FMLA: 5 Things Every Manager Needs to Know What is the FMLA and what do I have to know about it? As a manager, this question may have crossed your mind at some point. And rightfully so. The FMLA is complicated, and it can seem like a gray area for many managers. Before we dive into the five key things to know about FMLA, let’s cover the basic framework of the FMLA regulations. The FMLA is a federal law, and it applies to employers with 50 or more employees, mandating job protected leave to employees in certain scenarios. It requires employers to provide up to 12 weeks (in most cases) of unpaid leave in any twelve-month period, maintenance of health benefits during the covered leave period, job protection or restoration to the same, or very similar, job with comparable pay and benefits, and provides protection from retaliation from exercising rights to request and take leave. While the basic provisions of the FMLA sound fairly straightforward, the everyday application can get complex. Here are the top five things every manager should know about managing FMLA. 1. Understand the company’s obligations. The company is obligated to send the employee communications, notifying the employee whether or not they’re eligible for FMLA. Once you receive their leave request and the proper paperwork, you also have to tell the employee whether you’re going to designate the time as proper leave. These notices should be given within five days of receiving the request or inquiry. Organizations also must track and record all FMLA times used, regardless of paid time off and other types of paid leave. As you track and store this information, you must also keep health information confidential, including any diagnosis or condition of the employee or the employee’s family member. 2. Learn when to initiate the leave process. Identifying when the employer’s FMLA obligations start is probably the most critical role that managers will play in the FMLA process. Typically, managers have an HR department, HR administrator, or someone in the office who is responsible for checking the compliance boxes for FMLA and processing the approval. However, they can’t do their job unless you tell them when one of your employees has requested leave or is absent from work for a reason that may be covered by FMLA. Employees can take leave under the FMLA for several reasons: For incapacity due to pregnancy, prenatal medical care, or child birth. To care for the employee’s child after birth, or placement of a child with the employee for adoption or foster care. To care for the employee’s spouse, son or daughter, or parent, who has a serious health condition. For a serious health condition that makes the employee unable to perform the employee’s job. Eligible employees with a spouse, son, daughter, or parent on covered active duty (deployed to a foreign country) or call to active duty status in the National Guard or Reserves or regular Armed Forces, may use their 12-week leave entitlement to address certain qualifying needs. Employees may also take up to 26 weeks of leave to care for a covered injured service member during a single 12-month period. In addition, FMLA leave can be intermittent. This is one of the areas that is overlooked by managers the most. Examples of when intermittent leave often occurs include: Migraines. Mental health conditions. Caring for a child or family member with a serious health condition. Leave for treatments, physical therapy, etc. Reduced schedules/hours due to restrictions, treatments, or caring for family members. When you learn that one of your employees is missing work for these, or similar, reasons, that’s when the FMLA process should be initiated—even if the employee hasn’t requested FMLA or a leave of absence. 3. Leave obligations don’t end with FMLA. 12 weeks of FMLA leave isn’t a magic number that automatically ends an employer’s obligations to provide leave. When the employee hits 12 weeks, you don’t say “Bye, you’re done. If you need 12 weeks and three days, we just can’t do that.” In keeping with several rulings issued by the EEOC, employers should not have a hard and fast leave policy specifying that employment ends after a certain amount of leave. Instead, you must evaluate each request for additional leave or work restrictions as a request for accommodation under the Americans Disability Act (ADA). Talk with the employee, see how much more time they would need, and really look hard at the request as an accommodation. Can we accommodate this, or not, reasonably? The lesson here is 12 weeks isn’t set in stone for any employee, and the ADA can apply to requests for leave extensions after the 12 weeks of FMLA is up or when the FMLA doesn’t apply. Here are some basic leave obligations under the ADA: Employers must engage in the interactive process and make a reasonable accommodation to the known disability of a qualified applicant or employee if it would not impose “undue hardship” on the operation of the employer’s business. Leave and reduced/modified schedules must be explored as reasonable accommodations when FMLA is exhausted or unavailable. Employers are not required to create jobs to accommodate restrictions or schedules, but open positions should be considered and/or offered if the employee is qualified. There are also varying rules in different states regarding leave. To help you, here’s a list of the most common types of leave from various states. Examples of state leave provisions: Domestic Violence Leave Family and Medical Leave Beyond FMLA Pregnancy Disability Leave Crime Victim Leave Bone and Marrow/Organ Donor Leave School Activities Leave Paid Sick Leave or Paid Family Leave Bereavement Leave Voting and Jury Duty If you have employees in multiple states, always ensure you’re granting leave in accordance with state, local, and federal requirements. 4. Avoid retaliation. While this may sound pretty straight forward, it can be more complicated than expected. Retaliation is penalizing someone for exercising their rights. Under the FMLA, employees have the right to request and take FMLA, so employees may not be penalized for requesting or taking FMLA-covered leave. To help reduce the risk of a retaliation claim, consider the employee to be working and performing well for all the time they are gone on FMLA leave, because you can’t hold protected absences against them in any way. When you’re thinking about providing promotions, training opportunities, or pay increases, assume employees on leave had perfect attendance and performance during any covered leave time. Employees who are using, or have used, leave shouldn’t be considered untouchable, however. You can, and should, discipline employees for not following your call-in procedures or company rules. Just because someone is taking FMLA, doesn’t mean they shouldn’t be held accountable for the normal performance requirements and policies/procedures. What’s off limits is penalizing employees in any way for absences that are (or should be) protected. Our top tip? Have a talk with an employee taking leave and ensure call-in procedures are clear and understood by all parties on the front end. 5. Track and manage absences diligently. One of the more burdensome requirements of the FMLA is tracking, particularly in cases of intermittent leave. Any, and all, FMLA time should be tracked closely to ensure everyone knows how much protected leave an employee has used and available for use. You should also communicate regularly with employees on intermittent leave. Ensure they know call-in procedures and how to track and report their leave. You can also check in on them from time to time, and let them know you’re thinking of them. Miscommunications can cause hard feelings, and those are a lot harder to deal with than managing absences diligently in the first place. When intermittent leave is used, you should track it as it occurs, whether that’s through a time clock or a manual calendar. When you’re tracking leave, remember that FMLA can run concurrently with workers’ compensation, vacation, sick time, PTO, disability benefits, and all other types of leave. The catch is that an employer must notify the employee of what time is being tracked and designated as FMLA covered. That way, an employee won’t get 12 weeks of FMLA and then four weeks of PTO after that. Instead, it all usually happens at the same time, as FMLA is also used during those other forms of time off. The caution with this is that you shouldn’t approve a two-week PTO request for surgery, when instead the FMLA process should be initiated. The FMLA can be a difficult beast to understand, but these five areas give you a solid starting point for helping your employees through the process. While these are Aureon HR's top five tips for managers, we’ve only covered the tip of the FMLA iceberg, so don’t take my word for it when it comes to legal issues. I’m not an attorney, so this shouldn’t be considered as legal advice, or gospel. How do your managers currently handle the FMLA process? Sarah Charlier As a Human Resources Business Partner for Aureon HR, Sarah Charlier engages directly with Presidents, CEOs, and Executive Leadership in organizations to identify and execute strategic human resources initiatives. She serves as a business partner by leading executives and managers through employee relations issues, technical labor law compliance, preparing managers to effectively manage employee performance, and creating and adapting HR processes to best serve the organization.