies in the certification, the employer may delay or deny leave.
- Underutilized 8th Hitter: Train your managers about their responsibilities under the Family and Medical Leave Act. Who runs into FMLA-related issues more often than the Human Resources Department? Usually the front-line supervisor who fields the call off, or watches the employee leave mid-shift because the migraine headache is acting up again. These supervisors are in the best position to ask the questions necessary to determine whether the absence triggers the FMLA, or to direct the employee to Human Resources. These supervisors do not know where to begin unless they are properly trained.
- The "Second" Leadoff Hitter: Enforce usual and customary call-in procedures. Under the FMLA regulations, absent an unusual circumstance, employers may deny FMLA leave if the employee fails to follow the employer's call-in procedures. Employers: This is a big deal! If your call-in policy requires the employee to call in a certain amount of time before the shift starts to report an absence, and the employee fails to follow this policy, you can deny FMLA leave (and subject the employee to discipline under the attendance policy) absent an unusual circumstance.
It's a bit early in the season to talk trash. But with these FMLA All Stars in place, it won't be long before your confidence in administering FMLA soars. Until then, bring on baseball!