FMLA: Potential for Abuse

Friday, March 16, 2012

If your role in a business requires that you oversee others either in a direct supervisory or administrative capacity; you should have an understanding that many employees are eligible for protected time off under The Family and Medical Leave Act of 1993 (FMLA). FMLA was designed to provide eligible workers with up to 26 weeks of unpaid time off to care for themselves or eligible family members who had a “serious health condition”. The law was later expanded to cover certain situations dealing with certain active and reserve military activities. So when is an illness serious?

In general, a serious health condition includes any situation which prevents the employee from working, attending school, or performing other routine activities and includes continuing treatments for chronic conditions such as chemotherapy or similar treatment regimens for themselves or eligible family members. Is it possible that a common everyday cold, flu, headache, or malady can meet the FMLA’s definition of serious health condition? Yes, it is possible. A cold or the flu can be a precursor to a severe respiratory condition. An ongoing headache may be an indication of an undiagnosed neurologic disease. Even an extreme sunburn could require several days of hospitalization and follow-on treatment.

Confronted with any potential FMLA situation, the FMLA Medical Certification Form is the basis for the employee to “certify” their medical situation is serious. Section III of the form is the employee’s personal physician’s attestment as to the employee’s medical condition and its estimated duration. SHRM, the Society for Human Resource Management also recommends a number of ways that employers can manage FMLA and remain within the law.

Training for supervisory and managerial employees is essential to FMLA compliance, as well as training for internal staffs that are required to administer human resource and payroll functions. As with most regulatory compliance, non-compliance can be expensive, time consuming and result in unnecessary employee relations issues. Key to FMLA compliance is annual and on-going training not only to refresh existing staff but for newly hired and promoted supervisors and managers. 

Tantamount to training supervisors and managers and administrative staffs; is employee training and communications to cover both FMLAS notice requirement as well as organizational absence management policies and procedures.  Many potential FMLA abuse situations can be avoided if both supervisors and managers and employees understand their roles and responsibilities when it comes to the company’s leave policies.