WHY YOU NEED AN FMLA REVIEW
The Family Medical Leave Act has been in effect for employers with 50 or more
employees for decades. While the number of obvious cases of interference has declined, the number of claims investigated by the Department of Labor over employers who get “too cute” with the Act, now make up the lion’s share of their investigations. Investigations, of course, can land you in court.
Instances in which companies were found to have skirted the Act include:
• Drafting and utilizing an FMLA policy which does not comport with the Act and utilizing that policy to the detriment of employees;
• Assessing attendance points and terminating an employee whose absences are later certified to be FMLA-related;
• Decline, for various business reasons, to approve FMLA leave when presented with FMLA certification of the need for such leave;
• Give an employee a negative performance review because the employee did not complete the same amount of work as other employees who did not take FMLA leave during the same performance review period;
• An employee returns from FMLA leave to find their pay or job duties have been reduced because they were on leave;
• Demoting, terminating, or reducing the job duties of an employee that requested or took leave;
• Discharging an employee on leave or upon return from leave. If it is due to something you discovered while the employee was on leave, document it and be prepared to defend your actions since it looks like interference on it’s face.
Remember, if you allow your supervisors to play “fast and loose” with FMLA fact patterns, the FMLA permits personal liability for violations. Federal courts routinely find an employee may sue not only the company but also individual managers (including HR representatives) for FMLA violations.
While DOL enforcement priorities make it unlikely that agency will sue you, under a referral system they have implemented (“Bridge To Justice”), the Department will refer an aggrieved party to the American Bar Association to find them an attorney.
To complicate matters further, the ADA can bite employers in the rear once FMLA leave has been exhausted. The Equal Employment Opportunity Commission has served notice that it is aggressively looking at companies that have automatic termination policies after an employee has missed specified periods of work, contending such policies violate the Act. You need to ask such employees before the end of their FMLA leave if they will be able to return and perform the essential functions of the job, with or without a reasonable accommodation.
As exercising your managerial rights to run your business becomes more complicated, you need to rely on qualified counsel to guide you through this minefield. They should review your employee handbook and the letters and forms in use with FMLA leave, to ensure that your supervisors are acting in conjunction with HR to keep you out of harm’s way.
Article by Loren K. Allison, attorney at law
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