You don't understand - they don't want FMLA
Elizabeth
26 Posts
Everything I read regarding FMLA seems to assume that employees want leave to be designated as FMLA. Many of mine don't. They have 15 sick days per year (we are a city) and they want to take all their sick leave and not have it count as FML. That way, they still have their 12 weeks of protected leave. We do not have an attendance policy that designates number of absenses because employees are simply entitled to accrue and use Sick Leave according to the Sick Leave policy. We, the administration, obviously WANT to designate the FML and start the 12 week clock running. So, some employees do everything they can to not cooperate (sketchy doctor's note, etc.). I would like to send everyone that is out more than three sick days a letter stating that their time off will be designated as FMLA (usually I know, from what they've told their supervisor, if they likely qualify for FML. Of course I don't know for sure until medical cert form is completed - but they won't do it. So, can someone please tell me definitively whether or not I am legally OK with designating FML without medical certification? Thanks. Sorry if I sound frustrated.
Comments
I think many of us in HR forget about how FMLA came into existense. FMLA is a mandated employee benefit for employees who choose to use it. Congress approved this law in 1993 to enable employees to have time off for specific reasons. The law was enacted to protect employees from employers who wrongfully discharged an individual with a health problem. FMLA is not employer-friendly, but it was never intended to be.
Employers currently struggle with how to impose FMLA on employees; when the law exists for employees to use-------if and when they choose to use it. As employers we control how, when and why employees have time off and I just don't lose sleep over a person who has a legitimate illness and needs to be away from work, but who chooses to not elect FMLA!! Do we force employees to apply for worker's compensation or unemployment comp benefits??? Probably not. It's there for them to exercise, IF they choose to do so. I don't see much difference with the FMLA issue. Should someone not want to elect FMLA, then they must comply with the employers other pertinent policies. It's difficult enough dealing with FMLA when a person requests it. Mandating it seems to me to be like whipping yourself!@#$
The main benefit of FMLA leave to employees who have paid time off available is that the absences can't be counted against them under an absenteeism policy.
So let's say you have a written absenteeism policy under which employees are only allowed to be absent from work so many days per year. This is different from a paid leave policy. An employee takes off a week and a half of paid leave to care for her sick son. She has three weeks of paid time off per year and doesn't want the time characterized as FMLA, so you let it go. Several months later, after she has used up all of her annual leave time on things like vacation and personal days, her grandmother dies and the employee asks for a few days of unpaid leave to go to the funeral. By this time, she's probably in trouble under your absenteeism policy. If she had designated the first leave (to take care of her son) as FMLA, you would not be able to count those absences against her and discipline or terminate her for excessive absences.
Of course, if you don't have a policy of disciplining people for excessive absences, this scenario isn't relevant. Anyone else want to take a stab at it?
>The main benefit of FMLA leave to employees who have paid time off
>available is that the absences can't be counted against them under an
>absenteeism policy.
>
>So let's say you have a written absenteeism policy under which
>employees are only allowed to be absent from work so many days per
>year. This is different from a paid leave policy.
>Of course, if you don't have a policy of disciplining people for
>excessive absences, this scenario isn't relevant. Anyone else want to
>take a stab at it?
I agree with this respondent. An absenteeism policy (Attendance Management is a better term) is very different from a Short Term Disability (STD) Plan. The latter is a Welfare Benefit Plan. The former is a Management Tool. Two totally different things, and you need both of them.
If you check the FMLA reg's carefully you will notice two relevant facts.
1. They allow you to require FMLA leave to run concurrent with paid leave you provide under benefits plans and
2. The required notice period ("two business days") generally is insufficient to get a Health Care Provider's certificate back.
This would imply that you are intended to make the decision of whether to designate a leave as FMLA without having the Health Care Provider's information. I do this by conditionally designating a leave as FMLA, "contingent upon verification of your Health Care Provider." If the employee refuses or fails to return the Health Care Provider certification I then recind the FMLA designation for lack of supporting evidence.
The USDOL's FMLA eLaw Advisor Program tells employees that it is their responsibility to provide medical certification when their employer requires it. [url]http://www.elaws.dol.gov/fmla/wren/er.htm[/url]
You stated that you usually can determine whether an absence would be FMLA covered by what the employee tells the supervisor. This is exactly what the FMLA reg's comptemplate. This is why a simple notice to a supervisor of sufficient information to qualify a leave request as FMLA covered triggers your notification requirement and starts the clock. The :"two business days" for making a determination runs from when the employee makes the request for time off to their supervisor, not when your get a Health Care Provider Certificate.
I hope this helps.
Paul
1. Do you have a written attendance policy?
2. If an employee is absent 15 days a year, is he/she considered to have satisfactory attendance?
You do have a right to require the return of the certification form.....and actually, I don't think it's much different from asking an employee to provide a physician's statement regarding their need to be out for any medical reason. It's just good practice. Surely you don't grant 3 months out of work without some medical statement to substantiate the need for the time. The concern I have with the approach some have mentioned about just allowing them to use their sick time is that they still have entitlement to 12 weeks of FMLA in addition. They also have job retention rights for that extra time which can impact your operations.
Isn't FMLA fun? NOT!
In the early stages, our employees also did not want to use FMLA leave, due to their generous sick leave banks and wanting to save it for later. I always point out the job protection benefits first to the employee. It is now common practice and generally accepted.
The FML plan gives Employers the right to designate these absences as well as vacation time as FML whether the employee wants it or not. However, Employers must state this in their own policies. Again, other features such as notifying employees within 2 days also apply.
Even our Union president had to drop his protest when he checked with his higher-ups. For our Union people, in most cases job security is built into the contract, so in most cases FML-type protections are still there even if their FML expires.
And of course, ADA has to be taken into consideration before we move someone out.
If that is the case, your city code or ordinances problably have a provision that says that any payout of city funds must be authorized or approved by the appropriate manager or authority (which may include a supervisor). Usually, this includes benefits payable under the city's sick leave plan or vacation plan or whatever paid accrued benefit time it has for employees. If that is the case, start from there.
If the employee is out for more than 3 days require verification if she wants it as paid sick leave.
FMLA does allow the employee to choose paid or unpaid time. However, also, under FMLA, the employer can designate that appropriate accrued time benefits be used for FMLA approved leave rather than unpaid FMLA time as well as declare the qualifying FMLA leave to be FMLA leave.
So, you're not completely "up the creek without a paddle" in being forced to allow the employees to declare sick leave, for example, not to be under FMLA. You do have some leverage.