Tips for Reducing FMLA Compliance Risk

February 27, 2020

The Family and Medical Leave Act (FMLA) has made a positive impact in the lives of many employees, but the overall process of administering FMLA is challenging for employers. FMLA provides 12 weeks of unpaid, job-protected leave during a 12-month period (eligible employees) for:

  • Birth and/or subsequent care of a newborn child
  • Placement and/or subsequent care of an adopted or foster child
  • Exigent circumstances related to a military member (employee's spouse, child or parent) called to active duty
  • Employee’s serious health condition
  • Care for an immediate family member (spouse, child or parent) with a serious health condition

Deciphering medical certification information for serious health conditions and adhering to FMLA requirements in a timely manner can be difficult. Here are a few tips for HR professionals and absence managers to help maintain compliance with the law.

Channel the DOL

An employee must submit evidence of a serious health condition provided by a medical professional to take leave under the FMLA and the employer must determine if this condition is eligible. Employers should view medical certification information like the Department of Labor (DOL), with careful analysis. An incorrect decision at this stage opens the door to potential legal and other risks.

Understand the definition of “serious health condition”

What does the DOL consider a serious health condition? Key indicators include inpatient care, pregnancy, a chronic condition, permanent or long-term conditions, conditions that require multiple treatments, or incapacity of more than three consecutive calendar days plus continuing treatment.

According to the DOL, incapacity means the inability to do any work or to be unable to perform any one of the essential functions of the employee’s job. A serious health condition qualifies if it meets one part of the definition. For example, a condition can be chronic and involve incapacity and treatment. If the condition qualifies under one those factors, it qualifies for FMLA leave.

The DOL analyzes pregnancy and child birth in a particular way. Pregnancy may qualify as a serious health condition (e.g., prenatal care and morning sickness that result in incapacity qualify). While the birth of a child is a qualifying reason for FMLA, it is not a serious health condition and no medical certification is required for birth and bonding.

Know who is considered a “healthcare provider”

Under FMLA, a healthcare provider is not restricted to a traditional medical doctor. Approved providers include podiatrists, dentists, clinical psychiatrists, psychologists, nurse practitioners, and midwives.

Review DOL opinion letters

The DOL provides regular FMLA guidance for employers through “opinion letters.” Understanding these letters is an important way to ensure compliance and reduce risk.

  • FMLA 2018-2-A indicates that an employee can qualify for FMLA leave after donating an organ.
  • FLSA2018-19 states that 15-minute, doctor-requested breaks can qualify for FMLA leave.
  • FMLA 2018-1-A approved an employer’s no-fault attendance policy that effectively froze an employee’s accrued points through the duration of his or her FMLA leave.

Timing is key

One of the best ways to reduce FMLA compliance risk is to know and adhere to the law’s timing requirements. Employers are required to provide employees notice of their FMLA eligibility within five days of their making a request. Timely notification is a critical way of ensuring employees are aware of their rights and obligations under the FMLA.

Factor in state FMLA leave laws

Beyond federal FMLA, employers must take into account state FMLA leave laws that may provide different or additional rights. Employers can unintentionally overlook state FMLA leave laws, particularly if an employer has remote workers or small numbers of employees across multiple states.

The nature of these laws vary, some adding additional family members to the definition of a covered family member, some setting lower employee thresholds for leave eligibility, some providing for only additional family leave rights, and some mirroring the federal FMLA but providing leave over a longer time period.

Currently, the following states have state FMLA leave laws:

  • California
  • Colorado
  • Connecticut
  • District of Columbia
  • Hawaii
  • Maine
  • New Jersey
  • Oregon
  • Rhode Island
  • Vermont
  • Wisconsin

In jurisdictions with state FMLA leave laws, employers should consider comparing the state law with the federal FMLA to determine any additional rights to which employees may be entitled. These laws typically have their own notice requirements and, in some states, a state-specific policy may be appropriate or required. Overlooking these details could result in liability under state law.

Consider outsourcing FMLA management

The DOL’s enforcement priority is systematic violations of employee FMLA rights. Anyone who manages employees should be trained on federal FMLA laws, which other state and local laws apply, and what protocol to follow if an employee requests leave. Family leave laws will continue to evolve as new laws are enacted and others change.

Outsourcing leave management to an expert third-party administrator (TPA) like Chard Snyder can help keep employers in compliance and provide relief for busy HR staff. A TPA managing FMLA keeps updated records, helps employees through the process, and stops costly abuse and misuse of leave. The TPA should provide relevant forms, determine eligibility, and handle communication throughout leave. They can also offer training to managers to educate them on what constitutes family or medical leave and how employees can start the process.