The Family and Medical Leave (FMLA) Act comes with a mountain of complexities for employers to navigate. Oversights of even the seemingly granular components of the legislation can snowball into a costly mistake for any employer. With so much at stake, having the right resources to lead your team through the ins and outs of employer requirements helps you avoid missteps. Bukaty Companies’ HR Consulting team has years of experience navigating FMLA obligations. Review these quick-hit questions and answers to some common FMLA inquiries, then gain a greater understanding of FMLA requirements by booking a training session with our team.
How does an employer calculate an employee's eligibility for FMLA? An employee must have worked at least 1,250 hours in the preceding 12 months prior to their requested FMLA leave start date. Check the payroll, and include any compensable hours (travel or training) and overtime.
Does an employer with multiple locations need to count employees across all sites to meet the 50-employee threshold within 75 miles? If an employer has 50 employees for 20 workweeks this year, or preceding calendar year, an FMLA poster should still be posted even if no one is eligible for FMLA.
Can an employer require a doctor’s note or call-in for employees using intermittent leave, after each absence? Yes, an employer can require an employee to follow a call-in procedure. Employers should be careful when asking for documentation or doctor’s notes, as it could be considered a recertification. It’s best practice to wait 30 days before requesting or requiring employees to submit additional medical documentation. Exceptions can occur when there is a frequency of leave that does not align with the designation or approval, if anything casts doubt or if there is a pattern of habitual misuse of leave. To curb misuse, it is best for intermittent cases to be recertified after six months.
Can an employer request a predictable schedule for intermittent leave to avoid disruption? It depends on the kind of leave. If the leave is foreseeable, yes. If the leave is unforeseeable, no.
Are employers obligated to continue employee benefits during FMLA and pay for them? What happens if premiums go unpaid? Yes, employers are obligated to continue benefits. If the employee does not provide payment for benefits, an employer can cancel the benefits. Best practice is to provide grace, in case there are extenuating circumstances. An employer is required to provide a 15-day written notice of cancellation, due to nonpayment.
Can an employer provide a retroactive start date or designate leave? Yes, if it doesn’t negatively impact on the employee’s rights. It’s advised to go no further than the 15-day window from the requested leave date.
How should employers handle poor performance with an active or pending FMLA case? Remember that FMLA is job protection. Best practice is to inquire. Have the performance issues been documented prior to the FMLA request or before the employee went out on leave? If the employee is on a performance improvement plan (PIP) or final warning, or the employer needs to meet with the individual over a performance issue, that issue still stands. Going out on FMLA does not reset or wipe a slate clean for an employee. Performance issues should be addressed prior to leave, and ensure that the meeting has been previously discussed and documented. Otherwise, it could be perceived as retaliation for requesting or going on leave.
When it comes to navigating FMLA leave, eligibility needs to be evaluated on a case-by-case basis, and each case comes with a unique set of circumstances. Tackle FMLA cases with confidence after taking a training session. Or, free up internal resources by utilizing Bukaty Companies HR Consulting FMLA management service.
